OATH & AFFIRMATION

The general rule is that all witnesses give their evidence on oath or on solemn
affirmation. The oath is supposed to be administered or the affirmation done in a
way that the witness declares to be binding. In providing for oath and affirmation
the law contemplates 2 categories of people; Believers or religious persons and
Atheists.

Believers are usually sworn by swearing to the holly book and indicate that they
will tell the truth and nothing but the truth. If a believer objects to be sworn
(certain religions do not allow their faithfuls to swear) if they object they are
affirmed and with affirmation you just put up your hands and indicate that you will
tell the truth.

Under Cap 9 Laws of Kenya there is no difference between an oath and affirmation.
Their effect is still the same. The effect is the same and so if a witness wants to be
sworn in a way that the court considers to be impracticable, the court may require
such a witness to be affirmed.

Insofar as atheists are concerned, if an atheist goes to court and takes a holy book
and swears to it, it is seen as binding. An Atheist can give his/her evidence if they
are sworn without objection. If atheists object to be sworn, then they are affirmed.

The evidence of children of tender years presents difficulties in the realm of oath
and affirmation. The evidence Act does not define who a child of tender years is
but the case of Kibageni defines who a child of tender years is, the case of
1
Kibageni was in regard to compellability. When a court is faced with a child of
tender years, it undertakes a preliminary enquiry to find out whether the child
understands the nature of an oath. The court will find out whether the child knows
what consequences there are for telling lies or telling the truth i.e. when you tell
lies you go to hell etc. if the child understands the nature of an oath, then the child
will be sworn. It may be the case that the child does not know heaven and hell and
the consequences of swearing but the court could still find that the child
appreciates the duty of telling the truth and the child gives sensible answers to the
questions. In that kind of case, the child will be affirmed. It is imperative that the
examination into the child’s understanding is undertaken at the beginning of the
trial. It is not sufficient for the court in the course of the judgment to point out that
it understood the child knew the nature of the oath or appreciated the duty of
telling the truth. The enquiry has to be at the beginning and it has to be on record.
The authority for this is the case of
Macharia V. R

In this case the judge pointed out in the cause of judgment that the court was
satisfied that the children knew the nature of the oath before giving evidence but
there was no enquiry before giving the oath. The court explicitly stated that had
there been no other evidence in this case to corroborate the children’s evidence, the
conviction would have been thrown out. The conviction would not have stood.
John Mututi V. R
Oloo V. R

These two cases state that religious belief is fundamental to the taking of an oath so
that you cannot swear anybody who has no religious belief. So if you have a child
who has no religious belief, such child should not be sworn. That is the law in
2
Kenya. But since people don’t open the book and they don’t object, they
sometimes swear by the wrong book

In England it has been said that religious belief is not fundamental to the taking of
an oath by a child. The authority here is the case of R. V Hayes where the court
stated that the important consideration for a judge in exercising his discretion to
permit a child to give evidence on oath is whether the child sufficiently appreciates
the solemnity of the occasion and is sufficiently responsible to understand that the
taking of an oath involves telling the truth. The judge need not be satisfied that the
child is aware of the divine sanction of an oath.

EXAMINATION OF WITNESSES

The general rule is that a witness shall be examined orally and in open court.
Ordinarily evidence is adduced in the form of questions and answers and it is the

3
questioning which is referred to as examination which means that it is akin to the
ordeal.

Examination of witnesses is covered in parts 3 to 6 of the Evidence Act and the

specific sections are from Section 144.

The party who calls a witness examines the witness with a view to adducing
evidence in proof of his case and this is what is referred to as examination in chief
covered at S. 145(1) thereafter the adverse party has a right to examine that witness.
If the adverse party exercises that right, the examination is referred to as cross-
examination Section 145(2).

After cross-examination of a witness the party calling that witness, the party who
called the witness may examine the witness again with a view to clearing any
ambiguities that may have arisen within the cross-examination and this
examination is referred to as re-examination covered at S. 145(3).

Insofar as the examination in chief is concerned the purpose is to obtain from the
witness in as chronological a manner as possible, evidence that supports the case of
the person calling him or her. The person examining the witness has to control the
direction of the examination, i.e. one has to suppress a too talkative person or bring
them back when they go on a tangent without making them feel intimidated. You
have to be firm with your witness but polite. If a witness looks intimidated by the
processes it is your duty to relax the witness to ensure that they bring out evidence.
Of course when you are examining the witness you have to bear in mind the rules
of evidence. If the witness is not an expert witness, you cannot lead opinion
evidence. You have to have all these to form your examination in chief. If you
4
seek to go against the rules of evidence the adverse party will object and even if
they don’t, the court may overrule you. Essentially there is an assumption that the
officers of the court are armed with rules of procedure.

WHAT TYPE OF QUESTIONS CAN YOU ASK IN EXAMINATION IN

CHIEF

S. 150 of the Evidence Act is to the effect that leading questions shall not if
objected to by the adverse party be asked in examination in chief except with the
court’s permission.

WHAT IS A LEADING QUESTION

Section 149 defines a leading question as any question suggesting the answer
which the person putting it wishes and expects to receive or suggesting a disputed
fact on any question as to which the witness is to testify. For instance in a case of
theft, somebody might ask isn’t it Onyango who you saw stealing from so and so’s
house. Did you see a person steal from so and so’s house.

Under Section 150 objection from the adverse party is required for a leading
question to be disallowed but in most cases, the court will take it upon itself to
disallow all such questions. This is the case because most litigants have no legal
counsel so the court takes it upon itself the role of disallowing leading questions.
The question might arise then as to why don’t you want leading questions to be
asked. The reasons are because such question may elicit false and unreliable facts
especially in cases of witnesses who are afraid of the court’s process. In fact when

5
one asks a leading question of a witness who is afraid, many of them will just say
yes.

It is important that questions in the examination in chief confirm the witness’s

testimony as recorded in his/her statement and this is especially in criminal cases
where persons give statements and then come to court as witnesses.

Previous statements can take various forms, they could be a complaint by a

complainant, statements of accused persons when first confronted with
incriminating facts and such statements will go to prove consistency of the witness.
Consistency in itself may not be a pointer to truthfulness.

WHAT HAPPENS WHEN A WITNESS FORGETS TO TESTIFY ON

WHAT HE WAS CALLED TO TESTIFY ON

Section 167 provides for refreshing a witness memory. As a witness you can refer
to any writing you made of the transaction or a statement you recorded soon after
the transaction. You could also refresh your memory by looking at writing made
by any other person and led by you within a reasonable time within which a
transaction happened.

Note that the writing is not the witness’s evidence; it is what the witness testifies to
after looking at the writing which is not the evidence. What you say after you
refresh the memory is what evidence is.

An expert can refresh their memory by reading a treatise related to their field. This
is provided for in Section 167(4). There is a situation contemplated at Section 168
6
which people confuse with refreshing of memory. Here what is contemplated is
where a witness writes down facts relating to a transaction or immediately after a
transaction, that witness then forgets the facts and then cannot recollect them even
after writing them in the diary. The document here can be admitted as evidence if
the witness swears that they are an accurate record of what happened. Again the
document has to be proved to be a document that is admissible. If you do not have
the document and want to tender secondary evidence, you can only do so under
Section 68 of the Evidence Act.

HOSTILE WITNESSES

A witness that you invite hoping that will give evidence for you but in the
examination in chief you discover that the witness for some unknown reason has
made an about turn is giving evidence contrary to what he/she had indicated they
would talk about. This kind of witness is called a hostile witness and Section 161
gives the court discretion to permit a person calling a hostile witness to cross
examine such witness. Once you have a hostile witness the court can exercise
discretion and allow you to cross examine your own witness. Once a party cross-
examines their own witness that witness is in the same position as the adverse
party and it is going to be incumbent upon the person seeking to cross-examine
their own witness to ask for the court’s permission to do so after declaring the
witness hostile.

HOW MUCH VALUE SHOULD BE ATTACHED TO THE EVIDENCE OF

A HOSTILE WITNESS

7
The evidence of a hostile witness is admissible but it is for the court to determine
what probative value that evidence has by taking all facts into consideration.

Sections 159 to 160 prohibit asking of certain kinds of questions.

Indecent or scandalous questions should not be asked unless they relate to facts in
issue. The adverse party should object immediately if a scandalous question is
asked. It is also the case where an irrelevant question is asked. If the objection is
overruled by the judge and the adverse party still feels that it is sustainable, they
should ask the judge to record the objection, and the ruling and the objection on the
ruling. This is helpful should the objecting party wish to appeal against the ruling.
Failure to object as soon as the question is posed estops one from forever objecting
that questions were asked that should never have been asked.

CROSS EXAMINATION

Cross examination is a right not a privilege and if a person is denied the right, the
denial can vitiate the proceedings. The aim of cross-examination is to disqualify
the case of the adverse party and try to obtain favourable admissions from the
witness. Cross examination need not be confined to matters raised in the
examination in chief. A witness may for instance be asked questions to test his or
her accuracy, veracity or credibility. They may also be asked questions to discover
who they are and what their station in life is, all one is seeking to do is to discredit
the witness. Annoying questions can be asked and it is up to the court to exercise
discretion if they are unnecessarily offensive if they go more than to prove the
matter. Section 154 – leading questions may be asked. If a question is asked of a
witness in cross examination which relates solely to the credit of the witness, the
8
court has a discretion to compel or not to compel the witness to answer the
question, the court decide whether a witness should answer a question that relates
primarily to their credit this is provided for in Section 157. In exercising the
discretion to compel or not to compel, the court weighs the extent to which the
imputation casts on a person’s credit is proximate to the suit.

Section 163 gives ways of impeaching the credit of a witness in cross examination.
You call the witness to testify to the unworthiness of credit of a particular witness.
You can also call proof that a witness has been bribed or that the witness has
accepted the offer of a bribe or any other corrupt inducement to give evidence.
You could also impeach by proving former statements oral or written made by the
witness which are inconsistent with any part of the witness’s evidence.

Fourthly in a charge of rape, or attempted rape evidence can be brought to show

the complainant was of generally immoral character.

In cross-examining, there is no general modus operandi. It depends on the witness

you are dealing with. People will insist that you have a police officer or
professional witnesses, police officers tend to be arrogant especially to junior
lawyers and they are not easily trapped. The best way to deal with them is to start
where they least expect you to start. If you have children, they are good witness if
they have not been coached they will not tell lies. You have to be careful how to
handle them otherwise they can start to cry. One has to be extremely sensitive
when handling children’s witnesses.

John Mutito V. R

9
The prosecution witness produced ghastly photographs of the murder scene which
offended the child and the counsel was cautioned by the court to stop offending the
child.

If you have experts and to avoid embarrassment, do not cross examine them unless
you are well versed with the subject.

RE EXAMINATION

This is a second chance by the person calling a witness. It is not an opportunity to

lead further evidence. It only allows the witness to explain matters referred to in
the examination in chief and cross examination. Re examination normally is to
clarify ambiguous matters. After re examination cross examination is going to be
allowed. Section 146(1).

Section 146(2) examination in chief and cross examination must relate to relevant
facts but cross examination need not be confined to.

Section 146(3) re-examination shall be directed to matters referred to in the cross

examination.

Section 146(4) a party may with the permission of the court recall a party for re
examination. This is recall, there is a right of recall of a particular witness for
further examination and the court in considering whether to allow recall for any of
these purposes has to consider whether the interests of justice would be better
served by recall.

10
There are other rules at Part IV of the Evidence Act and at Section 147 it is
provided that a person called to produce a document does not become a witness by
the fact that he has come to produce the document. It is the document that the
court is interested in and until and unless a person is called as a witness, mere
requirement of a document in court does not make the one who produces the
document a witness.

EXAMINATION AND QUESTIONING OF WITNESSES

The responsibility for determining the admissibility or non-

admissibility of any evidence rests with the court.

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 144. (1) When either party proposes to give evidence of any
fact the court may ask the party proposing to give the evidence in
what manner the alleged fact, if proved, would admissible.

(2) The court shall admit the evidence of any fact if it

thinks that the fact, if proved, would be admissible and not
otherwise.

(3) If the fact proposed to be proved is one of which

evidence is admissible only upon proof of some other
fact, such last mentioned fact must be proved unless
the party undertakes to give proof of such fact and
the court is satisfied with such undertaking.

(4) If the admissibility of one alleged fact depends

upon another fact being first proved, the court may,
in its discretion either permit evidence of the first fact
to be given before the second fact is proved, or
require evidence to be given of the second fact before
evidence is given of the first fact.

.
Examples:-

(a) It is proposed to prove a statement about a relevant fact

by a person alleged to be deed, which statement is admissible
under s.33. The fact that the person is dead must be proved by

12
the person proposing to prove the statement, before evidence is
given of the statement.

(b) It is proposed to prove, by a copy, the contents of a

document said to be lost. The fact that the original is lost must be
proved by the person proposing to produce the copy, before the
copy is produced.

(c) A is accused of receiving stolen property knowing it to

have been stolen. It is proposed to prove that he denied the
possession of the property. The relevancy of the denial depends
on the identity of the property. The court may, in its discretion,
either require the property to be identified before the denial of the
possession is proved, or permit the denial of possession to be
proved before the property is identified.

(d.) It is proposed to prove a fact (A) which is said to have

been the cause or effect of a fact in issue. There are several
intermediate fact (B C and D) which must be shown to exist
before the fact (A) can be regarded as the cause or effect of the
fact in issue. The court may either permit A to be proved before
B, C and D are proved, or may require proof of B, C and D before
permitting proof of A.

143. No particular number of witnesses shall, in the

absence of any provision of law to the contrary, be required to
prove any fact.
13
 ..

The weight to be given to the evidence of one party or the other does not
depend upon the number of witnesses which that party calls; otherwise cases
would become contests as to who could support their case with the most
witnesses. Credibility becomes of prime importance. The result is that in any
case the testimony of a single witness may be sufficient to establish any fact,
unless there is a provision in the law to the contrary, e.g s. 43(3) of the Traffic
Act (Cap. 403), which provides that a person charged with the offence of
speeding is not liable to be convicted solely on the evidence of one witness who
gives his opinion that the accused was speeding.

From SARKAR p. 1236:-

“If any such rule were strictly adhered to, many

crimes would go unpunished. In secret murders even
one witness to the crime is not obtainable and in many
cases courts have to depend upon only circumstantial
evidence. It is not infrequent to find the evidence of
a single witness more trustworthy than the testimony
of half a dozen men who swear against him. All that
the court is concerned with is the quality and not the
quantity of the evidence.”

The order and direction of examination of a witness is controlled by s.146, the

types of examination having been specified in s.145:-
14
 145.(1) The examination of a witness by the party who calls him shall be
called his examination-in-chief.

The examination of a witness by the adverse party shall be called

his cross-examination.
Where a witness has been cross-examined and is then examined by
the party who called him, such examination shall be called his
re-examination.
..

(1) Witnesses shall first be examined –in-chief, then, if the adverse party
so desires, cross-examined, then, if the party calling them so
desires, re-examined.

Subject to the following provisions of this Act, the examination-in-

chief and cross-examination must relate to relevant facts, but
the cross-examination need not be confined to the facts to
which the witness testified in his examination-in-chief.

The re-examination shall be directed to the explanation of matters

referred to in cross-examination; and, if new matter is, by
permission of the court, introduced in re-examination, the
adverse party may further cross-examine upon that matter.

The court may in all cases permit a witness to be called for either
further examination-in-chief or for further cross-examination,
15
 and if it does so, the parties have the right of further cross-
examination and re-examination respectively.

The provisions referred to in s.146(2) refer not only to those covered in

this Chapter, but matters concerning character and credibility covered in
Chapter XIII.

As to the procedure to be followed before the Land Registration Court, it was

held in Umari (Estate of) v. Lands Commissioner, [1967] E.A. 126(K) at p.130
that the court is a “court” within the meaning of the Evidence Act, 1963, and
therefore evidence given before it should be taken in the manner prescribed
by s.146.

On the right to cross-examine, see Bhandari v. Gautama, [1964] E.A.

606 (C.A) in which it was held that the denial of the right of appellant ‘s
counsel to cross-examine the respondent on vital issues rendered the trial
unsatisfactory, resulting in the appeal being allowed.

There are several relevant provisions relating to evidence and

production of documents:-

A person called to produce a document does not become a witness by

the mere fact that he produces it, and cannot be cross-examined
unless and until he is called as a witness.

16
 .

See pp. 185 – 187 on notice to produce documents. If the document is

subject to a claim of privilege; see Chapter III;

142. No person who is entitled to produce a document shall be

compelled to give oral evidence of its contents.

As to examination as to whether certain formal matters are contained in

writing:-

152. Any witness may be asked, whilst under examination, whether any
contract or grant or other disposition of property as to which he is giving
evidence was not contained in a document, but if he says that it was, or if he is
about to make any comment as to the contents of any document which, in the
opinion of the court, ought to be produce, the adverse party may object to
such evidence being given until such document is produced, or until facts have
been proved which entitle the party who called the witness to give secondary
evidence of it.

As to secondary evidence of documents, when admissible, see p .. supra

The use of “leading questions” is restricted:-

17
 Any question suggesting the answer which the person putting it wishes
or expects to receive; or suggesting a disputed fact as to which the
witness is to testify, is a leading question.
..

If A is charged with assaulting B, and the witness is asked: “Did you see
A take a stick and strike B?”. The question is leading. As SARKAR says, p.
1280:-

“It is a question assuming expressly or impliedly a

material fact not testified to, which points out the
desired answer to enable the witness to affirm such
fact”.
In many instances, if the question can be answered “yes” or “no”,
the question will have been leading.

150.(1) Leading questions must not, if objected to by the

adverse party, be asked in an examination-in-chief or in a re-
examination, except with the permission of the court.
(2) The court shall permit leading questions as to
matters which are introductory or undisputed, or which have in
its opinion been already sufficiently proved.

..

Leading questions may be asked in cross-examination.

18
 In many cases a counsel will not object to leading questions, especially if
the information being elicited from the witness is uncontested, or if he feels
that it is not worth his while, .e.g. if the answers are unimportant in relation to
the facts in issue. If, however, he does wish to object, objection must be taken
at the earliest possible moment – when the question is still being asked or after
it has been asked but before the witness has answered. Failure to object will
mean that the objection has been waived.

Counsel generally know what their witnesses will prove, or what they
expect their witnesses to prove, and if they were allowed to ask leading
questions, unfair advantage would be gained over the opposing party, for only
so much of the witness’s evidence as counsel felt appropriate would be
forthcoming.
Leading questions are permitted on cross-examination, for one the
objects is to test the truth and veracity of the witness, as well as his accuracy,
memory, comprehension, etc. Consequently greater leeway is permitted. It is
not, however, permissible for either counsel or the court to ask questions
which mislead the witness by making assumptions which are contrary to fact;
Riano s/o Lenalaimer v. R.[1960] E.A. 960, 963 (C.A).

Other types of questioning are not permissible:-

159. The court may forbid any questions or inquiries which it regards
as indecent, scandalous, although such questions or inquiries may have such
bearing on the questions before the court, unless they relate to facts in issue or
to matters necessary to be known in order to determine whether or not the
facts in issue existed.
19
 .

Note if the answers to the questions are directly relevant, the questions may be
asked, e.g. if the question before the court is custody of a child of a marriage
which is being dissolved, and the conduct of the mother is in issue in
determining whether she is s fit person to have custody.
The Court shall forbid any question which appears to it to be intended to
insult or annoy, or which, though proper in itself, appears to the court
needlessly offensive in form.

If the accused gives evidence on oath, subjecting himself to cross-

examination:-

156.A person charged with an offence and called as a witness for the
defence may be asked any question in cross-examination
notwithstanding that the answer may tend to incriminate him and to the
offence charged.

When a witness, through his conduct, demeanor, attitude,

answers etc. indicates that he is not biased towards the party who
called him but is a “hostile” witness, the court may, in its
discretion, allow the party calling him to question him in such a
way as though he had been called for the opposing party; i.e. the
20
court may permit the witness to be asked questions as though he
were being cross-examined.

The court may, in its discretion, permit the person who calls a witness to put
any questions to him which might be put in cross-examination by the
adverse party.

The scope of questions allowed included questions to impeach the credit

of the witness under s.163; see p.323 supra. Application must be made to the
court to treat the witness as “hostile”; see for example Mabati bin Ruadiba v.
R., (1938), 5 E.A.C.A. 52, 53. SARKAR, p.1315, notes however that the
discretion of the court to permit the putting of leading questions or permit
cross-examination is absolute and independent of any question of hostility or
adverseness and may be given in all cases, thus avoiding the problems which
have arisen in the equivalent section in English law of the definition of
“hostility” or “adverseness”. It is not difficult to visualize, for example a case
in which the court would permit the putting of leading questions to a child of
tender years who, although competent to give evidence must, by necessity,
have his attention direction to the facts about which he is to give evidence. A
personal example was a case in which the author was faced with a situation
where an oriental female, not hostile, when faced with a military court, so
reverted to attitudes of traditional servility that it was nearly impossible to
convince her to give her name and occupation to the court, much less to
account the facts of an alleged assault which had taken place in the nightclub
in which she was employed.

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Refreshing memory by reference to contemporaneous writing

(1) A witness may, while under examination, refresh his memory

by referring to any writing made by himself at the time of
the transaction concerning which he is questioned, or made
so soon afterwards that the court considers it likely that the
transaction was at that time fresh in his memory.
A witness may, while under examination, refresh his memory by
referring to any writing made by any other person and read
by the witness within the time mentioned in sub-section (1) of
this section, if when he read it he knew it to be correct.
Whenever a witness may refresh his memory by reference to any
writing, he may, with the permission of the court, refer to a
copy of such writing, if the court is satisfied that there is
sufficient reason for the non-production of the original.
An expert may refresh his memory by reference to professional
treatises.
.

A witness may testify to facts mentioned in any such writing as is

referred to in section 167 of this Act although he has no
specific recollection of the facts themselves, if he is sure that
the facts were correctly recorded in the document.

Any writing referred to in section 167 or section 168 of this Act

shall be produced and shown to the adverse party if he

22
 requires it, and such party may, if he pleases, cross-examine
the witness thereon.
A witness at a trial may have two kinds of recollection, or recall of
knowledge to his mind:-

past recollection, where the witness cannot actually remember exactly

what happened, or recall the events, but at the time when he did
recall the events, a record of the events was made. The witness
knowing that the record was correct when made, can then use the
record as representing his knowledge on the subject. Past
recollection is covered in s.168, where the witness “testifies to facts”
mentioned in the writing even though he has no specific recollection
of the facts at the time he is giving evidence.

present recollection This is the more common. A witness normally

either remembers the facts without the necessity of having them
refreshed in his mind; or, under s.167, the witness may refer either to
a writing which he made at a time when the transaction was fresh in
his memory, or a writing made by some other person at the time if
the witness read it at the time and knew it to be correct.

The conditions precedent to use of the writing are, either that the
witness made the writing contemporaneously with the transaction or so soon
afterwards that his memory was still fresh, or, if the writing was made by
another, that he read it at the time and knew it to be correct.

23
 The writing which the witness uses to refresh his memory is not itself
evidence, nor is it necessary that the writing would be legally admissible
before it is used. What is evidence is the recollection about which the witness
testifies after having had his memory refreshed by the writing. (s.167 – see
below for distinction with s.168)

If there is a sufficient reason for the original writing not having been
produced, the witness may make reference to a copy after receiving the
permission of the court. The discretion rests with the court.

The writings used for the purposes of ss.167 and 168 must be produced
and shown to the adverse party if he requires, and the adverse party may
cross-examine the witness on the writing. (s.169).

In questions of identity, the Court of Appeal has recommended the use

of Occurrence Books, Diaries, etc. in which descriptions have been recorded,
either to show consistency under s.165, or to refresh the witness’s memory
under s.167; see R. v. Mohamed bin Allui (1942) 9 E.A.C.A. 72.

Section 167’s scope does not include using the writing for the purpose of
contradicting the witness by showing inconsistent answers, which falls under
ss.153 and 163(3), discussed supra see E.A. Navigators v. Grundy. [1959]
E.A.336 (C.A) at pp.342 – 344.

Expert witnesses may use professional treatises to refresh memory: s.

167(4) . See, for example, Sharmpel Singh v. R., [1960] E.A. 762 (C.A) at
p.770, set forth on p. 146, supra.
24
 The proper procedure to be followed is for counsel to lay the foundation
for the use of the writings by eliciting from the witness evidence as to the
writings having been made at the time of the transaction, etc., and then
request the permission of the court for the witness to use the writings to
refresh his memory under s.167. The witness, permission having been
granted, then examined the writings, and questions are asked – not about the
writings – but about the transaction in question. Under s.168, questions are
not asked about the transaction, but to guarantee that the writing contain a
true record of the facts. Under s. 168, the writing is then tendered in evidence,
unlike the procedure under s.167.

Extended powers of the court for the purpose of obtaining proper

evidence

173.(1) A judge or magistrate may, in order to discover or obtain proper

evidence, ask any question he pleases, in any form, at any time, of any
witness, or of the parties, about any fact whether or not it is otherwise
admissible; and may order the production of any document or thing;
and neither the parties nor their agents shall be entitled to object to any
such question or order, nor .. leave of the court, to cross-examine the
witness upon any answer given in reply to any such question;
Provided that judgment shall be based only upon facts are
otherwise admissible and which have been duly proved.
(2) Subsection (1) of this section shall not authorize a judge or
magistrate –

25
 (a) to compel a witness to answer any question or to produce any
document which such witness would be entitled to refuse or answer or
produce under the provisions of Part II of this Chapter, if the question
were asked or the document was called for by the adverse party; nor
(b)to ask any question which it would be improper for any other person
to ask under section 157 or 158 of this Act nor
To dispense the primary evidence of any document, except in the ones
excepted by the provisions of this Act.
.

Section 150 of the Criminal Procedure Code is also applicable to the

questioning of witnesses by magistrate:-

150.Any court may, at any stage of any inquiry, trial or other

proceeding under this Code, examine any person in attendance
although not summoned as a witness, or recall and re-examine any
person already examined, and the court shall summon and examine to
recall and re-examine any such person if his evidence appears to be
essential to the just decision of the case:

Provided that the prosecutor or the advocate for the prosecution or

the defendant or his advocate shall have the right to cross-examine any
such person, and the court shall adjourn in for such time (if any) as it
thinks necessary to enable such cross-examination to be adequately
prepared if, in its opinion, either party may be prejudiced by the calling
of any such person as a witness.

26
 The Court in Mohamed Hussein Ali Mohamed v. R., (1941), 6 Z.L.R. 61
discussed the two equivalent sections as applied in Zanzibar, s.165 of the
Z.E.D. and s.142 of the C.P. Decree in a case where it was urged on appeal
that the magistrate had erred in recalling certain witnesses, re-examining
them and admitting the evidence so obtained without further cross-
examination. In holding that s.142 C.P Decree empowered the court to call or
recall and examine a witness, while s.165 Z.E.D. defined the manner in which
the court may conduct such examination, and limits the right of cross-
examination, the Court said:-
“The provisions of section 142 of the Procedure Decree in no way limit
the power of the Court under section 165 of the Evidence Decree and in no
way enlarge the rights of the parties thereunder.

Here the Court noted that an application and been made under s. 163 of the
Z.E.D. to cross-examine the witness.

Note that the right of cross-examination under s.150 C.P.C. is

mandatory, while under s.173 K.E.A., application must be made to the court
for leave to cross-examine the witness on any answer which is given in answer
to a question of the court, and leave to so cross-examine must be given by the
court before it is allowed.

For cases under equivalent Uganda and Tanganyika sections of the

C.P.C. concerning the court’s duty to call witnesses, see Kulukana Otim v. R.,
[1963] E.A. 253 (C.A.), and Manyaki d/o Nyaganya v. R., [1958] E.A. 495
(C.A).

27
 The section calls into examination the role played by the Court during
the course of a trial:-

“The position of a judge is not that of a moderator

between contestants in a game with no inclination to
interfere till the visitation of its rules. He has a much
higher duty to perform. He has to see not only that
the proceedings are conducted strictly according to
law, but to administer justice and to find out the truth.
He must therefore play an active part and it is not
only his right but it is his duty to ask the witness any
question in any manner, the answer to which in his
opinion would aid in the discovery of truth. In order
to attain this end and to discharge his grave duties, he
may interpose to propound any question to the
witness in any form, leading or otherwise about any
fact relevant or irrelevant. The power to interrogate
on any irrelevant fact must have the sole object of
discovering or finding any clue to some relevant fact
material to the decision of the case.”
SARKAR , p. 1363.

This power to interrogate is exercised within well-recognized limits by

maintaining judicial calm and detachment and without usurping the functions
of counsel. Note also the limitation that regardless of the questions which the
court may ask, or the answers which it may receive, under the proviso to subs.
(1), the judgment can only be based upon facts which are otherwise admissible
28
and which have been duly proved. It is clear, therefore, that the court cannot
admit illegal evidence, or inadmissible evidence through his interrogations for
the purposes of basing its decisions upon it.
Maina Ngotho v. R., [1960] E.A. 453 (C.A.) considered the limits placed
on a court while posing questions to accused during an unsworn statement
from the dock. After quoting s.165 I.E.A., the Court of Appeal on p.455 said:-

“”We think it follows from this section that a trial judge is entitled as a
matter of law to ask questions of a prisoner making an unsworn statement.
This is in accord with the decisions in the two cases referred to by counsel
In R. v. Rirmin bin Kunjunga (1935), 2 E.A.C.A. 64), the presiding magistrate
had questioned the prisoner regarding a discrepancy between his unsworn
statement and his statement at the preliminary inquiry. The court observed:

“The interrogation of the appellant on his statement

at the trial was most improper. No questions should
be asked of an accused person who has not given
evidence on oath unless for the purpose of explaining
or clarifying something obscure or ambiguous in his
unsworn statement. A discrepancy between two
statements is not of itself obscure or ambiguous.

With respect we entirely agree with the limitations there indicated

which ought to be observed by a trial Judge in asking questions of
a prisoner who has also elected to make an unsworn statement. If,
however, a trial judge does exceed the limits there indicated, the
matter, in our view, amounts at most to no more than an
29
 irregularity which is curable under s.381 of the Criminal
Procedure Code unless it ‘has in fact occasioned a failure of
justice.’ ” (emphasised added.

Section 173 does not allow the court to obtain expert advice in a way
which does not allow the parties to hear the expert evidence or purposes
of cross-examination; see Kashibhai D. Patel v. Devraj Hirji & Co.,
(1932), 14 KL.R. 38 where the trial Judge based his conclusion that a
promisory note on which the respondent had sued was signed to the
appellant on a report and photographs furnished by an expert witness
not called to give evidence and not subject to cross-examination.

Subsection (2) places specific prohibitions on the court by setting

forth questions which may not be asked:-

if the claim of privilege could be invoked if the question were

asked or the document called for by the adverse party; ss. 134
– 143 refer, see discussion in Chapter III, supra.
If it would be improper for any other person to ask the question
under s.157 (discretion of court to compel witness to answer
questions as to credit) or s. 158 (necessity for grounds before
attacking character); see discussion pp 320 et seq., supra.
If the questions are asked for the purpose of dispensing with the
primary evidence of a document, except where certain cases
are exempted by the provisions of the Act.

30
 The decision must, of course, be based upon the evidence hear; and
certainly not upon any theory put forward by the court; Okale v. R., [1965]
E.A. 555 (C.A.); nor can a Judge put his own knowledge in a decree without
himself giving evidence; Malim Haji bin Saki v. Mbarook bin Malim, (1918), 1
Z.L.R 623.

Similarly a trial judge is not entitled to refer to passages in depositions

which have not been put in evidence or unless a witness has admitted making
some statement which has been put to the witness from the deposition;
Charles Daki s/o Daki v. R., [1959] E.A. 931 (C.A.). For a case where the
judge imported facts from a committal proceeding which were not given at
the trial, see Kangara s/o Karanja v. R., (1934), 1 E.A.C.A. 74.

If the court is sitting with a jury or assessor, s.174 applies:-

In cases tried by the jury or with assessors the jury or assessors may put
any questions to the witnesses, through or by leave of the judge or
magistrate, which the judge or magistrate himself might put and
which he considers proper.

..

Visits to the Locus in quo

The “locus in quo” is the place where, the place in which, or the place at
which a thing is alleged to have been done or to have happened. Whether the
court elects upon the application of one of the parties, to visit the locus in quo
31
is a matter within its discretion and it has been held in Oloro s/o Daitayi and
others v. R., (1956), 23 E.A.C.A. 493 that a trial judge does not exercise his
discretion unjudicially in refusing to grant an application by the defence for a
view of the site where the offence was alleged to have been committed.

Once the application is granted, it is necessary as a matter of practice

that the accused person and his counsel should be given an opportunity of
visiting the locus in quo in any case in which such visit is considered necessary,
and the result of such visit should be recorded on the magistrate’s return to
court so that the prosecution or defence may be in a position to examine or
cross-examine on any point recorded as a result of the visit; see R. v. Sahib
Singh and others, (1939), 18 K.L.R. (2) 145.

The purpose of the visit to the locus in quo is to enable the court in a
difficult case to understand the evidence better by an actual inspection of the
terrain, and it should not be made the occasion for the carrying out of
investigations which should or could have been done earlier by the police
before the accused person was brought to trial; Mohamedali P.S. Boghani v.
R., (1951), 18 E.A.C.A. 152, 154 Kuyate v. R., [1967] E.A. 815, 816 (C.A).

The correct procedure to be followed were set forth in Kuyata’s case at

p.816, where, after hearing prosecution witnesses in a case involving cattle
theft the magistrate ordered a visit to the locus in quo. The Court of Appeal
said:-

“Clearly the magistrate was not satisfied at this stage

that the appellant’s guilt had been proved, otherwise
32
 there would have been no need to visit the locus, and
equally clearly, in our view, he should then have
acquitted the appellant. It is no part of a magistrate’s
duties to investigate crime; that must be left to the
policy (Boghani v. R.). It is competent of a court to
view the locus at any time during a trial, but such a
view must take in the presence of the accused, his
counsel (if any), the assessors (if any), the prosecutor,
are such of the witness as may be required for the
purposes of any demonstration or explanation. A
view should not be held for the purpose of seeking
additional evidence, but to clarify doubts which may
have arisen in the course of evidence, for instance as
to the nature of the the terrain. A proper note must
be made on the record of what took place, and if
necessary evidence should be recorded if any
additional matter has come to light, and the accused
given an opportunity to cross-examine.” (emphasis
added).

It is important to keep in mind the point made above that the view of the locus
in quo is not for the purpose of seeking additional evidence, not only from the
point of view that this falls beyond the purview of the magistrate’s functions,
but also in that if the magistrate draws inferences and makes deductions from
his view of the premises (as against merely clarifying his understanding of
evidence given), in fact he constitutes himself a witness in the case who is

33
exempt from cross-examination, see R. v. Iman Din and others, (1910), 3
E.A.L.R. 107.

The effect of improper admission or rejection of evidence.

The improper admission or rejection of evidence shall not of
itself be ground for a new trial or for reversal of any
decision in a case if it shall appear to the court before
which the objection is taken that, independently of the
evidence objected to and admitted, there was sufficient
evidence to justify the decision, or that if the rejected
evidence has been received it ought not to have varied
the decision.

In early cases there were apparently two choices as to whether a

conviction would be upheld; see Murarji Mamla v. R., (1913), 1 Z.L.R. 436 in
which the court followed the view of the High Court Bombay as against that of
the High Court, Calcutta in stating that it would uphold a conviction if the rest
of the evidence were satisfactory; here evidence had been taken in the absence
of an accused in a trial with assessors. The editors of the volume noted,
however that when the volume was compelled that appeals were heard by the
E.A.C.A., and thought that the Court would not feel itself bound to give
preference to the Bombay view.

Application of the section is best seen from the various cases, e.g. R. v.
Nand Singh and Harish Chandra, (1945), 12 E.A.C.A. 100; R. v. Lemoiyo ole
Ipei, (1944), 22 K.L.R. (1) 120(2); Nazim Din v. Devonshire Stores, [1958] E.A.
729 733 (C.A.), civil case.
34
 In Solemn bin Habit v. R. (1903), 1 Z.L.R. 152 the procedure had been
used of reading over depositions of witnesses given in a previous trial to them at
the subsequent P. I., and asking them if they were true, and then allowing the
appellant to cross-examine and committing him for trial. The appeal court
called this procedure very irregular and contrary to the express provisions of
the C.P.C. It was held, however, that the direct evidence of already executed
accused, or the reading of their depositions at the trial, would not have varied
the decision, and that therefor the omissions, even if they amounted to the
improper rejection of evidence, were not (by s.167 Z.E.D.) grounds for
interference by the appeal court.
In C.R. De Souza v. Festanji Dhanjibhai, (1883), 1 Z.L.R. 22, a
Mohamedan residing at zanzibar had let cut a house situated there to the
defendant, to be held by the latter as long as he pleased, under a lease in which
he (the lesser) stipulated never to remove the lessee. The plaintiff tendered
evidence to show that by the custom of Zanzibar, the defendant’s tenancy was
determined upon the sale of the land by the landlord. The evidence was refused.
The appeal court, citing s.167 Z.E.D. held that the alleged custom, even if
proved, was invalid. It was unreasonable, as enabling a man after having
granted a lease, to deprive the lessee of the entire benefit of his lease. The
exclusion of evidence in the lower court was not sufficient ground for reversing
that court’s decree, unless the appeal court comes to the conclusion that the
evidence refused, if it had been received, would have varied the decision.
The court in Sondali s/o Aidi v. R., (1952), 1 T.L.R. ( R ) 372, in
holding that an appeal court need not decide an appeal in favour of the
appellant if satisfied that in spite of the admission of inadmissible evidence no
substantial miscarriage of justice has occurred, relied on English decisions
35
construing the proviso to s.4(1) of the Criminal Appeal Act of England, noting
that the principles were differently expressed in s.167 I.E.A.. The Court
referred to P. Haddy, (1944) K.B. 442, 29 Cr. App. R. 182 and Stirland v. D.P.P.
(1944), A.C. 315, 30 Cr. App. R. 40

Stirland’s case was also referred to in Ali bin Hassan v. R., [1960] E.A.
171 (Z) in a case involving inadmissible evidence of the bad character of the
accused; see discussion p.314, supra; there it was held that a substantial
miscarriage of justice had occurred by the magistrate allowing evidence of the
accused’s bad character to be led. Similarly in Antonio Bagandasanwa v. R.,
(1956), 7 U.L.R. 190, it was held that where the failure of justice involved
evidence of an accused’s bad character, the error is not curable under the
section. The court distinguished Kartar Singh Bharaj v. R., (1953), 20 E.A.C.A.
134 and R. v. Murray, (1945), 21 K.L.R. (2) 26, neither of which dealt with
evidence of bad character, and quoted from D.V. Mehta v. R., U.H. Ct. Cr. App.
No. 521/1945 (unreported) in which it was said:-

“ the deliberate taking of evidence of a

previous conviction except where permitted by law,
before judgement is such a breach of principle and
procedure as to be incapable of cure under section 34 of
the Criminal Procedure Code.”
then holding:-

“Nor, from the authorities I have cited, does it appear

that section 165 of the Evidence Ordinance will avail
where there has been a failure of justice of this nature.”
36
 EVIDENCE OF CHARACTER

Character of a witness means not only the witness’s disposition but his/her general
reputation in the community. When admissible generally character affects the
credibility of the witness. Section 58 of E.A. defines Characters as follows:

“Character denotes both disposition as well as general reputation of a person

37
disposition refers to the inherent qualities of a person and these are the qualities
that a person acquires through their up bringing,; education or material conditions
in life. Essentially the argument is that you are going to be predisposed to act in a
particular way because of the way you were brought up, or because of how you
live and your education and the material condition in which you grew up. The way
to tell a person’s disposition is thro observing that person. This is a person’s
inclination, how are they likely to behave under particular circumstances?

Reputation is more specific than disposition, it refers to the general estimation with
which a person is held. For instance you may have the reputation of being a liar
and people will perceive of you as someone who lies. These will be people with
whom you work and people who know you generally. It is the net effect of the
interaction that you have with other people. With disposition, you have no control
over, you could try but a lot of it has to do with what one is predisposed to but with
reputation it is the way the people perceive of you.

Definition of character at S. 58 is traceable in English legal history. There is no

distinction here between reputation and disposition and they are used
interchangeably as if they were the same. Amongst the early English cases that
conceded the evidence of character is the case of
R v. Rowtown(1865) LJMC 57

In this case the accused was charged with indecent assault and he gave evidence of
his good moral character. The prosecution to rebut this evidence of this good
moral character called a person who testified that he had no knowledge of the
neighbourhood’s opinion but his own opinion was that the accused was a man
38
capable of the grossest indecency and the most flagrant immorality. He said that
this is also the opinion of his brothers who were the accused’s pupils held. The
question was whether this evidence admissible. The court held that it was not
admissible because it was based on the witness’s own opinion as opposed to the
opinion of the community. There was a dissent and two judges dissented arguing
that the evidence ought to have been admitted because it was based on the
witness’s intimate knowledge of the accused rather than that of the community.
The court was still of the view that since it was not a general neighbourhood
opinion, it was not admissible.

In this case the court was overemphasising the need for big numbers to hold a
similar view before the evidence could be admitted. Courts seem to use
disposition and reputation interchangeably and it seems confusing.

Malindi v. R (1967) 1 AC 93

When is the evidence of character admissible?

There is a distinction between criminal and civil cases.

CIVIL CASES

In civil cases the general policy is to reject evidence of the character of the parties
and this is provided for in Section 55 of the Evidence Act. It contains the principle
that in civil cases in general, evidence of the character of the parties will be
rejected. Evidence of Character in civil cases cannot be lead to establish the
commission of a wrong by a person nearly by bringing their character before the
39
court. The argument is that the business of the court is to try the case before the
court. One is not supposed to be interrogating or inquiring into a person’s entire
life and if one brings extraneously details about the person’s character you are
making a person defend their whole lives. The general principle is that in civil
cases, evidence of character will not be admissible. There are however 3
incidences when it will be admitted
(a) When such character is in issue or directly relevant to the issue; for
example where you have a libel suit and justification is pleaded, then the
person pleading justification must be permitted to show that the person
instituting the libel suit is of the character presented in the alleged
libellous matter. S. 55 (1) … section 5 is relevant here, evidence of
character will be admitted where the character is in issue or directly

(b) When the character is such as to affect the quantum of damages. Section
12 is authority as well as Section 55(2) an example is again a defamation
suit which is vindication of a person’s reputation. If you can show that a
person has not reputation, than is relevant to the quantum of damages.
Evidence of character will be admissible in this case.

(c) The character of a witness is always relevant to his credit. Section 154 of
the E.A. cross examination as to credibility. Accuracy, veracity and
character. Where it is relevant in determining the credibility of the
witness.

Outside those 3 incidences, then one cannot call for evidence of character.

CRIMINAL CASES
40
A distinction in criminal cases is made between evidence of good character and
evidence of bad character in S. 56 the fact that an accused person is of good
character is admissible and the admissibility of the good character evidence
pertaining to the accused person has reigned even before 1898, i.e. the period when
the accused person was not competent to testify. Before the accused person was
competent to testify the evidence of good character went to establish their
disposition that being a good person you were unlikely to have stolen or murdered
etc. for example if an accused person was accused of stealing that would call on
the court to investigate the matter. After the accused was made a competent
witness, then evidence of good character went to credibility than to their likelihood
of having committed an offence.
Section 56 states that evidence of good character is admissible. After statutes
made the accused competent in 1898 the accused was given an option to testify or
not to testify and this put the accused person in a dilemma, if he chose not to testify,
an adverse inference might be drawn or could be drawn against him. People may
draw an inference that one who refused to testify has something to conceal.

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

It is explicitly provided that the prosecution has no right to comment on the silence
of an accused person. S. 77 mandates an accused to keep silent.
41
The question has arisen that since the prohibition of commenting is on the
prosecution, can the judge comment. Under S. 127 (2) (3) and in the case of

R v. Bathhurst (1968) 2 QBD 99

This case considered the question whether prohibition binds the judge. The judge
could only properly tell the jury that
(i) The accused has a right not to testify;
(ii) They must not assume that the accused is guilty because he does not
testify even though they have been deprived of the chance to test the
story told in cross-examination.

If the accused person chose not to testify, it should not be made a subject by the
prosecution but if the accused person opts to testify, he is treated like an ordinary
witness and can be cross-examined.

What is the provision of law on how one deals with the witnesses?

Section

In the case of Maxwell v. DPP (1935) AC

In that case it was intimated that the accused person had a shield protecting him
from cross examination from previous record or antecedents unless he threw the
shield away or unless the evidence of such previous records or antecedents had a

42
bearing of guilt on the present case. Examples of ways in which an accused could
throw the shield away
(i) If he gave evidence of his good character he would be deemed to have
thrown the shield away
(ii) If he cast aspersions on the reputation of the prosecutor or the
complainant he would be said to have thrown the shield;
(iii) If he gave evidence against a co-accused with whom they were charged
with the same offence.

It would seem that apart from these 3 incidents the accused would be treated like
an ordinary witness and could not be asked irrelevant questions.

Sections 156 and 57

S. 57 and 156 embody these rules.

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

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

Scholars of evidence have tried to explain away the apparent contradiction and Sir
Cross on Evidence tries to reconcile those views by saying that under S. 156 one
would have to be looking at the narrow construction of the contradiction limiting S
43
156 to instances where questions permitted would incriminate the accused person
directly and disallowing those that do not incriminate him indirectly.

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

Section 57 has exception.

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

Cockar was charged with breaking and entering with intent to steal. In his defence
he alleged that he had entered for the sake of warmth and sleep. Evidence was
adduced of a similar charge in the past where he had also pleaded for similar
evidence and had been acquitted of that similar charge. He was convicted based on
the evidence of the previous antecedent and he appealed on the ground that the
conviction was based on inadmissible evidence of the previous offence. The court
held that the conviction should be quashed because the matters relating to the
previous antecedent did not result in conviction and was therefore outside the
purview of the English equivalent of Section 57 (1) (a).

44
The court is saying here that for similar fact evidence to be admissible as an
exception to S 57 (1) (a) it has to have been a conviction.

Section 57 (1) (b)

Evidence of bad character is admissible where the accused has personally or by his
advocate asked questions of a witness for the prosecution with a view to
establishing his own good character then he could be questioned on bad character.
Here we go back to S. 56 where we said that evidence of good character is
admissible but it lays the path open for prosecution to counter that evidence. If an
accused person is telling the court that he is a good evidence, the prosecution can
show the court that he is not such a good person after all. The accused lays himself
bare for the prosecution to show the court that he is not as good as he alleges.

Maxwell v. DPP

Maxwell a medical doctor was charged with illegally procuring an abortion. He

denied the offence and stated that he had a good clean moral life and upon his
assertion that he had a good clean moral life, the trial judge allowed the
prosecution to cross-examine him on another charge where he had been charged
with procuring an abortion but he had been acquitted. It was held that the previous
charge was not evidence of bad character because it did not result in a conviction.
But over and above that the court stated
“if the prisoner by himself seeks to give evidence of his own good character for the
purpose of showing that it is unlikely that he committed the offence charged, he
raises by way of defence an issue as to his good character so that he may be fairly
cross-examined on that issue to show the contrary. The reasons that you have
cross examination on the accused is for two purposes
45
 (i) To demolish the defence that the accused puts forward and this goes to
the issue;
(ii) To demonstrate that the accused is an unreliable person even on oath, so
this goes to credit.

The accused walks a very tight rope and one wonders whether this Section 57
intended to hamper the accused defence and case law is to the effect that when an
accused person denies an offence or asserts that he is innocent does not assert to
good character. Mere denial of an offence or assertions of innocence should not be
construed as good character as this would incapacitate the accused from preparing
a defence and a line has to be drawn between mere denials as against assertions of
good character.

R. V. Ellis (1910) 2 QB

Ellis dealt with antiques and was charged with obtaining cheques from customers
by false pretences concerning the cost price of the antiques. He cross-examined
prosecution witnesses with a view to showing that his conduct towards the
customers was not consistent with an intention to defraud. The prosecution sought
the court’s leave to cross-examine him on previous antecedents but the court
declined pointing out that the accused by examining the prosecution witnesses was
not asserting his good character. He was attempting to establish his innocence.

If the accused person gives reasons for his innocence dependent on the court’s
assumption that he is an honest man, then this can amount to evidence of good
character (to what purport is this evidence that the accused person is giving what
assumption does he want the court to have?)
46
R V. Samuel (1956) 40 C.A. R 8

Ali bin Hassan v. R

R v Winfield

The accused was charged with indecently assaulting a woman. evidence was given
of the accused good character. He had a previous conviction for larceny. The
court allowed the prosecution to cross-examine him on his previous antecedent
much as this was a trial for assault and the question was whether this was proper.
The court held Yes because there is no such things in legal procedure as putting a
part or a fraction of a prisoners character in issue and leaving the other part. A
prisoner that puts his character in issue must be deemed to have put his whole
character in issue.
This issue was carried further in Stallen v. DPP

On a charge of forgery an accused person put his good character in issue by saying
in cross-examination that he had never been charged with any offence. The
prosecution asked him in cross-examination whether on leaving a certain
employment, he had been question about an alleged forgery. The accused denied.
He was convicted and he appealed. And the court held that the accused may be
cross-examined as to any evidence given in the examination in chief including
statements as to his good character. The court went on to state “an accused who
puts his character in issue must be regarded as putting the whole of his character
in issue. He cannot assert his good character in certain respects without exposing
himself to an inquiry about the rest of his record so far as that tends to disprove
47
claim of goods character.” When one puts their good character in issue, the court
is entitled to know about your whole character because you have brought it forth.

What happens when it is not the accused who asserts his own character but a
witness without any prompting, with this open up the accused person to be
interrogated on his good character.

R V. Reid (1923) 1 KB 104

Which answered this question by asserting that such an occurrence does not entitle
the prosecution to bring in previous antecedents.

57(1) © - where nature or conduct of the defence is such as to involve imputations

on the character of the complainant or of a witness for the prosecution. If an
accused person raises an issue in his defence that casts aspersions on the
complainant or witness he can be questioned on the good character

Rivers Artheston Royston V. R

The accused was charged with obtaining money by false pretences from various
persons. He admitted receiving the money but denied using false pretences. In
cross examining the prosecution witness with a view to furthering his defence, to
the charge of false pretences, he cast aspersions on their characters. The court
thereupon allowed the prosecution to cross examine him on his previous
antecedent. He was convicted and appealed against conviction on the ground that
the previous antecedents were wrongly admitted. The court of Appeal held that the
previous antecedents were wrongly admitted and in their words, “where
48
imputations involving the character of prosecution witnesses are an integral part of
the defence, without which the accused cannot put his case before the jury, fairly
and squarely, he cannot be cross-examined on his previous criminal history. (this
is what is being referred to as an integral part of the defence)

Omondi V. R (

The Appellants were charged with robbery with violence. During cross
examination the first appellant suggested that the Police Sergeant who had given
evidence against him was deliberately committing perjury. Thereafter the court
allowed the prosecution to put questions to the first Appellant touching on his first
convictions. The Appellants were convicted. They appealed challenging
admissibility of evidence of past convictions. The court held that to challenge the
evidence of a witness for the prosecution is not to cast aspersions on the character
of the witness within the meaning of S. 57. the court emphasised the latter part of
Section 57 (1) (c) which in their wording meant that if the defence involves a
proposition that the jury ought not believe the prosecution, or one of he witnesses
for the prosecution, then the jury also needs to know what kind of character the
prisoner has. It looks like in this case the line is very thin, if you are saying that
the witness for prosecution is not to be believed, then the court need to know if you
are to be believed. What amounts to casting aspersions, it is not clear since they
will hold it as casting aspersions in one case and in the other as an integral part of
the defence.

Abdulla Katwe V. Uganda

Selvey v. DPP
49
This was a trial on a charge of buggery. The defence was that the complainant was
a male prostitute soliciting the appellant. The trial court allowed the appellant to
be cross-examined on previous convictions of indecency. He was convicted and
appealed. The court held that cross-examination of an accused on previous
convictions of bad character was permissible under the Acct if the nature and
conduct of the defence involved imputations on a prosecution witness
notwithstanding that the imputations were necessary as part of the accused answer
to the charge. It also held that the trial court had a discretion to refuse to permit
cross examination of an accused person as to the previous convictions even though
the cross-examination was permissible under the Act.

Legal opinion seems to suggest that SELVEY V. DPP overrules it is not clear
when the integral part of defence theory will operate and when it is casting
aspersions. The leeway of discretion on the part of the judge is that the

In Kenya, and East Africa, cross-examination on previous antecedents is not

permissible if it is vital for the defence to raise issue of the character of the
complainant. Over and above that the court still has discretion to disallow
evidence of previous antecedents if they are casting aspersions on the complainant,
where the way is opened up the courts still have a discretion to disallow evidence
where its probative force is outweighed by its prejudicial effect.
Immediately after (d)
S. 57 “provided that the court may … proviso to S. 57 as well as rendition to the
case of Omondi v. R

50
Paragraph 57 (1) (d)

An accused person can be questioned on his previous antecedent if he gives

evidence against any other person charged with an offence

Murdoch v. Taylor

Where it was stated that evidence against a co-accused is evidence for the
prosecution against the co accused and it therefore undermines your defence as an
accused person opening up the way for the prosecution to question him on his
previous antecedents.

It is critical that the evidence that a person gives against the co-accused be
supportive of the prosecution case as this is only when the way is opened to
question the person on their previous antecedents. For evidence of an accused bad
character the sections of 57 (1) (b) . this is different from what happens after
prosecution where the prosecution can furnish the court with documents of
previous antecedents to assist the courts in sentencing.

CHARACTER AND CREDIBILITY OF WITNESS

The “character” of a witness means not only his disposition, but his
general reputation in the community. Character, when admissible,
affects the credibility of the witness.

51
 Those instances in which the character of an accused is admissible
through admission into evidence of previous or similar occurrences, or of
previous convictions to show system, state of mind, or feeling, have been
covered in the discussion of ss.14 and 15; see pp.16 – 23, supra.

Definition of character.

In sections 55, 56 and 57 of this Act, the word “character” includes both
reputation and disposition; but, except as provided in section 57,
evidence may be given only of general reputation and general
disposition, and not of particular acts by which reputation or
disposition were shown.

THE SHORTER OXFORD ENGLISH DICTIONARY defines

“reputation”as

“The common or general estimate of a person with respect to character or

other qualities; the relative estimation or esteem in which a person is
held.”

“Disposition”, as relevant, is defined as

“The state or quality of being disposed (to, or to do something);

inclination (Occas. – desire, intention).

Thus the “disposition” of a man, rather than meaning that he had a

“cheerful” of “unpleasant” disposition, here means whether he is disposed
52
to do certain kinds of acts, or disposed to act in a certain way in relation
to a particular situation.

Character in civil cases.

55. (1) In civil cases, the fact that the character of any person concerned s
such as to render probable or improbable any conduct imputed to him
is inadmissible except in so far as such character appears from facts
otherwise admissible.
In civil cases, the fact that the character of any person is such as to
affect the amount of damages, is admissible.
.

Subs. (2) is particularly applicable in civil cases involving questions

of exemplary damages, i.e. damages awarded to compensate the plaintiff
for what the court considers deplorable or outrageous conduct by the
defendant and (in effect) by way of punishment for it, and aggravated
damages, additional damages awarded to a plaintiff because the
defendant’s conduct was, for example, willful or malicious. These
damages are awarded only in special circumstances; see J.G. M. Cyas,
LMW OF TORTS, pp. 181 – 182.

Character in criminal cases

56. In original proceedings, the fact that the person accused is of good
character is admissible.

53
 .
AMENDMENT OF s.57(1):-

The Statute Law (Miscellaneous Amendments) Act 1969 (No.10 of 1969)

amended s.57(1) so as to do away with the criticisms voiced by RUDD, J.
in Mugo v. R. commencing on p.10.
The amendment reads:-

Immediately after the words “is admissible unless – ”

Add a new paragraph as follows:-

(aa) such evidence is otherwise admissible as

evidence of a fact in issue or is directly
relevant to a fact in issue; or

57.(1) In Criminal proceedings the fact that the accused person has
committed or been convicted of or charged with any offence other
than that with which he is charged, or is of bad character, is
inadmissible unless-

(a) the proof that he has committed or been convicted of such

other offence is admissible under section 14 or section 15 of this Act
to show that he is guilty of the offence with which he is then charged;
or

54
 (b) he has personally or by his advocate asked questions of a
witness for the prosecution with a view to establishing his own good
character or

(c) the nature or conduct of the defence is such as to involve

imputations on the character of the complainant or of a witness for
the prosecution; or

(d) he has given evidence against any other person charge with
the same offence:

Provided that the court may, in its discretion, direct that specific
evidence on the ground of the exception referred to in paragraph(s)
of this subsection shall not be led if, in the opinion of the court, the
prejudicial effect of such evidence upon person accused will so
outweigh the damage done by imputations on the character of the
complainant or of any witness for the prosecution as to prevent a
fair trial.

(2) Notwithstanding the provisions of subsection (1) of this

section, evidence of previous conviction for an offence may be given
in a criminal trial after conviction of the accused person, for the
purpose of affecting the sentence to be awarded by the court.

55
 Subsection 1(a) has recently been severely criticized by RUDD Ag.
C.J. of Kenya in Mugo v. R. [1966] E.A. 124 (K) at pp.127 – 128. There
the argument was advanced, on the basis of the wording in the subsection,
that where accused were charged with more than one count, a court
should direct itself that any evidence which .. that an accused was guilty
of an offence on any one of the counts, was inadmissible and could not be
taken into account when considering any of the other counts, For a fuller
understanding of the subsection, the relevant portions of the decision are
set forth at length:-

“With all due respect para (a) of this subsection is very badly
phrased and should be amended as quickly as possible because as at
present framed it departs from the well accepted rules of evidence. It
never was the law that evidence of the commission of similar offences
could only be admitted in the circumstances and for the purposes set out
in ss.14 and 15 of the Act where the defence has not put the accused’s
character in issue, yet that is what the subsection seems to say. If this
subsection were to be given a full interpretation in that sense the result
would be farcical.

Suppose a police officer came across a person whom he knew had

escaped from lawful custody while serving a lawful sentence of
imprisonment and suppose that the police officer was murdered by that
person while attempting lawfully to arrest him for escape, then in those
circumstances it could never have been the intention of the legislature it
enact that the escape, which is an offence, could not be proved in order to
establish that the attempted arrest was lawful. Nor would it have been
56
the intention of the legislature to enact that evidence of the escape could
only be admissible on the trial for murder if the charge or information
contained a count for escape as well as a count for murder.

Again in the case of a prosecution for corruption of a man who, on

being arrested for another offence which he had previously committed,
offered a bribe to the person effecting his arrest in order to obtain his
release corruptly, it could never have been the intention that evidence
could not be adduced to prove the fact of the original offence which is
relevant as showing motive for the corruption under s.8. One could
multiply instances of cases where it would be quite farcical to give s.57 its
full meaning according to the words used. The section cannot have been
intended to prohibit evidence of the commission of an offence other than
that charged in all cases except to those where the evidence is admissible
under s.14 or s.15 of the Act. It cannot have been intended to prohibit
such evidence where it is directly relevant to the facts in issue.

We have no doubt but that the object of s.57(1)(a) was to prohibit

evidence of previous offences where its effect would be merely tendentious.
[Having a proposed tendency; composed of written with such a tendency.
A false and tendentious account of what has happened.] It was intended
to prohibit evidence of previous offences or charges where the only effect
of such evidence would be to show merely that the accused had a tendency
or propensity to commit offences similar to that with which he has been
charged and to prohibit evidence merely of bad character where the
accused’s character has not been put in issue in one of the accepted ways
in which that can be done.
57
 The clue to the real intention of the legislature is to be found in the
marginal note to s.57 which reads ‘Bad character in Criminal Cases’.
[There here followed a discussion of the use of marginal notes in
construing statutes; see discussion; Introduction, p.ix, supra] when,
therefore, s.57(1)(a) made evidence of previous convictions and the like
inadmissible it was doing so only when the evidence would merely go to
bad character, criminal propernsity and the like and it seems to us that it
could not have been the intention to prevent the admission of evidence of
the commission of another offence when such evidence was admissible as
evidence of a fact in issue or directly relevant to a fact in issue.”

The holding of the case in the headnote to the case sets for the proper
construction of the subsection:-

“Held (1)
(2)s. 57(I) (a) of the Evidence Act, 1963, properly
construed in conjunction with the marginal note, was
intended to prevent evidence of previous offences or charges,
the accused’s character not being in issue, where the only
effect would be to demonstrate a tendency or propensity to
commit the offence in question; consequently the section
could not be used to exclude evidence of the commission of
another offence when such evidence was admissible as
evidence of a fact in issue.”

58
It is well again to note that the above decision emphases the deeply rotted
and jealously guarded principle of the law of evidence as conceived in
England”, in full force and effect in Kenya, that:-

“It is undoubtedly not competent for the prosecution to

adduce evidence tending to show that the accused had been
guilty of criminal acts other than those covered by the
indictment, for the purposes of leading to the conclusion that
the accused is a person likely from his criminal conduct or
character to have committed the offence for which he is being
tried.” Makin’s case, reiterated in John Makindi v. R. [1961]
E.A. 327 (C.A)

The example given by RUDD. Ag. C.J. commencing with the last
paragraph on p.310 is, incidentally, supported by Ndagusas Ole Lelengusi
v. R. (1949), 16 E.A.C.A. 155, where the Court said:-

“As regards the criticism that in the cross-examination of the

appellant inadmissible evidence as to previous convictions
were elicited, we refer to section 159 proviso (6)(a) of the
Kenya Criminal Procedure Code. It was necessary to
establish that the action of the police in seeking to arrest the
appellant was lawful otherwise it might not have been murder
on the part of the appellant to resist arrest with violence and
the cross-examination of the appellant [during which the
appellant had admitted he had been sentenced to 18 months
imprisonment for stock theft and had escaped after 2 months]
59
 was directed to, and did in fact, elicit the justification for the
arrest of the appellant.”

NOTE: Prior to the enactment of the K.E.A., provisions relating to

questions showing the commission of an offence not charged were found
in the Criminal Procedure Code, s.159(6), Laws of 1948. The subsection
read:-

(6) A person charged and called as a witness in pursuance of this

section shall not be asked, and if asked shall not be required to
answer, any question tending to show that he has committed or
been convicted of or been charged with any offence other than that
wherewith he is then charged, or is of bad character, unless -

(a) the proof that he has committed or been convicted of such

other offence is admissible evidence to show that he is guilty of the
offence wherewith he is then charged; or

(b) he has personally or by his advocate asked questions of the

witnesses for the prosecution with a view to establishing his own
good character, or has given evidence of his own good character, or
the nature or conduct of the defence is such as to involve
imputations on the character of the complainant or the witnesses
for the prosecution; or

60
 (c) he has given evidence against any other person charged with
the same offence.

Subsection 6(a) is substantially incorporated in s.57(1)(a); subs. 5(b) in

s.57(1)(b) and (c) and subs.6(c) in s.57(1)(d).

Innuendoes of bad character, as well as direct evidence of bad

character, are inadmissible; Lighton v. R., (1951), 18 E.A.C.A. 309.

Subsection 57(1)(c) involving imputations on the character of the

complainant or prosecution witnesses is subject to limitations. The
section does not mean that any imputation as to character subjects the
accused to cross-examination on his own character. The matter is
discussed at length in Rivers Atherstone Royston v. R., (1953), 10
E.A.C.A. 147, with an examination of English authorities inasmuch as
proviso 6(b), above, (and hence subs.57(1)(c) are textually the same as
section 13 of the English Evidence Act, 1898. In that case the Court of
Appeal held that:

“Where imputations involving the character of prosecution

witnesses are an integral part of the defence without which
the accused cannot put his case before the jury fairly and
squarely, he cannot be cross-examined on his previous
criminal history.”

61
 AINLEY, C.J in interpreting the words of s.57 (1)(c), “ the nature
or conduct of the defence is such as to involve imputations on the
character of a witness for the prosecution” noted:-

“ Now no strained interpretation should be given to these

words, otherwise the centuries old rule that an accused person may
put forward any defence he wishes without running the risk of a
disclosure of his past misdeed will be largely abrogated. To move a
step at a time, it is surely apparent that to give an account of affairs
which differs from the account given by a witness for the
prosecution will not let in questions and evidence as to character
and past convictions against an accused even if it is apparent that
either the accused or the witness must be committing perjury.
CHANNELL, J. in R. v. Preston([1909] 1 K.B. 575) said in
reference to para. (f) of s.1 of the English Evidence Act 1898 :

‘The latter part of the section is that which it is material to

consider in the present case. It appears to us to mean this:
that if the defence is so conducted, or the nature of the
defence is such, as to involve the proposition that the jury
ought not to believe the prosecutor or one of the witnesses for
the prosecution on the ground that his conduct – not his
evidence in the case, but his conduct outside the evidence
given by him – makes him an unreliable witness, then the jury
ought also to know the character of the prisoner ’

62
The italics in the passage we have set out are our own. Clearly that
dictum, with which we very respectfully agree, is applicable to s.57
of our Evidence Act. Provisions of the kind we are considering are
no doubt designed in part to restrain scandalous attacks on honest
men by men of evil character, but the true ratio is surely that
suggested by CHANNELL, J.. Now it must be noted how careful
CHANNELL, J. was to indicate in effect, that to challenge a
witness’s evidence is not to conduct the defence so as to impugn the
character of the witness within the meaning of the provision. How
much the less does an accused conduct his defence so as to let in
evidence of bad character if he merely gives an account of affairs
which differs, albeit radically and irreconcilably, from the
prosecution evidence? But then what if he days, having given his
version of the facts. ‘This is what happened, and Mr. X who has
said otherwise is a liar’? Of course, if he goes on to explain that
Mr. X is a notorious liar who has been twice convicted of
perjury, then the mischief is done. But if it is apparent that he is
merely asking that his word should be accepted as against that of
Mr X there is surely no ground whatever for saying that the
circumstances envisaged by para.(c) of s.57(1) exist. A situation
has now arisen where in the interests of justice a jury or a court
should know the character of the accused. The court is faced only
with its everyday task of deciding which of two men is telling the
truth. Each has implied or asserted that the other man is
untruthful, but that is all. It is a situation which arises every hour
in a magistrate’s court and every magistrate should know that in a
criminal case he must resolve that kind of conflict without taking a
63
 look at the accused’s prison record. “Omondi v. R., [1967] E.A. 802
(K) at pp. 805 – 806.

Royston v. R., supra, was referred to, and the principles set forth
applied, in Abdulla Katwe v. Uganda [1964] E.A.477 (U) where the court
considered a case where counsel insisted, after warning, in putting
questions to a prosecution witness which indicated that the case against
the accused had been fabricated. On p.479 the Court, in deciding that,
under the circumstances, the cross-examination of the accused on his
character was admissible, said:-

“Was the question put by counsel for the appellants to

Inspector Kasoro and the imputations contained in that question
necessary to enable the accused’s defence to be put fairly and
squarely before the court?
It was clearly necessary for counsel for the appellants to
suggest to the Inspector that his evidence was untrue. Such a
suggestion would not in my judgment entitle the prosecution to
cross-examine the accused or any of them as to their character. It
seems to me, however, that in suggesting to Inspector Kasoro that
he had planted the stones in the appellant’s car and that he had
obscured the number plates with grease and sand, counsel was
going beyond what was necessary to put his client’s case before the
court. None of the appellants, when giving evidence, said that the
police had planted stones in the appellant’s car or that the police
had obscured the number plates of the car. In making these two

64
 imputations counsel for the appellants went beyond what was
necessary for the proper and fair presentation of his client’s case.

In short, then, if the questions raising imputations of character on

the part of the complainant or prosecution witnesses is necessary to put
the case fairly and squarely before the court, cross-examination of the
accused on his own character is not permissible, but if the questioning
goes beyond what is necessary, on the ground that the court ought not to
believe the witness owing to his conduct outside the evidence given, the
accused leaves himself open to the presentation of evidence concerning his
own bad character.

Similarly, if the accused himself brings his own bad character into
the case, evidence of his bad character may be presented, but only if one
of the conditions precedent in the section are brought into play. Ali bin
Hassan v. R., [1960] E.A. 171 (.) involved a situation where the accused,
conducting his own defence, elicited from a police constable during cross-
examination the answer “yes, I know that you have recently come out of
jail where you were sent for being found in possession of big quantity of
date wine.” The appellant gave evidence and said his work was to sell
date wine, and the magistrate allowed cross-examination as to his bad
character and previous convictions. The Court said at pp. 172 – 173:-

From the very first question it was obvious that the appellant was
bring his bad character into issue. At this stage his bad character
was inadmissible in evidence and could have only become relevant
in the unlikely event that it was essential to the appellant’s defence
65
 that he should bring out his bad character. Immediately the
magistrate should have stopped the acccused and enquired of him
what was his proposed defence and warned him of the danger he
ran in persisting in this line of questioning. The cross-examination
of the appellant by the police prosecutor was only defensible if it
complied with s.151(f) of the Criminal Procedure Code. This
section supplies an accused with a shield. It provided
(summary). An accused is only permitted to throw away this shield
in the case of the three exceptions specified in the sub-section. His
remark in examination –in-chief ‘My work is to sell date wine’ was
not sufficient to bring any of the exceptions into play. He was in
fact giving evidence of his own bad character. He never gave
evidence of his own good character, or questioned any prosecution
witness with a view to establishing his own good character. The
nature or conduct of his defence was not such as to involve
imputations on the character of any prosecution witness. I consider
that this line of cross-examination was indefensible.”

If the attack on the credibility of a prosecution witness is not done

with the object of setting up the good character of the accused, it is not
brought under subs. (1)(b), and it is not proper for the magistrate on
those grounds to allow the prosecution to lead evidence of bad character;
see R.V. George Mukasa and Ali Mukibi, (1947), 6 U.L.R. 165.

It is important, of course, to distinguish cases where bad character

is an element of the offence charged, e.g. a charge under s.183 P.C.,
Rogues and vagabonds. See, for example, In re Mohamed bin Mbwana,
66
(1938),5 Z.L.R. 125; also in those instances where accused are being dealt
with as habitual criminals under the appropriate sections of the C.P.C.:
see R. v. Yokana Mawaro and another, 91924), 3 U.L.R. 158.

What constitutes bad character is, of course, a matter of fact to be

determined in the particular case. For example, a cross-examination of
an accused concerning possession of contraceptives when he was
separated from his wife raised no inference of adultery or bad character
on the part of the accused in Pells v. R., [1958] E.A. 121 (K), whereas in
Antonia Bagandasanwa v. R, (1956), 7 U.L.R. 190, 191, evidence that an
accused had previously been required to give security for keeping the
peace by reason of his having threatened to shoot another person, even
though not amounting to a previous conviction, caused the Court to hold
that this could not be regarded as other than evidence of bad character.
The determination should be made by the magistrate when the evidence is
elicited in court.

If evidence of the accused’s character is wrongfully admitted, it is

generally held to have occasioned a miscarriage of justice, resulting in the
conviction being quashed . An example is found in Onyango v. Uganda
[1967] E.A. 386, 389 (U), where, after quoting s.52 U.E.A. the Court said:-
“There is nothing in the proceedings of the trial of the
appellant to have justified the admission of the learned trial
magistrate of the evidence of his previous conviction for
wandering in the proceedings of this case. The appellant did
not cross-examine the witnesses for the prosecution for the
purpose of establishing his own good character; nor was the
67
 conduct of the appellant’s defence such as to involve
imputations on the character of the complainant or the
witnesses for the prosecution; nor was the evidence
concerning the previous conviction of the appellant’s
concerned in any way with the charge against him for which
he was being tried. The trial magistrate having admitted and
relied upon legally inadmissible evidence against the
appellant it is impossible to hold that the admission of such
prejudicial evidence was not such as to have occasioned a
miscarriage of justice.”

See also R. v. Federi s/o Tamasi, (1920), 2 U.L.R. 377; inadmissible

evidence as grounds for quashing conviction, without discussion, and
other cases noted above.

AINLEY, C.J. in Omondi’s case at p.806 said of the proviso to s.57(1):-

“Whatever can be made of the ponderous proviso to s.57(1) of

the Evidence Act, and it is very difficult to know how a
magistrate can apply that proviso without knowing what the
previous convictions are, it is we think clear that the court has
a discretion to disallow questions about convictions and bad
character even if the accused has in strict law let them in by
the conduct of his defence or otherwise.

Even if the appellant’s answers in this case can be said

to fall within para.(c) of the subsection (and we do not think
68
 that they can be said to do so) it is to our minds abundantly
evident that it was an improper exercise of the discretion to
which we have referred to let in this appalling record, simply
because the appellant had called the policeman a liar.”

See also R. v. Nganga s/o Kanja and another (1938), 18 K.L.R. (1) 37
where the trial magistrate exercised his discretion to exclude evidence of
a previous conviction, even though such evidence was necessary as an
ingredient of the offence (resisting arrest and assaulting police officer in
the execution of their duty) to prove that the officers were, in fact, acting
in the exercise of their duties – arresting the accused who was wanted on
a charge of burglary. The Court held that it had no power to include the
evidence previously excluded by the magistrate, and the conviction was
quashed.

Although evidence of a previous convictions is admissible after

conviction under s.57(2) for the purpose of affecting the sentence to be
given, the Court of Appeal in R. v. Gulam Hussein, (1946), 13 E.A.C.A.
167, 168 has expressed the opinion that it is improper for a prosecutor to
make any statement to the court against a convict which, if challenged, he
would be unable to prove by legally admissible evidence if challenged.
(Here the statement concerned a confession which the accused did not
admit and which would have been inadmissible because of the prohibition
of s.25 I E.A).

Previous convictions are only one of the elements to be considered

in assessing sentence. The I.E.A. contained no provision similar to subs.
69
(2) in the equivalent section - 54. Previous convictions are now subject to
proof, but D.D. Fatakia v. R. is undoubtedly still applicable, wherein the
court said (1929), 4 Z.L.R. 136 at 137);-

“ confusion arose from the mistaken application of section

54 of the Evidence Act to an inquiry necessary for the due
and careful exercise of this discretion inferentially entrusted
to a magistrate by criminal provisions which prescribe the
imposition of a punishment within definite but extended
limits. When the extent of man’s liability to punishment has
been precisely ascertained, section 54 of the Evidence Act
ceases to have any application to the proceedings.”
The court then quoted from Ismail Alibhas v. Emperor, 26 I.C. 995:-

“The imposing of sentence is, within the wide limits allowed

by law, a matter of discretion, it is not a matter of proof
the law of evidence does not define, or profess to define, those
matters which a court should consider in using its discretion
in passing sentence.”
This remains true with the exception of the provisions of s.57(2).

If the accused, or the defendant in a civil case, calls witnesses to give

evidence as to his good character, or if the witness is one giving evidence
as to bad character, where admissible, he is in the same position as any
other normal witness:-

70
 148. A witness to character may be cross-examined and re-
examined.

Credibility of witnesses.

Use of previous written statements by a witness.

Sections 153 and 163(1)(c) must be read together:-

153. A witness may be cross-examined as to previous statements

made by him in writing or reduced into writing, and relevant to
matters in question, without such writing being shown to him or
being proved, but if it is intended to contradict a witness by a
previous written statement, his attention must, before the writing
can be proved, be called to those parts of it which are to be used for
the purpose of contradicting him.

163. (1) The credit of a witness may be impeached in the following

ways by the adverse party, or, with the consent of the court, by the
party who calls him –

by proof of former statement, whether written or oral, inconsistent

with any part of his evidence which is liable to be contradicted.

71
 Note that s.153 applies only to statements in writing. If, however,
the previous statement was verbal and not reduced to writing, it may also
be proved to impeach credit under s.163(1)(c); R.v. Vladimir Vasil Verbi,
(1942), 9 E.A.C.A. 42, 44.

The Court in E.A. Navigators v. Grundy [1959] E.A. 336, 343 (C.A.)
considered that the transcript of shorthand notes of evidence given by a
witness at an inquiry (in a civil matter) translated by the court interpreter
and recorded by a stenographer of proven competence and shortly
afterwards checked by the officer who presided at the inquiry, was a
“previous statement made by him reduced into writing” under the
identical I..E.A. section (s.145).
The distinction between cross-examination under s.153, and
impeaching of credit under 163 should be kept clearly in mind. As was
said by the court in Sandali s/o Aidi v. R., (1952), 1 T.L.R.( R ) 372:-

“It is also as well to bear in mind that the principle behind

this section [s.145 I.E.A.] is that it furnishes a test by which
the memory and integrity of a witness can be tried. It is not
used at this stage to impeach his credit.” (emphasis added)

Thus s.153 is used for purposes of contradiction, whereas s.163(1)(c) is

for the purpose of impeachment. To contradict the witness, however, his
attention must be called to those portions of the statement which are to be
used to contradict him before the writing can be proved. Improper
procedures have been noted, e.g. that used in Magoti s/o Matofali v.
R.,(1953),20 E.A.C.A 232, 233 where at the close of the defence case a
72
clerk from the Magistrate’s court was called to produce an original
deposition of one of the prosecution witnesses, which was then put in
evidence. In commenting on the procedure the Court said:-

“If the witness can read the deposition, he should be shown the part
which is alleged to contradict his evidence and be asked: Do you adhere
to that? Or did you say that? If he cannot read, the passage should be
read over to him and he should then be asked the question. Counsel
cross-examining is bound by the witness’s answer unless the deposition is
then put in to contradict him, and it is not permissible for counsel to state
that the deposition does contradict the witness unless it is so put in.”
(emphasis added). (*)

The proper procedure to be followed was set forth by the Court of Appeal
in Kartar Singh Bharaj and Another v. R. (1953), 20 E.A.C.A. 134, 137:-

“When the witness gives his evidence, the defence should call for the
earlier statement recorded by the police. The defence are entitled to see
this statement and to cross-examine the witness on any apparent
discrepancies. The person who recorded the earlier statement should
then be called to prove and put in as an exhibit the statement. But that
does not make, what is said in the statement. Substantive evidence at the
trial. Its only purpose and value is to show that on a previous occasion,
the witness has said something different from what he has said in
evidence at the trial, which fact may lead the Court to feel that his
evidence at the trial is unworthy of belief.”

73
 See also R. v. Chemulon Wero Olango,
(317) (1937), 4 E.A.C.A. 46 on putting
earlier statements to witness)

The Courts insist on proper proof of the earlier written statement

before it can be used either to contradict under s.153 or impeach under
s.163(1)(c) or their equivalents. In discussing s. 143 of the Uganda Act,
the Court of Appeal in Ojede s/o Okyek v. R., [1962] E.A. 494, 496 said:-

“This section merely lays down (in the second portion

thereof) a condition precedent to the proof of the previous
statement in writing; it does not dispense with proof, which is
in fact called for in s.153(3) of the same Ordinance and which
ought, in the present case, to have been effected by the Crown
calling the recording officer and the interpreter. It may be
that in some cases, if no language difficulty intervened, such a
statement could be proved by the admission of the particular
witness that he said what was written and signed the
statement, though it appears unlikely that it would then be
necessary to put the statement in at all. That was not the
present case. The witness was illiterate, the statement was
recorded in another language through an interpreter and the
witness was patently challenging the content and
interpretation. It was a case which called for strict proof of
the document, if it was desired to use it.”

74
Proof of the document or portions thereof which contradict the witness’ s
testimony bear directly on the question of credibility, but as noted in
Karter Singh Bharai’s case, supra, this does not make what is said in the
statement substantive evidence at the trial. As was said in Verbi v. R.,
supra at p.44 of the decision:-

“ But whenever recourse is and to this form of cross-

examination there is great danger that a jury may treat the
previous conversations between third persons at which the
accused was not present as evidence against the accused and
it is of the utmost important that they should be emphatically
warned that their only effect can be to affect the credibility of
the witness and that they must not be taken in any way as
evidence against the accused. No such warning was given in
this case in summing up.”

See also Jinabhai and Co. v. Eustace Sisal Estates. [1967] E.A. 153 (C.A.)
at p.156 where the Court, per NEWBOLD, P. held that counsel could
refer to records of previous proceedings to contradict under s.155 I.E.A.
or corroborate under s.157, but would not

“ be entitled to refer to the evidence of any such witness in

the prior proceedings as being evidence of the truth of the
statement made in those prior proceedings.”

See also Sandali’s case, supra where the court said, after referring to
s.153(3) I.E.A”:-
75
 It is under this section that person calling a witness may
attack that witness once the leave of the court has been
obtained and treat that witness as hostile. The effect of that
action is to discredit the witness and render him unworthy of
credit not to make his former statement evidence. This
principle is well set out in the judgment in the case of Mabati
bin Ruadiba v. R., (1938), 5 E.A.C.A. 52:

‘The rules governing the use of depositions at the preliminary

inquiry are well established and should be rigorously
observed. Section 155 of the Indian Evidence Act provides
that the credit of a witness may be impeached by the adverse
party or, with the consent of the Court, by the party who calls
him by proof of former statements inconsistent with any part
of his evidence which is liable to be contradicted. It is
essential that the witness should be given an opportunity of
explaining the alleged inconsistencies as it sometimes happens
that apparent inconsistencies are capable of a completely
satisfactory explanation. If serious and substantial
inconsistencies are proved the effect is to render the witness
unworthy of belief and not to make what he said in his former
statement available as evidence at the trial.”

It would therefore be advisable in these circumstances for a magistrate,

sitting alone, to warn himself on the case record that the earlier statement,
76
introduced in evidence under the provisions of s.153 or 163 is considered
only for impeachment purposes or to contradict the witness, as
appropriate, and is not being considered as evidence against the accused.

On the same point, see R. v. Ireri, (1941), 8 E.A.C.A. 61, R. v.

Noorali Alibhai Visram Gilani ,(1945), 12 E.A.C.A 87.*
Note as to affidavits, that it is improper to allege bad faith of
deponents without cross-examining them; Ibingira v. Uganda, [1966] E.A.
445, 452 (C.A).

Requirements for putting previous written statements in evidence

under the sections apply equally to civil and criminal cases, see E.A.
Navigator’s case, supra at p.344. There the officer who presided at the
inquiry was called upon to read out from the transcript of the evidence of
witnesses when he had little or no recollection of what the witnesses at the
inquiry had said, and the Court said that the writing – the contradictory
answers which the witnesses had made was in effect being used to
contradict them, and the relevant portion of the writing should have been
properly proved. The decision quoted from SARKAR (10th Edn., p.
1191):- (K.E.A. section numbers substituted)

“ Where the examination of witnesses has been reduced by an

investigating officer to writing, it is undesirable to permit the acccused’s
counsel to ask the officer if a certain witness made a particular statement
to him although the language of [s. 163(1)(c)] is wide enough to permit of
such questions. The officer cannot be expected to remember all that
many witnesses told him. If he is refreshing his memory by looking at the
77
diary, the procedure is outside the scope and intent of [s.153]. In the
circumstances the written record by the police officer is the only proper
and right thing to prove to discredit a witness.”(pp. 343 – 344).

Before the documents are admitted, it must be come plain that the
earlier statements are contradictory of the statements made by the
witness in court. In Orete v. Uganda, [1966] E.A.430 (C.A.) the witness
agreed that in earlier statements admitted in evidence she had not
mentioned the accused by name because of fear. The Court, commenting
upon the admission of the previous statements in evidence, said (pp.432 –
433):-
“Why then were the statements made evidence in the
case? Bys.143 of the Evidence Act [s.153 K.E.A.] a previous
statement made by a witness may be proved if it is intended to
be used to contradict the witness; but in this case the witness
had agreed that she had not named the first appellant in those
statements there was accordingly nothing to contradict, and
the statements were inadmissible and irrelevant and should
not have been put in evidence. In any event previous
statements are not, subject to the provisions of s.155 of the
Evidence Act [s.165 K.E.A] probative of the matter contained
therein. Thus one result of this procedure is to clutter the
record with inadmissible matter which has no evidential value.
It is a dangerous practice which at best leads to confusion and
possible prejudice, and at worst to trial on unsworn and
untested testimony. It must be discontinued.”

78
 In De Mello v. R. (1949), I T.L.R.( R ) 332, 334 the Court considered
whether admissions fell under s.155 I.E.A. and had to be put to a party-
witness in a case before they could be used against him:-
* Also Omar bin Mohamed v. R., (1922),
2 Z.L.R. 61
“In my opinion Section 115 does not apply to admissions as
such, No doubt, when it is intended to contradict a witness
who is a party by a former statement under Section 145 or to
impeach his credit by proof of a former inconsistent
statement under Section 155, the former statement, whether it
be an admission or not, must be put to the witness before it
can be proved against him. But here the statements wee not
put in to contradict the appellant’s evidence or to impeach his
credit as a witness but were admissible as admissions under
Section 21 and were put in as part of the prosecution case in
proof of the charge. In my view they clearly could be used
against him though they may not have been put to him in
cross-examination.”

If a witness is not cross-examined on his deposition when it contains

inconsistent statements, i.e. inconsistent with his testimony, or where the
inconsistencies are not brought to the attention of the Court or assessors,
or the depositions have by mistake not been put in evidence, the appeal
court will in certain instances reserve to itself the right to look at the
compare the two portions of the record, or the record and the depositions.
See R. v Ziyaya, (1936) 3 E.A.C.A. 31 and Byamungu s/o Busiliba v. R.,
(1951), 18 E.A.C.A.. 233 at p.236. It is, of course, basic law that a trial
79
court is not entitled to refer to passages in the depositions unless the
depositions have been put in evidence or a witness has admitted making
some statement which has been put to him from the depositions; see
Charles Daki s/o Daki v. R., [1959], E.A 931 (C.A)

Cross-examination as to credibility

154.When a witness is cross-examined he may, in addition to the

questions hereinbefore referred to, be asked any questions which
tend –
(a) to test his accuracy, veracity or credibility;
(b) to discover who he is and what is his position in life;

(c) to shake his credit, by injuring his character, although the

answer to such questions might tend directly or indirectly to
incriminate him or might expose or tend directly or indirectly
to expose him to a penalty or forfeiture.

This section goes beyond the strict limitations in s.146 on order and
direction of examinations, see infra, for it allows questioning of witnesses
to determine their trustworthiness. Under subsection (c), s.128 dealing
with the compellability of ordinary witnesses applies:-

If any question asked under section 154(c) of this Act

for the purpose of affecting the credit of the
witness relates to a matter relevant to the suit or
80
 proceeding, the provisions of section 128 of this
Act shall apply thereto.

See discuss, p. 101, Chapter III, supra.

There is, however, a direction with the court as to whether or not a

witness will be compelled to answer questions as to credit, set forth in s.
157 together with “guidelines” for the court’s consideration in reaching a
decision on the matter:-

157.(1) If any question asked relates to a matter not relevant to the suit, or
proceeding except in so far as it affects the credit of the witness by
injuring his character, the court shall decide whether or not the witness
shall be compelled to answer it, and may, if it does snot so compel him,
warn the witness that he is not obliged to answer.

(2) In exercising its discretion under this section, the court shall
have regard to the following considerations -

Such questions are proper if they are of such a nature that the
truth of the imputation conveyed by them would seriously
affect the opinion of the court as to the credibility of the
witness on the matter to which he testifies;
Such questions are improper if the imputation which they convey
relates to matters so remote in time, or of such a character,
that the truth of the imputation would not affect, or would

81
 affect in a slight degree, the opinion of the court as to the
credibility of the witness on the matter to which he testifies;
Such questions are improper if there is a great disproportion
between the important of the imputation made against the
witness’s character and the importance of the evidence.
(3) The court may, if it sees fit, draw from the witness’s refusal to
answer, the inference that the answer, if given, would be
unfavourable to the witness.

..
158. No such question as is referred to in section 157 of this Act
ought to be asked unless the person asking it has reasonable grounds for
thinking that the imputation which it conveys is well founded.

.
The following are illustrative of reasonable grounds under s.158:-
a. A barrister is instructed by a solicitor that an important witness
is a thief. This is a reasonable ground for asking the witness whether he is
a thief.
b. A barrister is informed by a person in court that an important
witness is a thief. The informant, on being questioned by the barrister,
gives satisfactory reasons for his statement. There is a reasonable ground
for asking the witness whether he is a thief.
c. A witness, of whom nothing whatever is known, is asked at
random whether he is a thief, There are no reasonable grounds for the
question.

82
 d. A witness, of whom nothing whatever is known, being
questioned as to his mode of life and means of living, gives unsatisfactory
answers. This may be a reasonable ground for asking him if he is a thief.

Section 162 deals with exclusion of evidence to contradict a

witness:-

162. When a witness has been asked and has answered any question
which is relevant to the proceedings only in so far as it tends to shake his
credit by injuring his character, no evidence shall be given to contradict
him but if he answers falsely he may afterwards be charged with giving
false evidence:
Provided that –
(i) if a witness is asked whether he has been previously convicted of
any crime and denies it, evidence may be given of his previous conviction;

(ii) if a witness is asked any questions tending to impeach his

impartiality and answers it by denying the facts suggested, evidence may
be given of the facts.

.
The principle of the section was set forth in R. v. Mohamed Ali El-
Bakri, (1947), 7 Z.L.R. 100, 101:-

“Section 153 of the Evidence Decree does no more than enact

the general rule of the English Law of evidence. With certain
exceptions that rule is that a party is not allowed to call
83
 witnesses to prove facts which merely tend to discredit his
opponent’s witnesses, and are not otherwise relevant to the
matters in issue. As said by Kelly, C.B. in R. v. Holmes,
(1871),12 Cox 137, the general rule is that ‘if a witness is
cross-examined as to a collateral fact, the answer must be
taken for better or worse, and the witness cannot be
contradicted. If the question was admissible, it might involve
an inquiry into her whole life.’ The only methods in which
the credit of an opponent’s witness can be impeached are
those set out in section 155 [s. 163 K.E.A.]

Section 153 I.E.A. contained the following illustrations:-

(a) A claim against an underwriter is resisted on the ground of

fraud. The claimant is asked whether, in a former transaction, he had not
made a fraudulent claim. He denies it. Evidence is offered to show that
he did make such a claim. The evidence is inadmissible.

(b) The witness is asked whether he was not dismissed from a

situation for dishonesty. He denies it, Evidence is offered to show that he
was dismissed for dishonesty. The evidence is not admissible.

(c) A affirms that on a certain day he saw B at (Nairobi). A is asked

whether he himself was not on that day at (Kisumu). He denies it.
Evidence is offered to show that A was on that day at (Kisumu). The
evidence is admissible, not as contradicting A on a fact which affects his

84
credit, but as contradicting the alleged fact that B was seen on the day in
question in (Nairobi).

In each of these cases the witness might, if his denial was false, be charged
with giving false evidence.

(d) A is asked whether his family has not had blood feud with the
family of B against whom he gives evidence. He denies it. He may be
contradicted on the ground that the question tends to impeach his
impartiality.

Note the distinction between facts which are directly relevant to the
facts in issue, i.e. the guilt or innocence of the accused (illu. (c) above)
where the admissibility of the evidence does not depend upon the cross-
examination of the witness to be contradicted, and those facts which are
collateral to the issue, i.e where the questions do not bear directly upon
the guilt or innocence of the accused (in a criminal case), but are asked
only for the purpose of contradicting the witness and discrediting his
evidence. The former are admissible; the latter are not. SARKAR at
p.1512 quotes in explanation of the section Piddington v. Benett & Wood,
63 Canadian L. R. 533:-

“The reason for the rule is obvious. The primary object

of a trial is to confine our attention to the points in issue.
Questions asked with the sole object of shaking the credit of a
witness bring in their train many matters irrelevant or
foreign to the enquiry, and if the parties are allowed to
85
 adduce evidence to contradict them, it is bound to draw away
from the points in issue and to protract the investigation to an
embarrassing and dangerous length. There will be no end of
proving collateral issues, and the real points in dispute will be
lost sight of. Hence it has been ruled that no evidence shall be
given to contradict answers to questions affecting the credit of
a witness.”

Section 163, in addition to the provision dealing with proof former

statements inconsistent with his testimony, see supra, set forth other
methods of impeaching credit:-

163. (1) The credit of a witness may be impeached in the following

ways by the adverse party, or with the consent of the court, by the party
who calls him –

(a) by the evidence of persons who testify that they, from their
knowledge of the witness, believe him to be unworthy of credit;

(b). by proof that the witness has been bribed, or has accepted the
offer of a bribe, or has received any other corrupt inducement to give his
evidence;

(c)
(i) When a man is prosecuted for rape or an attempt to commit
rape, it may be shown that the prosecutrix was of generally immoral
character.
86
 (2) A person who, called as a witness pursuant to subsection (1)(a)
of this section, declares another witness to be unworthy of credit may not,
upon his examination-in-chief, give reasons for his belief, but he may be
asked his reasons in cross-examination and the answers which he gives
cannot be contradicted, though, if they are false, he may afterwards be
charged with giving false evidence.

Illustrations:-

(a) A sues B for the price of goods sold and delivered to B. C says
that A delivered the goods to B. Evidence is offered to show that, on a
previous occasion, he said that he had not delivered the goods to B. The
evidence is admissible.

(b) A is indicated for the murder of B. C says that B, when dying,

declared that A had given B the wound of which he died. Evidence is
offered to show that, on a previous occasion, C said that the wound was
not given A or in his presence. The evidence is admissible.

From SARKAR, PP.1325 – 1326:- (as to subs. (1)(a)

“whether the enquiry into the general character of a witness
shall be restricted to his reputation for veracity, or may be
made in general terms, involving his entire moral character

87
 and estimation in society is a point not definitely settled. It
certainly appears reasonable that the question as to
reputation should be put in the most general form, the
opposite party being at liberty to inquire whether
notwithstanding the bad character of the witness in other
respects, he has not preserved his reputation for truth [Tay. S.
1471] It is not, however, enough that the impeaching
witness should profess merely to state what he has heard
‘others’ say; for those others may be but few. He must be
able to state what is generally said of the person, by those
among whom he dwells or with whom he is chiefly conversant;
for it is this only which constitutes his general reputation.
And, in ordinary cases, the witness should himself come from
the neighborhood of the individual whose character is in
question for if he be a stranger, sent thither by the adverse
party learn his character, he will not be allowed to testify as
to the result of his inquiries. The impeaching witness may
however, be asked to cross-examination the names of the
persons he had heard to speak against the character for
veracity of the witness impeached. [Tay s. 147A].” (see subs.
(2)).

As to subs. (1)(b), the reason for the impeachment is obvious, and

needs no elaboration.

As to subs. (1)(d), since the issue of consent in a case involving rape is

material, the moral character and reputation of the complainant is of great
88
value in adjudging her credibility. The subsection deals only with the
complainant’s general reputation, e.g. that she had the reputation of a
prostitute engaging in sexual relations with numerous men, which would raise
the general inference that she submitted willingly to the accused.

Confirming evidence by circumstantial questions

When a witness has truthfulness of whose evidence it

is intended to confirm gives evidence of any fact,
he may be questioned as to any other
circumstances which he observed at or near the
time or place at which the fact occurred, if the
court is of opinion that such circumstances, if
proved, would tend to confirm the testimony of
the witness as to the fact to which he testifies.

..

The facts admissible under this section are admissible, not for the
purpose of proving the facts in issue, but to test the truthfulness of the witness,
for if the witness can given accurate evidence of other circumstances observed
at or near the time or place when the facts in issue occurred, it supports the
accuracy of his testimony concerning the facts in issue. The section explains
the meaning of the expressions “state of things” and “relation of things” in s.3
of the Act.

Illustration:-
89
 A, an accomplice, gives an account of a robbery in which he took part.
He describes various incidents unconnected with the robbery which occurred
on his way to and from the place where it was committed. Independent
evidence as to the robbery itself.

Note that the I.E.A. uses the term “corroborate”, while the K.E.A. has
substituted the term “confirm”.

Proof of constituency by former statements

Section 153 and 163(1)(c), supra, dealt with contradicting and

impeaching a witness by the use of earlier statements which he has made;
s.165 covers the use of earlier statements to prove that the testimony which
the witness gives in court has not varied from the account of the facts which
has been given on an earlier occasion.

In order to show that the testimony of a witness is consistent any

former statement made by such witness, whether written or
oral, relating to the same fact at or about the time when the
fact took place, or before any authority legally competent to
investigate the fact, may be prove.

The term “consistent in s.165, replacing the words “to corroborate”

more accurately reflect the extent of the use to which the earlier statement
90
may be put, for when evidence of an earlier statement was used “to
corroborate” the witness under s.157 I.E.A., this was not the kind of
corroboration required where the witness needed corroboration by law, In R.
v. Njoroge s/o Njoki, (1939), 6 E.A.C.A. 130, reference had been made in the
trial court to the “corroboration” of one Wanjiru, a child, by one Ngahu who
gave evidence that the child had called out at the time of an attack by the
accused “Njoroge is attacking us”. The Court (pp. 130 – 131) said:

“While we appreciate that the word ‘corroborate’ is

used in section 157 of the Indian Evidence Act and
that some weight must be attached to such evidence
our view is that in a case where it would be improper
to convict on evidence without such evidence being
corroborated by other evidence in regard to material
particulars and involving the accused, the
‘corroboration’ referred to in section 157 would not
be adequate. There might however well be cases
where evidence adduced as corroborative evidence as
to material particulars and involving the accused
receives additional weight from evidence of a previous
statement made by the person to be corroborated and
such evidence might turn the scales against the
accused person.”

On the same point see R. v. Hassanali Jan Mohamed, (1939)18

K.L.R. (2) 150, 152 where it was said:
91
 “[s.157 I.E.A.] has, however, been the subject of
judicial decisions and a reference to Rex v. Silvester
Lobo, Criminal Appeal No. 23 of 1927, which is
discussed in Rex v. Cherop arap Kinoi and Another,
(1936)) 3 E.A.C.A. 124, will show that in cases where
corroboration is required evidence such as is referred
to in the section will not suffice. As was stated in
Lobo’s case, a complaint such as is said to have been
made in this case was admissible for the purpose of
showing the consistency of the story told by the
complainant ”

and R. v. Shah Hirji Popat, (1947), 22 K.LR. (2) 38, referring to

Njoroge’s case and R. v. Mwereke s/o Mkutihu, (1941), 8 E.A.C.A.
27 and holding that where corroboration of the evidence of a
witness is required before a conviction can be properly had, the
“corroboration” which should be looked for is as laid down in
Baskerville’s case (see discussion p.75, supra), the
“corroboration” referred to in s.157 I.E.A. being inadequate for
that purpose. See also R. v. Opet s/o Erui, (1936), 3 E.A.C.A 122
holding that a recent complaint by a child was merely indicative
of consistency of the complainant’s evidence and did not supply
corroboration.

As to corroboration in sexual offences involving immediate

complaints see infra.
92
 Where consistency is shown by evidence of former
statements, it has a direct bearing on the weight to be given to the
evidence of the witness, a fact often not appreciated by police
prosecutors, and frequently remarked upon by the courts. For,
example, in Kella v. R. [1967] E.A. 809, 812 (C.A) where the
Court quoted from Shabani Bin Donaldi v. R., (1940), 7 E..A.C.A.
60:-

“We desire to add that in cases like this, and indeed in

almost every case in which an immediate report has
been made to the police by someone who is
subsequently called as a witness evidence of the
details of such report (save such portions of it as may
be inadmissible as being hearsay or the like) should
always be given at the trial. Such evidence frequently
proves most valuable, sometimes as corroboration of
the evidence of the witness under s.157 of the
Evidence Act, and sometimes as showing that what he
now swears is an afterthought, or that he is now
purporting to identify a person whom he really did
not recognize at the time, or an article which is not
really his at all.”

The Court also noted the difference between corroboration under

s and consistency under s.165 as above. On the same point see
also Stonisplast v. R (1942) 1 T.L.R ( R ) 254, 264; R. v.
93
Mohamed bin Allui (1942), 9 E.A.C.A. 72, 73; v. R.,
(1955), 22 E.A.C.A. 458, 459, and Tekerali s/0 Korongozi and
Others v. R., (1952), 19 E.A.C.A. 259 at p.280 where the Court
emphasized the importance is the evidence by saying:-

“Their importance can scarcely be exaggerated for

they often provide a good test by which the truth or
accuracy of the statements can be judged, thus
providing a safeguard against later embellishments or
the deliberately made-up case. Truth will often out in
a first statement taken from a witness at a time when
recollection is very fresh and there has been no
opportunity for communication with others.”
One of the important aspects of the information contained
in the first complaint or statement is identity, and if the
identification description has been recorded in the Occurence
Book, Diary or oral form, the book or writing should be put in
evidence, if admissible, under s.38, or used for the purpose of
refreshing the witness’s memory under s.167; see Mohamed bin
Allui’s case supra. In the absence of evidence regarding any
description by persons who later purport to identify an accused in
court, the identification loses much of its value; see discussion, p.
130 et seq.

In contradiction with those documents used to show inconsistency which

are not substantive evidence at the trial, see supra, if a document is used
under. 165 to show consistency and the witness affirms that the contents are
94
true, the writing may be substantive evidence at the trial; Thairu s/o Muhoro
and Others v. R., (1954), 21 E.A.C.A. 187, 188; and the actual words used may,
of course, be admitted. Note the distinction between this situation and those
where earlier statements, not used under the section to show consistency, are
not admissible; see R. v. Ngereke s/o Mkutihu, (1941), 8 E.A.C.A. where
instead of offering the actual words spoken the witness said only “Acting on
information given me by the child.”

The section does not contemplate that an earlier statement which is

hearsay may be used to show consistency; see quotation from Shabani ‘s case,
above, and Lubogo v. Uganda [1967] E.A. 440 (C.A.) at p.442 where the trial
judge had said in his decision:

“I have referred earlier to Sang’s statement to the

police to the passage which seems to suggest that Sana
did not have a light but the Chief Namuyenje testified
that Kamanya told him that he recognized the
accused person by the light of the lamp which Sana
had.”

It was there held that the trial judge had gone beyond what was intended
under s.155 of the U.E.A. in allowing a hearsay statement to be used to
corroborate the prosecution case.

In the civil case of B.E.A. Timber Co. v. Inder Singh Gill, [1959] E.A.
463, 471 (C.A) it was argued that letters favourable to the party offering them
were not admissible in evidence because not against interest and not part of
95
the res gestae since the material time was June 24 and the letters had been
written in April and early May. The Court said, after quoting the section:-

“The section clearly admits evidence of previous

consistent statements which would not be admissible
under the English law of evidence In the instant
case I think the disputed letters are admissible under
s.157. In the circumstances of this case I do not think
that ‘the fact’ is limited to the question of the
respondent’s state of mind on June 24. Bearing in
mind that his original intention had been to sell, it is a
relevant fact that shortly before June 24 that
intention underwent a change. I think the disputed
letters are sufficiently proximate to the alleged change
of mind for them to be admissible.”
Apart from questions of admissibility of previous statements, there is
the problem of the weight to be attached to them once admitted. In this
regard the following passage from R. v. Leonard, (1943), 10 E.A.C.A. 113, 114
is of value:-

“The value of contemporaneous statements, rendered

admissible by Section 157, as corroboration of the
testimony of the witness must necessarily vary
considerably according to the circumstances of the
case and the connection of the witness with it; they
may amount to no more than evidence of consistency,
but they may afford corroboration even of the
96
 evidence of an accomplice [note that this statement
is no longer applicable owing to the change of
wording in the Kenya Act] In the case of
Muthukuraswami v. R., (1912, 35 M. 397) Benson, J.,
said, at p.427: ‘The former statement of an
accomplice is, therefore, legally admissible to
corroborate his testimony at the trial, and the weight
to be attached to it, or, in other words, how far it does
really corroborate the evidence given at the trial must
vary with the facts of each case In the great
majority of cases it would, no doubt, be found to be
merely a repetition of tainted evidence affording no
ground for believing it to be true, and, therefore,
adding nothing whatever to its value. On the other
hand, if there was evidence, or even a suggestion, put
forward by the defence that the evidence given by the
witness was the result of recent influence brought to
bear upon him, it would be most important to be able
to prove that the witness had made statements to the
same effect as his evidence at the trial long before the
influences relied on by the defence had been brought
to bear upon him.’ ”

By analogy, the weight to be given to a statement admitted under s.165 K.E.A.

merely to prove consistency, will vary with the circumstances of the case, and
97
will depend, in large part, on the role which the witness played in relation to
the facts in issue, and the earlier statement and resultant consistency must be
judged in the light of the total evidence including that of all evidence bearing
on the credibility of the witness.

It goes almost without saying, of course, the evidence is not admissible

under s.165 unless the witness who made the earlier statement is competent
and called at the trial; see Lobo v. R., (1926), 10 K.L.R. 55. It has, however,
been held in Michael C.F. de Sa v. Shapooji , (1899), 1 Z.L.R. 96 that a party
to proceedings is not a “witness” for the purposes of corroboration under
s.157. There the plaintiff, an apothecary, attended one F.T. After the latter’s
death the plaintiff brought an action for charges against the defendant,
alleging that his services had been rendered at the defendant’s request and on
an undertaking to pay the charges. Counsel sought to put the following
question to the witness: “Had plaintiff any conversation with you on the
subject of his attendance on the deceased?” The question was objected to as
inapplicable under s.21 of the Z.E.D., being an admission in favour of the
party. The Court said:-

“At first sight it [i.e. does “witness” in s.157 include a

party] would naturally appear to be so and such
would be the natural presumption, although I must
say it was difficult to believe that the Indian
Legislature would have made so serious a departure
from the English rules as such an inclusion would be.
But reading the definition of the word ‘admission’ in
Section 17, its application in Section 18, and its
98
 relevancy in Section 21, I think that a statement by a
‘party’ witness clearly cannot be proved under
Section 157; that such a statement as the one wanted
to be proved by Mr. Smith is an admission in the
interests of the plaintiff; and that as such it cannot be
proved and is inadmissible.”

Compare, however, the situation here with the one in the

B.E.A. Timber Co. case supra p.327

If the earlier statement falls under one of the exceptions the hearsay
rule, i.e statement of persons not called as witness but admissible under s.33
or 3A K.E.A; evidence of consistency to contradict is admissible under s.166:-

166. Whenever any statement admissible under section 33 or .. 34 of this

Act is proved, all matters which might have been proved if that person had
been called as a witness and had upon cross-examination the truth of the
matter suggested, must be proved either to contradict or to show consistency,
or in order to impeach or confirm the order of the person by whom it was
made.

Consistency and corroboration in cases charging sexual ..

The rules set forth above concerning evidence of prior statement – here
evidence of complaints concerning the commission of sexual offences –
attain great importance in this class of offence. See, e.g. Alikanjelo
99
Waigo v. R., (1962), 18 E.A.C.A. 201 for one example stressing the
extreme importance of clear evidence of the terms of the original
complaint.

If the complainant is a child, corroboration is required by s.124

K.E.A.; see p.96 a seq.; R.v. Akoyi s/o Shipure, (1953), 20 K.L.R.(1) 82
and authorities there cited. If the complainant is an adult,
corroboration seems not to be required as a matter of law in sexual
offences. Although cases such as R. v. Cherop A. Kinei and another,
(1936), 3 E.A.C.A.124 had held that conviction may be had after
warning on the dangers of convicting on uncorroborated evidence if the
jury or assessors were satisfied of the truth of the complainant’s
evidence, the position appeared to change. In Ongweya v. R., [1964]
E.A. 129, 130 (T), Sir Ralph WINDHAM, C.J., considering the same
course of action taken by a magistrate in the lower court referred to
Cherop’s case and then said:-

“But since then, the Court of Appeal, apparently ignoring the decision,
has resiled from the position which it there took up and has consistently
held that in sexual cases they will require corroboration
notwithstanding such warning. I need only refer to two of its many
decisions on this point, namely R. v. Kirimunyo (1943), 10 E.A.C.A 64)
and Njuguna Wangurimu v. R. (1953), 20 E.A.C.A. 196) and, if I may,
to my own comments on the latter decision in R. v. Omar bin Khamis
(1956), 8 Z.L.R. 374), as touching the question – ‘what is a rule of
law?’ ”.

100
And yet as recently as 1967, LAW, J.A. in Chila v. R., [1967] E.A. 722, 723
(C.A.), without referring to authority, said:-

“The law of East Africa on corroboration in sexual cases is as follows:

The judge should warn the assessors and

himself of the danger of acting on the uncorroborated
testimony of the complainant, but having done so he
may convict in the absence of corroboration if he is
satisfied that her evidence is truthful. If no such
warning is given, then the conviction will normally be
set aside unless the appellate court is satisfied that
there has been no failure of justice.”
There is no indication in the decision whether this statement of
the law, which repeats Cherop’s case in essence , is per incuriam
or not.

The corroboration required follows the normal rules. Complaints in

sexual cases, taken by themselves, merely show consistency and do not afford
corroboration; s.165 supra, and Ongweya’s case decided in Tanganyika
under the I.E.A., s.157. Although it has been held that the distressed
condition of the complainant when making a complaint may, under certain
circumstances, amount to corroboration of the complainant's evidence, there
is little weight attached to the evidence because it is all part and parcel of the
complaint; Kibaze v. Uganda, [1967] E.A. 507 (C.A) at p.510, referring to
English authorities.

101
 One type of corroboration found in sexual cases alone is the presence of
gonorrhea (and presumably other kinds of venereal diseases) infecting the
complainant after the alleged offence; for example see R. v. Kasomes Ogeda
(1940), 19 K.L.R. (1) 25 and Eria Ngobi v. R., (1953), 20 E.A.C.A. 154.

The rules extend to sexual offences other than rape: indecent assault
(Circular to Magistrates No.3/1945, 21 K.L.R. (2 109); Unnatural offences
(Telefera Alex v. R., [1963] E.A. 140 (K)).

Demeanour.

“Demeanor” is defined in the SHORTER OXFORD ENGLISH

DICTIONARY as

“Conduct” mode of proceeding, management, practice, behaviour.

Manner of comporting oneself towards others; bearing.”

SARKAR at pp.50 – 51, noting authority, makes the following observations

concerning demeanor:

“The demeanor and bearing of a witness should be

very closely observed. Unless the witness is a skilled
actor, his demeanor frequently furnishes a clue to the
weight of his testimony. It is because the trial judge
had the advantage of seeing the witnesses that it has
been repeatedly held that his decision on a question of
102
fact should not be lightly disturbed. ‘The most
careful note must often fail to convey the evidence
fully, in some of its most important elements, to those
for which the open oral examination of the witness in
presence of prisoner, judge and jury, is so justly
prozed. It cannot give the look or manner of the
witness his hesitation, his doubts, his variations of
language, his confidence or precipitancy, his calmness
or consideration; it cannot give the manner of the
prisoner, which that has been important, upon the
statement of anything of particular moment. It is, in
short, or it may be, the dead body of the evidence,
without its spirit, which is supplied when given openly
and orally, by the ear and eye of those who receive it.
[per SIR JOHN COLERILGE in R. v. Bortrand,
(1867), L.R. 1 P.C. 520, 533].

When the questions of credibility depends on

the demeanour in the box, the manner in which the
witness answered and by how he seems to be affected
by the question put and so on, the trial judge has an
advantage. But when the views upon credibility are
founded upon argumentative inferences from facts
not disputed, the court of appeal is really in as good a
situation as the trial judge.”

103
 An impression as to demeanour of a witness ought not to be adopted
without testing it against the whole of the evidence of the witness in question;
Byamungu s/o Rusiliba v. R., (1951), 18 E.A.C.A. 233, 236, referring to Yuill v.
Yuill, (C.A.)(1945) 1 ALL E.R. 183, 189.

See also R. G. Patel v. Lalji Makanui, [1957] E.A. 314 (C.A.) for a case
where the decision rested in large part on the demeanour of the witnesses.

7. Inconsistencies in evidence

Another factor to be weighed in determining questions of credibility of

witnesses are inconsistencies or discrepancies in the evidence of witnesses.
SARKAR, p.50:-

“Discrepancies in the testimony of various witnesses

on material or broad points have to be carefully
weighed in arriving at the truth. But trifling
discrepancies should be ignored, as they are often a
test of truth. Several persons giving their versions of
a transaction witnessed by them are naturally liable
to disagree on immaterial points. Their powers of
observation, expression or memory are not the same
and honest differences are easily possible. It must be
remembered that there are discrepancies of truth as
well as falsehood. It is the broad facts of a case and
not the little details that are to be considered in
weighing evidence. Discrepancies in the
statements of witnesses on material points should not
be lightly passed over, as they seriously affect the
104
 value of their testimony. Where the evidence is
conflicting and it is impossible to reconcile, the
conflicting statements on any theory of defective
memory or failing power of observation of the several
witnesses who contradict each other, the only safe
guide to follow is that afforded by the action and
conduct of the principal parties concerned and the
contents of the documents produced. ‘Where there
has been a conflict of evidence the court of appeal will
have special regard to the fact that the judge saw the
witnesses’ ”. (with authorities).

The magistrate should record in his judgment his reasons for

preferring unsupported testimony of one party over that of
another party. In M. M. Dattani v. Ahmed,[1959] E.A. 218 (J) at
p.221 the Court said:-

Counsel “ complains that the learned magistrate

did not record in his judgment why he preferred the
unsupported evidence of the respondent on this issue
to that of the appellant and his witness He relied on
Davalal Karaj Janna v. Manibhai M. Patel Ltd,
E.A.C.A Civil Appeal No. 16 of 1950 (unreported),
where the importance of a trial judge giving his
explanation of the reasons by he prefers the evidence
of one side in preference to that of the other where

105
 there is conflicting evidence was stressed. Here the
learned magistrate could have made a note of the
credibility or demeanor of the different witnesses or
he could have expressed his doubt as to where the
truth lay – a common occurrence in cases in this
country – but what he seems to have meant was ”.

For holdings that a failure on the part of a witness to an extra-

judicial confession to raise an alarm or volunteer information
until after a period of days does not necessarily detract from
credibility, and the judge may find adequate reasons for the delay,
see R. v. Mange s/o Mulebi, (1948), 15 E.A.C.A.69; R. V. Yafesi
Nabende and Others, (1948), 15 E.A.C.A. 71

106
 HEARSAY

Hearsay refers to testimony given in court by a person other than the one who
perceived it. As a general rule hearsay is inadmissible. For you start from the
premise that reporting in court what you heard another person say is not going to
be admitted in court as evidence. And this draws from section 63 of the Evidence
Act, which explicitly provides that oral evidence must be direct. So you are not
allowed to go to court to say this is what another person said. Oral evidence must
be direct. And when you are dealing with documents it is going to be required that
the author of the document presents that document in court. And the reason that we
are saying that the author of the document should come to court is so that if you
want to cross-examine them you have the opportunity to cross-examine them.

The rule against hearsay is stated as follows: ”A statement made by a person not
called as a witness which is offered in evidence to prove the truth of the fact
contained in the statement is hearsay and it is not admissible. If however the
statement is offered in evidence, not to prove the truth of the facts contained
in the statement but only to prove that the statement was in fact made it is not
hearsay and it is admissible”- Justice De Silva

So essentially then what determines whether hearsay is hearsay or not is going to

be pegged around the purpose for which the statement is given. If you are giving
the statement to prove the truth of the contents of the statement, you are giving the
statement made by another person seeking to get people to believe that which is
contained in the statement, that is hearsay. But on the other hand if you state what
another person said, not to prove the truth but to establish that those people
actually made the statement, that is not hearsay. Because essentially then what you
107
are doing is just reporting what another person said and you did perceive of what
that other person said because you heard them. Is this clear?

When you are using the statement to prove that the statement was made, here you
are attesting to something that you perceived of because you heard it had taken
place. But where you are giving a statement to prove the truth of what was
contained in the statement which somebody else had perceived of, that is hearsay.
So for instance if a person comes and says, James told me Peter stole the till from
the bank. If you are trying to prove the fact that Peter stole from the bank then you
can see there that you will not have direct perception of what happened. If in fact
you did hear James say that Peter stole, you perceived of that fact because you did
hear James say that Peter stole. Is that clear?

The case that you should read that concerns this rule of hearsay is the case of
Subramanium v Public Prosecutor (1956) WLR 965. And the facts of this case
were as follows: The appellant was charged and convicted of being in
possession of firearms without lawful excuse. In his defence, he asserted that
he was acting under duress in consequence or a result of threats uttered to
him by Malayan terrorists. When he attempted to state the contents of the
threats, he was overruled by the judge. He appealed against conviction
arguing that the judge should actually have listened to what the import of the
threat was. And of course the judge would have argued that if he was allowed
to say what the terrorists had told him that would be hearsay. The court of
appeal held that the conviction had to be quashed because what the terrorists
told the appellant should have been admitted as original or direct evidence. It
would have shed light on subsequent actions of the appellant.

108
So essentially here what the court is saying is that the appellant should have been
allowed to utter the threat because they would not have been threatening-may be he
was told if you don’t fire the firearm we will kill your mother. So the fact that the
statement was uttered is one thing, but the truth of what was in the statement is
another thing. Whether the terrorists had the capacity to kill his mother or whatever
else they threatened to do is not what we are seeking to hear. What we are seeking
to find out is whether a reasonable person would have behaved in the same way as
the appellant did in the circumstances. And you should note in this case the
statement I was reading to you on what is hearsay and what is not hearsay was
stated. In the judgment of Justice De Silva at page 959 to 970. That is where that
statement that we are talking about, what is and what is not hearsay is stated by this
particular judge:

”A statement made by a person not called as a witness which is offered in evidence

to prove the truth of the fact contained in the statement is hearsay and it is not
admissible. If however the statement is offered in evidence, not to prove the truth
of the facts contained in the statement but only to prove that the statement was in
fact made it is not hearsay and it is admissible”

The other case that we should look at getting to what is hearsay is the case of
Myers v DPP 1964 2 All ER 881. This is a case you must read. The appellant in
this case was charged and convicted of receiving a stolen motor vehicle. He was in
the business of buying wrecked motor vehicles for repair and resale. The chief
prosecution witness was the person in charge of the records department of the
relevant motor vehicle factory. He testified that every time that a car was
manufactured a workman would note down the engine number and the chassis
number of the car amongst other details and these would be marked on some card.
109
He also testified that the cylinder head number would be indelibly struck on the
cylinder head block so as to be inerasable. The card would then be microfilmed
and stored. At the trial the microfilms were produced on oath by the witness and
schedules were prepared from this microfilm. The schedules showed that the
cylinder block numbers of the car in question belonged to the car allegedly stolen.
The appellant was convicted on the basis of this evidence. The court of appeal
affirmed the conviction and the appellant appealed to the House of Lords. The
House of Lords held that the trial court and the court of appeal improperly
admitted hearsay evidence in the form of the microfilm and Lord Reid at page 884
stated: “The witness would only say that a record made by someone else showed
that if the record was correctly made a car had left the workshop bearing three
particular numbers. He could not prove that the record was correct or the numbers
which it contained were in fact the numbers on the car when it was made.”

Do you see the argument here? That essentially the basis of the microfilm was not
something that the witness could testify to because he did not put in the particular
entry. He did not actually author the document. Remember we said by dint of
section 63 of the Evidence Act, the person that authors the document should
produce that document. So here the vehicle had left the workshop with some
numbers. Those had now been reduced into microfilm and you have a third person
seeking to produce that as evidence. And essentially what the court is saying here
is that the only thing the witness can say is that some record had been made of a
car that left with some numbers. But he could not actually vouch for the veracity of
the truth of what was contained in those documents. And for that reason, that was
hearsay. This is why we are saying the House of Lords said the trial court and the
court of appeal had improperly admitted hearsay evidence. And because this
became a bit technical, Lord Reid ends his statement by saying:
110
”This is a highly technical point but the law regarding hearsay evidence is
technical and I would say absurdly technical”

The other case that it would be a good thing to look at just to illustrate how hearsay
presents itself, is the case of Patel v Comptroller of Customs [1965] 3 All ER 593.
The appellant here imported from Singapore into Fiji some coriander seeds shipped
in bags. He correctly engrossed (filled) the customs import entry form and on
investigation at arrival five bags of what he had imported were found to be
contained in within another outer bag. So essentially here you have double bagging.
The outer bag of these five bags was marked with the appellant’s trade name but it
had marked on it “Produce of Morocco”. In the important entry form the appellant
had filled that the coriander was a product of India. So in respect of the five bags
that had “Produce of Morocco”, the appellant was charged and convicted in
making a false declaration in a customs import form, on a customs import entry.
And we are saying that he had stated that the seed originated from India when in
fact it originated from Morocco.

On appeal, it was held that the evidence of the writing on the bag was inadmissible.
It was hearsay. And this was because the court could not ascertain that in essence
the coriander seed had actually come from morocco even though the bags were
marked “Produce of Morocco”. There were actually saying nobody knew who and
when those markings on the bags, Produce of Morocco, were made. And
essentially then nobody could speak to them testifying to the fact that the particular
coriander seed had originated from Morocco. So they could not be the basis of
conviction for making a false entry because the person who wrote them could not
be called to vouch for the truth.
111
The other case that would illustrate the same point is Junga v R (1952) AC 480
(PC). The accused was charged and convicted with the offence of being armed
with the intent to commit a felony. The police witness gave evidence at the trial,
saying that they had been told by a police informer of the alleged attempted
offence. The informer was not called to give evidence and his identify was not
revealed. The accused was convicted. On appeal it was held that the trial
magistrate had before him hearsay evidence of a very damaging kind. Without the
hearsay evidence the court below could not have found the necessary intent to
commit a felony and that being the case the Court of Appeal allowed the appeal
against conviction. Given that here was hearsay evidence, you didn’t call the
informer who would have actually given first hand knowledge of the fact that led
to the conviction of this person. And that being the case, the Court of Appeal says
that in all fairness the conviction should be quashed.

Another case is the case of Tenywa v Uganda (1967) EA 102(U). The accused was
accused of having stolen a bicycle. The bicycle was seized by police officers acting
on this information. On examination the bicycle was found to have a forged
number plate. The accused was convicted of the offence but appealed and on
appeal it was held that the police report from Kampala suggesting that the original
number on the bicycle was altered was hearsay. It should not have been admitted.
Because essentially there was nobody to say this was the number. When you say
there was a fake number on the bicycle you are basically saying that it is not the
number that was on it, so you should have a person to testify to what was actually
the original number. But just to say that it has been changed, even saying that what
has been found is what was. Because essentially the person that marked the
number on the bicycle was not called to give evidence.
112
The learned trial magistrate was wrong in law to have admitted in evidence the
report alleged to have been obtained from Kampala, which suggested that the
original number of the (stolen) bicycle had been altered. That piece of evidence
was hearsay and should not have been admitted… unless the expert who had
examined the bicycle had testified before the court and been cross-examined on the
point as to how he arrived at his conclusion.

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

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

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

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

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

113
evidence this statement was strictly inadmissible since Mr. Harwich could only
speak to have taken down what he was told by the second interpreter.”

Waugh v R (1950) AC 203 (PC).

And basically these cases also discuss instances where courts are faced with
hearsay evidence and how they treat them. And it would be useful to read those to
begin to understand what kind of information, the court is really going to take into
account in determining whether a particular piece of evidence is hearsay or not.
And essentially that is about the rule, that is you should not go to court to say what
you heard another person say to establish the truth of that which you are saying.

There are exceptions to the hearsay rule and actually the exceptions are many more
than the rule itself:

1. the first one would be admissions, formal and informal admissions. And
these are covered at sections 17-24

2. confessions are another exception to the hearsay rule covered at sections 25-
52

3. thirdly, statements made by persons who cannot be called as witnesses are

an exception to the hearsay rule. And these are laid out at section 33 of the
Evidence Act.

114
 4. evidence given in previous judicial proceedings is also an exception to the
hearsay rule. And that is covered at section 34 of the Evidence Act.

5. statements made under special circumstances are also an exception to the

hearsay rule. And a number of these are laid out in from section 37 through
to 41.

6. statements in documents produced in civil proceedings are also an exception

to the hearsay rule. Section 35 and 36

7. Res Gestae is also an exception to the hearsay rule.

8. affidavit statements especially where they are based on information are also
an exception to the hearsay rule.

9. statements taken from sick persons who are about to die are also an
exception to the hearsay rule. And these are hazards(?) under the Criminal
Procedure Code.

10.And also evidence by certificate covered at sections 77 and 78.

We will begin by looking at statements made by persons who cannot be called as

witnesses:

Statements by persons who cannot be called as witnesses

Section 33 lays out what those statements might be. It actually has 8 examples of
such statements and these are all, in their own right, exceptions to the hearsay rule.
115
And therefore I could not agree more with Lord Reid that the rule against hearsay
is technical and absurdly technical.

The opening paragraph at section 33 gives the context within which those
exceptions covered at that section apply:

“Statements, written or oral, of admissible facts made by a person who is dead, or

who cannot be found, or who has become incapable of giving evidence or whose
attendance cannot be procured, or whose attendance cannot be procured without an
amount of delay or expense which in the circumstances of the case appears to the
court unreasonable, are themselves admissible in the following cases-“

So it is not all the time that you have, for instance, under section 33 (a) a dying
declaration or whatever else, that it is going to be used in evidence. What is
detailed at section 33 introduction will have to apply.

So essentially the statement will be admissible if the person make them is dead,
cannot be found, has become incapable of giving evidence, their attendance cannot
be procured. Or even if it can be procured that would actually occasion expense
and delay which in the view of the court is unreasonable. If those circumstances
apply then (a), (b), through to eight would be admitted. Is it clear?

So each of these eight exceptions there is that rider: cannot be found, is dead, the
attendance cannot be procured without delay or cannot be procured at all. So if it is
alleged that a person is dead, do you think that this statement that a person is dead,
is enough? It is not. The fact of the death has to be ascertained. How do you prove
that a person is dead? By a death certificate, the presumption of death, by people
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who participated in their burial can be called to testify to the fact of death. But
essentially the fact of death is a fact that needs to be proved until you have proved
that the person is dead through the screening, then you couldn’t actually bring any
of these statements …. And if a person cannot be found the fact of not being found
must relate to the time that he is required to give evidence. So you cannot just say
that you have not been seeing the person…if no effort has been made to procure
them to come and give evidence. So the fact of not being found must relate to time
during which you are sought to give evidence.

And the authority for this supposition is the case R v Ndolo (1926) 10 KLR 11.

The court considered the meaning of “cannot be found” in connection with S. 33

India Evidence Act and Section 34 of Kenya Evidence Act where the language is
identical. Here the witness left his place of employment and was not served with a
summons for the date of the trial. The trial was adjourned and assistance from the
Registration Department was of no avail, as his movements could not be traced. It
was contended that his deposition should be read. The defence argued tht has the
prosecution taken reasonable steps to discover his whereabouts in preparation for
the first date of hearing he would have been available. The court held that the
words “cannot be found” refer to the time when the witness is sought to to attend
the trial, and do not refer to the state of affairs at some earlier period. There was
no question as to whether the search had been a diligent one, and the words appear
to imply that such a diligent search should be required before the condition is held
to have been fulfilled.

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And also the case of Thomhill v Thornhill (1965) EA 268 (CA), would be authority
for the proposition that the fact of not being found has to be proximate to the time
you require the person to give evidence.
What is an unreasonable delay, or unreasonable expense is a matter within the
discretion of the court, dependent upon the circumstances of a particular case.
In this case “the learned trial judge also stated in his judgment that the cost and
inconvenience of bringing a witness from the United Kingdom would not be great
in these days of rapid and inexpensive air travel. With great respect, I disagree that
air travel in these days is inexpensive, although I agree that it is rapid. But the
question seems to be this – is it justifiable legally to put the petitioner to the
expense of bringing a witness from the United Kingdom to testify about a fact
which is not denied and in respect of whose evidence the court has a discretion to
accept on affidavit, particularly as the petition is not defended and no application
was made to have the witness orally examined?”

Having satisfied those introductory matters, the first category of statements made
by persons who cannot be called as witnesses, are dying declarations. Section
33(a)states:

“when the statement is made by a person as to the cause of his death, or as to any
of the circumstances of the transaction which resulted in his death, in cases in
which the cause of that person’s death comes into question and such statements are
admissible whether the person who made them was or was not, at the time when
they were made, under expectation of death, and whatever may be the nature of the
proceeding in which the cause of his death comes into question;”

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So when the cause of death of a person is in issue and this could be in either civil
or criminal proceedings, the statement made by such a person which deals with the
circumstances of the cause of the death is going to be relevant. And the case to
look at here is the case of Terikabi v Uganda (1975) EA 60. The deceased in this
case gave or made a statement giving the cause of his death but no evidence of the
circumstances relating to the death. And of course the question was: would this be
admissible? Because essentially people are looking at it as being that he has to give
both cause and circumstances. So this case was testing whether if a statement gave
only cause, would it be admissible? If it gave only circumstances but no cause,
would it be admissible? And the court here held that the statement was admissible,
that it was not necessary that the statement refer to both the cause and
circumstances. Mention of either cause or circumstances was sufficient.

In certain jurisdictions it is required that for a dying declaration to be admissible

the person making it must have haven in imminent expectation of death. And the
assumption here is that if you are in imminent expectation of death, you are
unlikely to tell lies because you are expecting to be going to your maker and you
do not want to go tainted by untruth. But of course you know that it fallacious as
well because you may be revengeful against a particular person that you do not
mind if after you are dead they spend all their lives behind bars, accused of having
killed you. In Kenya, however that is not a requirement. So it is not required in this
country that for a dying declaration to be admissible one would have to be in
imminent expectation f death. And that is actually contained at section 33(a), if you
look at the sentence beginning, “such statements are admissible whether the person
who made them was or was not, at the time when they were made, under
expectation of death..”.

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And the case to look at here is a case that we will look at again when we look at
confessions. The case of Swami v King-Emperor (1939) 1 All ER 396 (PC). In this
case the court considered the admissibility of evidence by a widow that the
deceased had told her that he was going to a particular place on the invitation of
the appellant’s wife and that the appellant’s wife had asked the deceased to go and
receive payment of his dues at that place. So the court was considering whether
evidence of a statement by a widow that the deceased had told her he was going to
a particular place on the invitation of the appellant’s wife to pick up payment of his
dues. And this statement was held to be admissible even though it was made before
the cause of death had arisen. So the deceased here was not in imminent
expectation of death. But they had made a statement that shed light into the
circumstances that led to the death that he was going to pick up his due.

Again on the same point you should look at the case of Kaluma v R (1968)EAR
349. In this case, three appellants were convicted of the murder of two women in
Kenya. The three appellants happened to be wanted by the Uganda police and the
two women they were accused of having murdered were part of a search party
which had been sent to Kenya to find and arrest the appellants. Evidence was
admitted at the trial that one of the two women had made inquiries about the
appellants whereabouts and this had been reported to the appellants. This evidence
was admitted on the grounds that it was relevant as to the motive or reason for the
murder. The appellants were convicted and they appealed challenging the
admission of the evidence about the inquiries and the court held that evidence
about the inquiries was admissible under section 33 of the Kenya Evidence Act as
a statement made by a person who is dead as to the circumstances of the
transaction, which resulted in the death. So it was not in the category that would be
hearsay and inadmissible. It was an exception to the hearsay rule. So the person
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was dead and under section 33 (a) a statement made by a person who is dead on the
circumstances of their death would be admissible as an exception to the hearsay
rule.

So essentially then what would be the requirement under section 33 (a) for
admission of a statement as a dying declaration:

1. it has to relate to the cause and or circumstance of the death of the maker
and not to any other person. So it has to relate to your death as the maker of
the statement, not to the death of other people. And the authority for that
preposition is the case of Mohamed Warsama v R.(1956) 23 EACA 576. In
this case the deceased had made a series of dying declarations which were
precise and detailed and if true conclusive. He had in his declaration also
stated the cause of death of another person and the question was whether that
part of the dying declaration that identified another person was admissible.
And the court held, no, it was not admissible. The question was whether that
part of the dying declaration that pointed to the cause of death of another
person was admissible. Remember we said that the deceased made many
dying declarations of a precise and detailed and if true conclusive. But in
those dying declarations did not just talk about the cause of his own death.
He actually talked about the cause of death of another person. And the court
was enquiring as to whether that part of the statement that talked about the
cause of death of the other person was admissible. And the court held, no.
the dying declaration has to related to the cause and or circumstances of the
death of the maker, not of other people. So they would admit what was
pertaining to his death, not to the death of other people.

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2. The second rule is that the statement must be proximate to the death. So if
you had made a statement about your death in the year 2000 and then you
die this year, the whole question of the proximity of the statement to your
death is going to arise. And the authority here is Antonio v Barugahare v R
(1957) EA 149 (CA). The witness here had given evidence that the deceased
woman had told her six weeks earlier before she died that the accused had
asked her to marry him. So the deceased had confided to the witness, six
weeks prior to her death, that the accused had asked her to marry him. The
deceased had also asked the deceased according to the report to lend him
money to pay his tax. She had refused to yield to either demand. And she
was found dead six weeks later. And the question was whether what she had
confided to the witness was a dying declaration. Was the information that he
had passed to the witness, that she had been asked to marry the accused and
lend him money a dying declaration. The court held, not, it was not a dying
declaration because the facts alleged were not proximate or related to the
death and the circumstances were not those of the transaction resulting in the
death. You should compare that holding to the holding of the case R v
Kabateleine s/o Nchwaba (1946) 13 EACA 164. In this case, a complaint
made by a deceased person to her headman two days before the house in
which she was sleeping was burned, was held directly related to the occasion
of the deceased’s death and was a circumstance that resulted in her relevant.
Essentially here you are looking at two days and 50. So while six weeks are
seen as not proximate, not close enough, here the complaint had been done
two days earlier and that is the duration between the complaint and when the
death occurred, is what makes the ruling that it is part of the transaction that
resulted in death.

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3. The dying declaration must be complete. And we should here revisit the case
of Beddington. You should also look at the case of Waugh v R (1950) AC
203 (PC). R v Beddington (?), you looked at that when we were looking at
res gestae or was it similar facts? In Waugh’s case, the declaration was held
to be inadmissible because it was not complete on its face. The deceased in
this case fell in a terminal comma when he was making the statement
leaving it incomplete. So basically what the court is saying is that you don’t
know what the person might have said if they had had the opportunity to
complete the statement, and for that reason, being incomplete, then you
could not say it is a statement that should be admitted. The same point is
made in the case of R V. Charles Daki s/o Daki (1960) EAR 34. The
deceased was in this case admitted into hospital suffering from gun shot
wounds. When he was asked who shot him, he said, “Charles Daki has killed
me, he shot me with a gun. I saw him with a gun. He was on a motorcycle. A
friend of mine had visited me and I went to the garage with him.” At this
point the doctor intervened and the deceased died subsequently. Daki was
charged and convicted on the basis of the statement, despite his counsel’s
objection. On appeal the statement was held inadmissible on the grounds
that the deceased might or might not have added something… And
essentially because this statement was not complete, on appeal it was held
that this statement could not be used as basis of conviction because for a
dying declaration to be admissible it had to be a complete statement. For
example, if he had stopped at,”Charles Daki killed me. He shot me with a
gun.” And then he did not express willingness or desire to say other things.
Basically he had gone on to say—he was now going off on a tangent. What
was he going to say when he said a friend visited him, we went to the garage?
May be the friend started quarreling with Charles Daki…nobody knows
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what this person wanted to say… which means the statement was incomplete
because you don’t know what he might have said if he had not expired at
that point. Let us also look at the case of Pius Jasunga s/o Akumu v R (1954)
21 EACA 331. In this case, a witness who was an assistant police inspector
gave evidence that he saw the deceased lying on the road with a wound in
his chest. When asked who had injured him the deceased replied, ‘Pius
Jasunga had stabbed me’. Later at the hospital, the deceased made a
statement to the superintendent of police during the cause of which he got
weaker and weaker and he was unable to sign the statement. There was no
corroboration of this story and it had been made in the absence of the
accused by a man who was suffering from a terrible wound, from which he
died subsequently. And the court here held that even though as a rule of law
it is not required that a dying declaration should be corroborated, as a matter
of practice you should not convict on uncorroborated dying declaration, even
though as a matter of law there is no requirement that there be corroboration
or independent credible evidence fortifying a particular statement, and in this
case a dying declaration. There is no requirement of law. But here one of the
points they noted was that as a matter of practice the court should always
require corroboration. And they said that the weight of a dying declaration
that is made in circumstances suggesting that the person might have said
something more, must be less than the one that is fully made. A dying
declaration that is made in circumstances that suggest that the person may
have said other things but he was prevented from saying those other things
because he expired, the weight attached to that dying declaration must
essentially be less than one that appears to be complete. And over and above
that the principle that even though law will not require you to corroborate a
dying declaration, as a matter of practice the court should always require that
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 such be corroborated. And that is going to be the final requirement of a
dying declaration. A dying declaration requires corroboration as a matter of
practice. When you look at rules on corroboration, you will see that the law
on evidence requiring corroboration is generally divided into two. There are
those circumstances where the law actually requires that you get
corroboration. Like when you have evidence of children of tender years.
There are a number of cases where the law requires that—I think evidence of
the complainant in rape case is required by law to be corroborated. But over
and above that, courts in exercising caution—and again being guided by the
need to be fair to the accused person—have devised instances where even
though the law does not require corroboration they will ordinarily require
corroboration. And a good example is where you have a dying declaration.
That a dying declaration should not form the basis of conviction if it is not
corroborated and corroboration here is talking to bringing in credible,
independent, strong evidence to fortify that which is being state in the
evidence requiring corroboration. It is also required for confessions that are
repudiated or retracted, where a person has made a confession and they later
say that either they never made it or that they only made it because they
were tortured or they were coerced into making it. That kind of confession,
even should the court the court decide to admit it, it will ordinarily as a
matter of practice required that it be corroborated.

Statements made in the ordinary course of business

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The second category of statements under section 33 are statements made in the
ordinary course of business.
Section 33(b) states:

“when the statement was made by such person in the ordinary course of
business, and in particular when it consists of an entry or memorandum made
by him in books or records kept in the ordinary course of business or in the
discharge of professional duty; or of an acknowledgement written or signed by
him of the receipt of money, goods, securities or property of any kind; or of a
document used in commerce, written or signed by him, or of the date of a letter
or other document usually dated, written or signed by him.”

So for a statement to satisfy the requirements of 33(b) it has to be a statement

being in the ordinary course of business. And section 33 (b) gives examples of
those to include entries or memorandum in books or records, and these have to
be regularly kept. For instance, books of account, ledgers, journals. It could also
be acknowledgements that are written and signed for the receipt of money,
receipt books, or documents used in commerce. These would be admissible as
an exception to the hearsay rule. And the assumption here is that the person
making them has no motivation to falsify them. They are kept in the ordinary
course of business; they would actually be entered. But remember in the case of
Myers v the DPP what seems to have been record that were kept in the ordinary
cause of business were actually ruled to be hearsay because the person making
them did not actually come to testify to them. And this is again to talk to the
introductory part of section 33, that it has to be that the person is dead, cannot
be found, is incapable of giving evidence, cannot be procured or even they can
be procured it will be as a consequence of delay and expense which is
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 unreasonable. So in Myers v the DPP it was not established that a person had
died, or could not be found. So essentially for this book to be admissible it is
not for all time. The exception comes in because what is contained at the
introduction at section 33 is already applicable, that there is a problem in
getting this person here because they are dead, etc.

And the cases to look at there are

Commissioner of Customs v SK Panachand (1961) EA 303 (CA)

The company imported some blankets allegedly from West Germany, No

import licence was required for goods from West Germany, although a licence
was required for goods from other countries. The Customs seized the blankets
acting on information that they, in fact, had come from East Germany. The
company, seeking the return of the blankets, in order to support its case
produced two documents, an invoice, and a document signed by a Mr. Blok in
which it was stated that the invoice, on which appeared the words “Country of
Origin – West Germany”, was correct. The Company claimed that these
documents satisfied the burden placed upon the Customs Acts, i.e. to prove the
country of origin of the blankets.

The decision involved S. 33 of Evidence Act covering cases where the

attendance of a witness cannot be procured without unreasonable delay and
expense, subs. (b) dealing with statements or documents made in the ordinary
course of business. The main issue was whether the invoice and document
signed by Mr. Blok were admissible in evidence to prove country of origin.

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 The court held basically that the “any person” who will “give evidence of any
other fact” in this case, as set forth in S. 110 I.E.A was Mr. Blok, who by means
of his signed document would give evidence of the “other fact”, i.e. that the
blankets came from West Germany. Before Mr. Blok could “give evidence
through the media of the documents, S. 110 placed the burden upon the
Company of proving:
(a) that Mr. Blok’s attendance at the trial could not be procured without
unreasonable delay of expense,
(b) that Mr. Blok’s signed document was used in the course of business, and
(c) that the document was actually signed by Mr. Blok, the person whose
attendance it was unreasonable to procure.
Since the Company had failed to meet its burden of proving these conditions
precedent to the admission of the documents they were held not admissible in
evidence and the court ordered condemnation of the blankets.

You should also look at the case of R v Masalu (1967) EA 355 (T).

You should also look at Gichunge v R (1972) EA 546.

And all these cases would be illustrating what might be statements made in the
ordinary course of business. The cases of Masalu and Gichunge are particularly
interesting because they deal with post-mortem reports and would seem to
indicate that fact report can technically be admitted as a statement made in the
ordinary course of business if they constitute a statement of fact, rather than a
statement of one’s opinion, when you are talking about the cause of death, when
you are talking about either a statement of fact rather than an expression of
opinion, that would be admissible.
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You should also look at the case of R v Magandazi and four Others (1967) EA
84 (CA), which would also talk to documents made in the ordinary cause of
business.

The accused were employed in Uganda to carry loads to the Congo. On a

charge of theft of a portion of the loads by the accused, a letter from an agent of
the complainant’s firm resident in the Congo was placed in evidence, but the
writer was not called. The Court said:

“… a letter was produced … by the same witness purporting to come from

the agency of the complainant’s firm in the Congo and showing shortages in the
goods received. (Section 30(2) quoted). The provision of the Section should in
my opinion be only sparingly applied and rarely, if ever, be used where the
statement goes to the root of the whole matter before the Court, as in the present
case. Further the letter, although it may be said to have been written in the
ordinary course of business to report a loss, appears also to be in the nature of a
special letter written with a view to the present prosecution.” The letter was not
admitted.

Another case might the case of Idi bin Ramadhan v R (1914) 2 ULR 108.

The statement of a police constable was put in evidence during the course of the
trial after it had been proved that the constable in question had proceeded on
leave. Presumably the statement purported to be put in evidence under s. 32(2)
of the Evidence Decree. GRAY C.J. quoted from Magandazi’s case and from
Ningawa v. Bharmappa “I think in using the phrase ‘in the ordinary course of
business’ the legislature intended to admit statements similar to those, admitted
in England, as coming under the same description. The subject is clearly dealt
with in Chapter XII of Mr. Pitt Taylor’s Treatise on the Law of Evidence, and

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 the case(s) which he has collected show that this execution to the general rule
against hearsay tends only to statements made during the course, not of any
particular transaction of an exceptional kind such as the execution of a deed or
mortgage, but of business, or professional employment in which the declarant
was ordinarily or habitually engaged. The phrase was apparently used to
indicate the current routine of business which was usually followed by the
person whose declaration it is sought to introduce.”

Statements against the interests of the maker

The next category of statements admissible under section 33 are statements against
the interests of the maker.

Statements against the interests of the maker

Section 33 (c ) reads:

“When a statement against the pecuniary or proprietary interests of the person

making it, or when, if true, it would expose him or would have exposed him to a
criminal prosecution or to a suit for damages;”

So essentially a statement which is against the interests of the maker would be

admissible as an exception to the hearsay rule. But remember against the
introductory part of section 33 has to apply before you admit that it makes an

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exception to the hearsay rule. And over and above that you have to look at: Is it
really against the interests of the maker? And the interests of the maker might
be pecuniary or relating to money, proprietary where it affects property or the
ownership of the property of the maker, or it could also be one that exposes a
person to a claim for damages or to prosecution. And the rationale here is that
in the ordinary course of life a person is not going to make a statement against
their own interests and would only make such a statement if it is true.

Case to look at is the case of Marie Ayoub v Standard Bank of SA (1961) EA

743 (CA).And the statement here was made by the deceased. There was a
statement in a letter where the deceased was said to be owed for the running of
his estate. A statement in a letter in which it was said that the plaintiff were
indebted to the deceased for the running expenses of an estate. The question
arose as to whether the statement would be an exception to the hearsay rule
under section 33(c ) and it was held not admissible because the maker was not
dead. The person who had made the statement saying they were indebted to the
deceased for the running of the estate was not dead. So the prerequisite for the
operation of section 33 (c ) had not been satisfied.

The other case you could look at is the case of Dias v R (1927) 3 Uganda Law
Reports 214, where the accused was charged with the offense of falsifying
books of account and the prosecution relied on a letter written by a deceased
clerk to the head of the department which charged the accused with having
ordered him to make the false entries. So the question was, could such a
statement be admitted under section 33 (c ) as one against the interests of the
maker. Who was maker of the statement here? The deceased clerk. And who

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was the accused? He was not the deceased. So the court here held this
statement was not proper one for section 33 (c ) equivalent to Uganda, that it
could not be admitted as an exception to the hearsay rule because it was in the
very interest of the deceased clerk to make that statement so that he could pin
responsibility on the other person rather than on himself. So it was not actually
a statement against the interests of the maker because the maker was charging
another person with falsifying the books and therefore it was not the right
statement for the application of this exception.

The next exception at section 33 is statements expressing opinion as to a public

right or custom. And remember again it is when the maker of the statement
would be dead, cannot be found and all those things that are contained in the
introductory. So statements made by persons who cannot be called as witnesses
are admissible if they give an opinion on the existence of custom and for such
to be admissible the people ought to be a person that might be aware of such
right or custom and the statement should been made before any controversy as
to the right of custom arose. So you could not make a statement to suit your
claim in a forthcoming suit. The statement ought to have been an unguarded
statement of opinion on a public right or custom and it ought to have been made
before there was any controversy as to that public right or custom. So you
made the statement just before the institution of the suit, then that is not going
to be admitted because you would have tailored it for that specific—and when
we talk about a public right it is one which is held in common by all members
of the public. For instance, when people are talking about a right of way in the
form of a highway, people who would have know that right of way was there, a
public right of way was there and it has to be one that affects a considerable
portion of the community. For instance also when you talk about the boundary
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 of a village. And remember that for it to be admissible as an exception to the
hearsay over and above it having been made before there was a controversy, the
person ought to be a person who can be considered as having competent
knowledge, person likely to know.

Statements that relate to any relationship

The next exception is at subsection (e), which reads:

“When the statement relates to the existence of any relationship by blood,

marriage, or adoption between persons as to whose relationship by blood,
marriage or adoption the person making the statement had special means of
knowledge, and when the statement was made before the question in dispute
was raised;”

So essentially state of persons who cannot be called as witnesses will be

admissible when they relate to the existence of any relationship. And the
relationship could be a relationship by blood, by marriage or by adoption. And
the person making the statement ought to have been a person who would have
had special means of knowledge of the existence of that relationship. So it is not
just any person. It is a person who had special means of knowledge. And
remember again it is only in instances where that person cannot be called as a
witness because of the variety of factors, that they are dead, cannot be found,
etc. And the statement must also have been made before there was a dispute as
to the existence of the relationship or not. So there ought to have been an
unguarded action.

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And the case to look at here is the case of Seif Ali Bajkni and others v Hamed
Bin Ali (1945) 7 Zanzibar LR 13. This involved a situation where a child was
born 10 months after the marriage between the parents was dissolved. During
the hearing it was sought to introduce a document concerning the relationship,
written by the alleged father. The document was written in contemplation of the
suit because the father disputed the parenthood and they made the document in
the event that the child should ever file suit. If the child files suit against the
father then the father would turn around and say there is a problem here, I do
not accept that you are my son. So the document was written in contemplation
of the suit because the father disputed his fatherhood of the child and the
document contemplated a situation where the child might file any suit against
the father. And the court held that the document conclusively proved the
existence of the controversy and it should be rejected. Because remember we
said that the document ought to have be an unguarded assertion. It should not be
one done in contemplation of a suit. The document itself conclusively proved
the existence of the controversy at the time it is alleged to have been written
because the father only wrote the document because they disputed their
parenthood of the child. And they were writing it to guard themselves in the
event that this child should ever fight it against the father. And so it should be
rejected because the document ought to have been made when there was no
dispute as to the existence of the relationship but you see here the father was
dead but he had written the document. But he had only written the document for
the purposes of establishing certain matters.

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Statement relating to family affairs

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

Statements made by persons who cannot be called

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

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 witness. And this provision includes private as well as public rights. So it is not
just for public rights. It is also for private rights.

Statements made by several persons expressing feelings or impressions

And finally under section 33, statements made by several persons expressing
feelings or impressions on their part, which are relevant to the issue in question.
So if a number of people who cannot be called as witnesses had made
statements expressing their feeling or impressions which feelings or
impressions are relevant to the matter in question, that is going to be admissible.
For instance, if you have a number of people saying they were apprehensive,
they had made statements to the effect that they were apprehensive that
something was happening or that they got the impression that things were not
being done in the way they should have been done. And again here of essence
to admissibility is that they made them as unguarded statements. They are not
tailor made for a specific procedure.

I urge you to read Durand for the explanation of this statement because as you
see this is just one section, which has eight sub-sections. And we are just
scratching the surface of hearsay.

So we still have to deal with the next category of statements that would comprise
exceptions to the hearsay rule. And again to reiterate what Lord Reid said that the
rule against hearsay is very technical and actually take a bit of reading through to
begin to appreciate why would it be admissible. And remember when you are
reading the exceptions in section 33 you have to read that bearing in mind the

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introductory bit: on when is admissible, it is not for all time. It is when those
passes operate. So if you are bringing a statement when the maker is not dead, it is
not going to be admissible. If you are bringing it when it is not against the interests
of the maker or it is against the interests of the maker but the person could still be
found to come and testify to the issues directly, then it is not going to be admissible.
And look at the exceptions to the hearsay rule as a way in which the legislature is
trying to bring information that would otherwise be unavailable. So you are
thinking, you know you cannot get the best because the person that has the best
evidence is dead, cannot be found, and all those things. And so you allow for the
second best. And given that it is your second best, that is why for instance for
dying declarations you have the requirement that it be corroborated. So the fact
that it is hearsay and it is being accepted as an exception to the general rule, is
going to have a bearing on the weight that is attached to that kind of evidence. Is
that clear? So I think we will stop t
Evidence given by a witness in judicial proceedings is admissible as an exception
to the Hearsay Rule and S. 34 to prove the fact stated. You allow hearsay evidence
because it is the best under the circumstances and it saves the court time.

Under Section 34(a) the reason you allow this evidence is because the best
evidence is not available, the witness has to be dead, cannot be found, is incapable
of giving evidence, is kept away by the adverse party, his presence cannot be
obtained without delay and expense which is unreasonable. Section 34 (1) (a)
gives further requirements as follows.
1. The subsequent proceeding has to be between the same parties or
between their representatives in interest. This is because they would
have had the opportunity and right to cross-examine the witness.

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

Nassir Haji Page 18 7th Case course outline

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

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

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Queens Drycleaners V. East African Community

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

admissible as an exception to the hearsay rule. S. 35 is to the effect that a written
statement is admissible to prove the facts contained in it if it is made by a
disinterested person with personal knowledge of those facts or if it is made by one
who in the discharge of his duty records information supplied to him by a person
with personal knowledge. The recipient of the information who would be
recording it should be recording it in a continuous record. In some circumstances
where a person has a personal knowledge and being disinterested puts down
matters, if the original document is produced in such circumstances, the maker
need not be called, if the maker is dead, incapable of giving evidence etc.

The court allows this evidence to expedite reception of evidence, you are
dispensing with calling maker of document because they are not available and the
evidence is valuable in determining the case.

The court can also admit the written evidence or a certified copy of that document,
there are certain documents you could prove through certified copies i.e. public
documents . there is also allowance for secondary evidence under S. 68 this is
done in the interest of expeditious and inexpensive disposal of a case. Under this
case, who is an interested person and the Act has not defined who an interested
person is

Lord Devlin in the case of Bearman’s V. Metropolitan Police Receiver 1961 1

WLR 44

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Lord Devlin stated in page 52 “no witness ought to be held to be a person
interested on a ground that would not be taken into consideration as affecting the
weight of his evidence if it were actually in court” Lord Devlin is saying that the
question as to who an interested person is is a question of fact.

Section 36 addresses itself to the issue of the way to be attached to a statement

rendered admissible by Section 35. Section 35 deals with documentary evidence.
It states that weight is pegged to the circumstances relating to accuracy. What
odds are there that this statement is accurate. You will also be looking at the point
the statement was made whether it was contemporaneous with the occurrence of
the event. You will also be looking at the question as to whether the maker had
any incentive to conceal or misrepresent the fact. This is a fact of determination
since what appears to be the case on the face might not be the real case as the
person recording the event could have had personal reasons for any number of
reasons. If a journalist recorded the event, it could be the journalist was not
recording the events as a disinterested party but it might turn out that he had a
relative who was involved in the accident to determine whether there is incentive
to misrepresent the facts.

STATEMENTS MADE UNDER SPECIAL CIRCUMSTANCES

They are covered under Sections 37 – 41 part 6 of the E A.

The first category of such statements are entries in books of accounts. These are
admissible if they are relevant but a book has to exist with a number of entries not
just a single entry and if the books related to the sale and delivery goods, there has

140
to be corroboration by a person who loaded the goods, or one who saw them
unloaded or loaded. S. 37 entries in books of account regularly kept are admissible.

Odendo V. R (1974) E.A. 6

This case is an authority for the proposition that where books of accounts are
concerned the need for corroboration is important under Section 37 and also where
there is delivery of goods corroboration is essential.

Section 38 has an example of an entry in a public record. An entry in any public or

other official book register or record stating a fact in issue or a relevant fact and
made by a public servant in the discharge of his official duty or by any other
person in performance of a duty specially enjoined by the law of the country in
which the book register or record is kept is admissible. For example if a priest
performs a wedding, they are expected to keep a register even though they are not
public officers.

What constitutes a public record?

In the case of Ladha & Others V. Patel & Others (1960)

A public record must be intended for the use of the public or be available for
public inspection. It should be a record of fact not opinion.

Chandaria V. R page 18 of the Course outline 9th Case

The whole question of what constitutes a public official and the court of appeal
judges ruled that
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Section 38 does not apply to documents made by members of the public when
detailing information necessary for their individual use whether or not those
documents are kept in a public department such as the immigration department.
This case dealt with forms that a traveller had filled at the airport and a person
sought to introduce this evidence in court under the provision of any other person.
The judges were of the view that the provision referred to people other than public
officials who find themselves under a specific duty to maintained or keep entries in
any record of a public or official nature.

Under Section 39 – A statement made under special circumstances

Statements and representations of facts made in published maps or charts generally
offered for public sale, or in maps or plans made under the authority of any
government in the commonwealth, as to matters usually stated or represented in
such maps, charts or plans, are admissible.
The reason for this is to expedite matters and you have the de minimis to expedite
matters.

Section 40 – statement made under special circumstances

Statement of fact contained in laws and official gazettes. 40(a)
(a) in any written law of Kenya, …
(b) in any written law of Kenya …

Section 41 deals with statements as to law contained in books.

The court has to form an opinion on the law of a country. Essentially the fact that
it is authored under the authority of government is what is going to determine
whether it is admissible.
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STATEMENTS OF PERSONS WHO ARE SERIOUSLY ILL
They are admissible as an exception to the hearsay rule. It is provided for under
criminal procedure rule. It is necessary to serve the adverse party that you intend
to take a statement from a particular person who is seriously ill, this way you
accord them an opportunity to come and cross-examine the witness. If the person
later dies or cannot be procured, then the statement will be admitted as an
exception to the hearsay rule.

EVIDENCE BY CERTIFICATE

Under Section 78 of the Evidence Act, photographic evidence is admissible in

criminal cases upon the production of a certificate by an authorised officer
authenticating the photograph. Authenticating is through granting a certificate to
the effect that this is what was actually taken for example a birth certificate is
issued instead of calling witnesses to testify to ones birth.

AFFIDAVITS

These are written statements on behalf of people (deponents) it has to be sworn or

affirmed and could contain statements of fact which the deponent is able to prove
from his own personal knowledge. You cannot swear an affidavit on matters that
are not within your personal knowledge.

Life Insurance Co. of India V. Panesar

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 HEARSAY

STATEMENTS BY PERSONS WHO CANNOT BE CALLED AS

WITNESSES

62. All facts, except the contents of documents, may be proved by

oral evidence.
63.(1) Oral evidence must in all cases be direct evidence.
(2) For the purposes of subsection (1) of this section, "direct
evidence" means:-
(a) with reference to a fact which could be seen, the evidence of a
witness who says he saw it;
(b) with reference to a fact which could be seen, the evidence of
witness who says he heard it;
(c) With reference to a fact which could be perceived by any
other sens 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:
Provided ... (treatises, see pp. 146 - 148, supra).
(3) If oral evidence refers to the existence or condition of any
material thing, other than a document, the court may, if it thinks fit,
require the production of such material thing for
its inspection.

144
 ........
The term "hearsay" does not appear in the K.E.A., although the courts
refer to hearsay evidence. The basic rule concerning hearsay evidence is,
however, embodied in s.63 which provides that oral evidence must be direct
evidence. The general rule against hearsay may be stated as follows:-

A statement made by a person not called as a witness, which is offered in

evidence to prove the truth of the facts contained in the statement is
hearsay and is not admissible. If, however, the statement is offered in
evidence, not to prove the truth of the facts contained in the statement,
but only to prove that the statement was, in fact, made, is not hearsay and
is admissible.

Certain exceptions to the general rule are set forth in s. 33.

In the simplest terms, hearsay means that a witness says" in court what
he "heard" from someone else, that other person not having been called as a
witness for the purpose of proving the fact repeated by the witness for the
purpose of proving that what he had heard was true.

Examples:-
Witness says: "John told me he saw the Defendant in Nairobi on August
20th". The statement is offered to prove the truth of the fact contained in the
statement, i.e. that the Defendant was in Nairobi on that date, and is not
admissible.

145
 Witness says: "John told me that the Plaintiff cheated on his
examination". In a defamation case the statement is offered not to prove the
truth of the fact contained in the statement, i.e. that the plaintiff is a dishonest
man, but only for the purpose of proving that the statement was made. The
statement, therefore, is not hearsay, and is admissible.

Examples of how hearsay questions may arise:-

Njunga v. R., [1965] E.A.773 (K); for full facts see p. 114 Information of
unrevealed informer offered in case involving charge of being armed with intent
to commit felony. From p. 774:-

"... the knowledge which the court below had of this felonious enterprise
was derived from what a Sergeant of Police told the court an uncalled,
unnamed and unsworn individual had told him. Without this hearsay
evidence the court below very clearly would have found it difficult, if not
impossible, to have determined whether the appellant had the intent to
commit a felony and if so what felony."

Magoti s/o Matofali v. R., (1953), 20 E/A.C.A. 232, 233:-

"A plan of the locus ... was made a produced in evidence by a police
corporal. Various points on the plan are marked with letters and it bears
a legend showing what these points represent. ... as to what each point
represented he merely said `I got the information from Antonia, (P.W.2),
as to positions and ownership.' This, of course, was merely hearsay and
his evidence should have been supported by the evidence of the witness
146
 Antonia to the effect that she had, subsequent to the event, pointed out to
the corporal the paces where the various incidents, to which she had
testified, had taken place."

Note how the words in the definition "a person not called as a witness" refers,
not to the person not being a witness in the case, but not being a witness as to the
information as to which the person is relating.

Tenywa v. Uganda, [1967] E.A. 102, 105 (U):-

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

The question has arisen a number of times when dealing with statements made
by an accused through interpreters, without the interpreters having been called
as witnesses as to what was said. For example;

R. v. Gutosi s/o Wamagale, (1947), 14 E.A.C.A. 117:-

"We note that the statement made by the appellant (Exh. p.1) to Mr.
Harwich, Superintendent of Police, was admitted although the two
interpreters who had carried out a double interpretation were not called
as witnesses. without their evidence this statement was strictly
147
 inadmissible since Mr. Harwich could only speak to have taken down
what he was told by the second interpreter."

on the point of interpreters, see also R. v. Mabara bin Petro, (1936), 3 E.A.C.A.
110; Kashandago s/o Kadochi v. R., (1953), 20 E.A.C.A. 174; Antoine Ernesta v.
R., [1962] E.A. 505, 508 (C.A.), Chapter on Confessions, infra.

Wawa s/o Kilongo v. R., (1950), 17 E.A.C.A. 152:-

Accused handed money to Mw to take it to Mzee to refrain from

reporting a matter. Mzee refused to accept it and accused gave Mw more
money telling him to go back to Mzee and offer it to him. Mzee gave evidence
both as to what happened and what Mw had told him. The Court said on p.
153:-

"... we think that when Mzee deposed to Mw's coming to him with the Sh.
500 and later with Sh. 1,000, it was not hearsay evidence: but we think
that it was hearsay when he deposed to what Mw told him the accused
had told Mw to say to him (Mzee)."

Hearsay evidence is notoriously unreliable, for not only is the original maker of
the story not present in court, not under oath and not subject to cross-
examination on the subject to test its accuracy, but memory is not always
reliable when a witness is called upon to repeat what he heard on another
occasion, especially when he is called upon to repeat the statement exactly as it
was made. If the witness was, in fact, a witness in the case, though not to the

148
facts repeated, as in Magoti's case (p. 150), the points concerning lack of an oath
on the points repeated and lack of cross-examination still apply.

(a) exceptions to the hearsay rule; conditions precedent for

admission.

The introductory statement in s. 33, which sets forth those instances when
statements which are classified as hearsay are admissible in evidence despite the
general requirement of s. 63 concerning direct evidence, and the general rule as
set forth above, reads as follows:- (as amended by Act No. 8 of 1968)

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 -

Note that hearsay evidence may either be oral or written.

For evidence to be admissible under s. 33, one of four conditions precedent must
be fulfilled:-
1. that the maker of the statement is dead; or
2. that the maker of the statement cannot be found; or
3. that the maker of the statement has become incapable of giving
evidence; or

149
 4. that the attendance of the maker of the statement cannot be procured
without an amount of delay or expense which in the circumstances of
the case appears to the court to be unreasonable.
5. That the attendance of the maker cannot be procured.
The burden of proving the necessary condition precedent lies upon the person
who wishes to have the evidence admitted; s.110 K.E.A.; i.e. the burden of
proving any fact necessary to be proved (the condition precedent) in order to
enable any person (the witness) to give evidence of any other fact (the statement
made by the person not called as a witness to that fact) is on the person who
wishes to give such evidence (the party who wishes the evidence to be admitted).

Similar language is found in other sections of the Act: s.21, proof of

admissions against persons making them, etc. which makes reference to s.33;
s.34, admissibility of evidence given in previous proceedings; s.35, admissibility
of documentary evidence as to facts in issue; and s.63 (proviso), dealing with
treatises; see pp.146 - 148, supra. Consequently the folowing discussion
concerning this language will be applicable to all these instances where the
language is the same.

Note also that when the introductory statement is read in conjunction

with the various subsections to s.33, that in addition to the conditions precedent
noted here, other conditions precedent in each subsectin must also be met.

2. "incapable of giving evidence".

These words contemplate not only physical disability, but situations
where the competency of the witness is involved, such as insanity, increasing

150
senilty, etc. Note that dumb witnesses are not incapable (s. 126) except as noted
on p. 94.

3. "an amount of delay or expense which in the circumstances

of the case appears to the court unreasonable".

What is an unreasonable delayk or unreasonable expense is a matter

within the discretion of the court, dependent uponthe circumstances of a
particular case. The problem of time has been reduced by the rapidity of travel,
which did not exist when the E.E.A. was enacted in 1872, but speed must be
balanced off against expense.
As was said in Thornhill v. Thornhill, [1965] E.A. 268 (C.A.) at p. 273:-

"The Learned Trial Judge also stated in his judgment that the cost and
inconvenience of bringing a witness from the United Kingdom would not be
great `in these days of rapid and inexpensive air travel!. with great respect, I
disagree that air travel in these days in inexpensive, although I agree thatit is
rapid. But the question seems to be this - is it justifiable legally to put the
petitioner to the expense of bringing a witness from the United Kingdom to
testify about a fact which is not denied and in respect of whose evidence the
court has a discretion to accept on affidavit, particularly as the petition is not
defended and no application was made to have the witness orally examined?"

Note how the circumstances of the case have a direct bearing on the decision. In
a concurring opinion in the same case on p.276, DELESTANG, V-P said:-

151
 "... I think (the Judge) was clearly wrong in his observation that the cost
and inconvenience of bringing a solicitor from the United Kingdom to
Uganda would not be very great. It is no exaggeration to say that to a
large number of people the cost of such a journey would be prohibitive
and to all but the wealthy cause serious financial embarrassment and
hardship. The inconvenience would also be equally great. consequently
the refusal of the application may result in grave injustice to the
petitioner."

The question has arisen as to whether a court may take judicial notice of
distances involved in order to assist in determining unreasonable delay or
expense. In Mohamed Taki v. R., [1961] E.A. 206, 213 (C.A.), the Magistrate
had not specifically referred to the provisions of s.30 U.E.O. in admitting
correspondence from an exporter in Switzerland without requiring that the
witness be called. The Court of Appeal said:-

"It might have been better if the Learned Magistrate had evidence before
him of the conditions which make s. 30 ... applicable. But he was entitled
to take judicial notice of the facts that Switzerland is in europe and that
Kampala is in Uganda and he seems to have been satisfied that the
attendance in Kampala of a witness or witnesses from Switzerland could
not be procured without an amount of delay or expense which in the
circumstances of the case appeared unreasonable."

Shortly thereafter in Commissioner of Customs v. S. K. Panachand, [1961] E.A.

303, 308 (C.A.) - see facts on p. 30 supra, the same court said:-

152
 "It may be that the court might take judicial notice of the distance
between Nairobi and the Hague and infer that the bringing of a
witness to Nairobi from the hague in relation to this particular case
would be unreasonable. In Mohamed Taki v. R., this court
suggested, though it did not decide, that such an approach would be
legitimate. Assuming, though not deciding, that the court would be
entitled to make such an inference, ...".

The question has arisen in connection with depositions. S. 157(2) C.P.C.

states:-

Any deposition so taken, if it satisfies the conditions prescribed by section

34 of the evidence Act and Cap. 80 may also be received in evidence at
any subsequent state of the case before another court.

Under an equivalent section, s.265 C.P.C. of Tanganyika, there appear to

be conflicting decisions. R. v. Msyaga s/o Kabwiri and Others, (1943), 10
E.A.C.A. 98 held that if a witness cannot be found or his attendance
cannot be procured, etc., no evidence is necessary, and all that is required
is that the Court should be satisfied that the witness cannot be found or
cannot be procured without delay, etc. A statement from presucting
counsel may be sufficient or the Court may ask for something more such
as evidence on the point. On the other hand, the same court in R. v.
Esmail Huseinali Hasmani, (1938), 5 E.A.C.A. 49 had held that no consent
on the part of the defence could dispense with the necessity of compliance
with the sections provisions which prescribed that the Judge should inter
alia be satisfied by the oath of a credible witness or witnesses that
153
 witnesses were absent from the territory before allowing their depositions
to be read.

The safest procedure is, of course, to require that evidence be forthcoming

by the party wishing to introduce the evidence to satisfy the conditions
precedent in the introductory paragraph.

In addition to satisfying the basic conditions precedent, my other facts

necessary to prove relevancy and admissibility list be established. For example,
in Mohamed Yusuf v. R., (1929) 12 K.L.R. 140 two documents styled as
amedical report and a death certificate were tendered on the grounds that the
maker, a "doctor in the east Africa Medical Service" was in England at the time.

The Court said that statements by him became relevant facts and
admissible in evidence if it were shown that such documents had been
written in the discharge of his professional duties, and that proof of the
fact of professional duty cannot be obtained from the contents of the
documents proffered as relevant facts under the section.

"It is manifest that a statement or memorandum cannot be treated as

relevant and admissible under that section before each of the conditions
constituting the fact of relevancy as set forth in that section have been
established by extrinsic evidence."

4. "cannot be procured".

154
 The new amendment to the section merely sets forth that the evidence is
admissible when the attendance of the person who made the statement "cannot
be procured". This presumably is designed to cover those instances when (a) the
maker of the statement is within the jurisdiction of the court but cannot be
summoned owing to diplomatic immunity, privilege, etc., and (b) when the
maker is not within the jurisdiction of the court, cannot be summoned and
refused voluntarily to appear. It must have been felt that the normal safeguards
which arise from the limited subject matter of the statements admissible under
the section would suffice to ensure accuracy.

(b) Evidence of opinion.

It should be noted that n those instances where evidence of opinion is

admissible, for example under ss. 51 (customs and rights) and 53 (relationship),
where the same subjects are covered in subsections of s.33 - here subs. (d), (c)
and (g), the opinion will be admissible if the necesary conditions precedent are
fulfilled; this presumably even though the grounds on which the opinions are
based are not available to the court. The same would appear to be true in those
instances where the subject-matter of the opinion is not specifically covered by
statute, for example, identity of an assailant where the statement relates to the
cause of death under subs. (a)

(c) Specific admissible statements

1. Statements relating to the cause of death.

155
 (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 into
quesiton.
.......

Such statements are generally referred to as dying declarations.

The conditions precedent for the admission of the statement are:-
1. the maker of the statement must be dead;
2. the statement must relate to -
a. the cause of his death; or
b. the circumstances of the transaction which resulted in his death.
3. the cause of that person's death must be a question in the case.

Note that the maker of the statement need not have been expecting death at the
time the statement was made, and that the case may be either civil or criminal.

a. Relating to the cause of death.

The section requires that the statement made by the deceased relate to the
cause of his death. In Mohamed Warsama v. R., (1956), 23 E.A.C.A. 576 the
deceased had made a series of dying declarations which were "precise and
detailed and, if true, conclusive". These statements, however, were admitted of
the cause of the death of another deceased, which the Court held was improper.
156
See also Antonio Barugahare v. R., [1957] E.A. 149 (C.A.) where the witness had
given evidence that the deceased woman had told her some six weeks before her
death that the first accused had asked her to marry him and to lend him money
to pay his poll tax, the Court held that this evidence was outside the scope of the
section and went beyond what was permissible, since the facts alleged were not
proximately relating to death.

b. Circumstances of the transaction which resulted in death.

The leading authority on the section in the I.E.A. is Swami v. King-

Emperor, [1939] 1 All E. R. 396, where the Judicial Committee of the Privy
Council considered admission of the evidence of a widow that the deceased had
told her that he was going to Berhampur as the accused's wife ahd written and
told him to go and receive payment of his dues. Their Lordships said at p.401:-

"It has been suggested that the statement must be made after the
transaction has taken place, that the person making it must be at any rate near
death, and that the `circumstances' can only include the acts done when and
where the death was caused. Their Lordships are of opinion that the natural
meaning of the words used does not convey any of these limitations.
The statement may be made before the cause of death has arisen, or before the
deceased has any reason to expect to be killed.
The circumstances must be circumstances of the transaction, and would be so
whether the erson was unknown, or was not the person accused. such a
statement might indeed be exculpatory of the person accused. Circumstances of
the transaction' is a phrase, no doubt, that cnveys some limitations. It is not as
broad as the analogous use in `circumstantial evidence' which includes evidence
157
of all relevant facts. It is, on the other hand, narrower than res gestae.
Circumstances must have some proximate relation to the actual occurence,
though - as, for instance, in a case of prolonged poisoning - they may be related
to dates of the actual fatal dose.

It will be observed that `the circumstances' are those of the transaction

which resulted in the death of the declarant. It is not necessary that there
should be a known transaction other than that the death of the declarant has
ultimately been cause, for the condition of the admissibility of the evidence is
that `the cause of (the declarant's) death comes into question'. The transaction
is one in which the deceased was murdered on March 21 or March 22, and his
body was found in a trunk proved to be bought on behalf of the accused.
The statement made by the deceased on March 20 or March 21 - that he was
setting out to the place where the accused lived, and to meet a person, the wife of
the accused, who lived in the accused's house - appears clearly to be a statement
as to some of the circumstances of the transaction which resulted in his death.
the statement was rightly admitted."

A situation very similar to that in Swami's case arose in Kaluma v. R.,

[1968] E.A. 349 (C.A.), where the three appellants had been convicted of the
murder of two women in Kenya. The appellants were wanted by the Uganda
police, and the two women were part of a party sent to kenya to find and arrest
them. Evidence was admitted at the trial that one of the women had been
making enquiries about the appellants and that this had been reportd to the
appellants, on the ground that it was relevant evidence about the enquiries was
admissible under s.33 of the K.E.A. as a statement made by a person who is
dead as to the circumstances of the transaction which resulted in death and was
158
not excluded as hearsay (Barugahare's case followed), the Court said on pp. 353
- 354:-

We do not consider that any question of a breach of the rule against

hearsay arises. If a witness says `I told the accused that Lillian was
looking for him' he is giving direct evidence of a fact, which, if relevant, is
admissible. In this case it was relevant as tending to showa motive or
reason why the accused persons should ahave hostile feelings towards
Lillian. The evidence was not tendered for the purpose of proving the
truth of what Lillain had said, in which case it would habe been
inadmissible. As regards what Lillian told Mr. Wauyo on the evening of
her death as to the identity of the persons she was proposing to meet, we
agree with the Chief Justice that Mr. Wauyo's evidence to that effect was
admissible under s.33 of the Evidence Act, which renders admissible
statements made by a person who is dead when the statement is made as
to any of the circumstances of the transaction which resulted in death.
Precisely the same situation as in this case was considered by the Privy
Council in Swami v. King-Emperor, ... a case which was approved and
applied by this court in Barugahare v. R., and in which it was held that
statements made by a deceased person that he was proceeding to the spot
where he was in fact killed, or as to his reasons for so proceeding, or that
he was going to meet a particular person, or that he had been invited by
such person to meet him, would each of them be circumstances of the
transaction, and would be so whether the person was unknown, or was
not the person accused. In this case Lillian, shortly before her death, told
Mr. Wauyo that she had been invited to meet one of the accused, and that
she was going to meet him, and evidence of this statement was in our
159
 opinion rightly admitted as relating to the circumstances which led to her
death."

See also R. v. Kabateleine s/o Nchwamba, (1946), 13 E.A.C.A. 164: complaint

made by deceased to headman two days before a hut in which she was sleeping
wasburned was held directly related to the occasion of the deceased's death and
was a circumstance which resulted in her death.

Applying these tests, the Court in Antonio Barugahare's case found that
the statement did not fall within the scope of the rule.
Similarly in Mohamed Warsama's case where the two murders were committed
at the same timeand place, the Court held that although the dying declaration of
one deceased was, in one sense, applicable to the death of the other deceased, it
did not fall within the section.

The section, being an extension of the English law (in that the declarant
need not be under expectation of death at the time of making the statement),
must be strictly construed; see R. v. Lyuangia bin Luwanya and Another, (1938),
5 E.A.c.A. 122, where statements of fear of the accused were held not to provide
a sufficiently close nexus with the murder. (This reasoning preceded that
incorporated in Swami's case). As noted in Byamungu s/o Rusiliba v. R., (1951)
18 E.A.C.A. 233, 237, the line of demarcation between statementsexpressing fear
or suspicion and thosefalling within the section is not always easy to draw. Here
thestatement was found to be closer incharacterto the one in Lyangia bin
Luwanya's case, which was held inadmissible, than to the statement in R.
v.Kabateleine, (1946), 13 E.A.C.A. 164, which was held admissible.

160
 A statement taken from a person who subsequently dies must not include
matter which would be inadmissible from the mouth of a witness e.g. hearsay or
opinion; Idi s/o Kondo v. R., (1953), 20 E.A.C.A. 272, 273. Note, however, that
those opinions which are admissible, for instance, identity, are also admissible in
dying declarations.

c. Incompleted statements.

If a statement is not completed before death, and there is any reason for
believing that the actual utterances would have been qualified by other words
which the dying man wished to utter but was by some cause prevented from
uttering, the value of the statement actually made is impaired, and as evidence
may be of no weight; Mohamed Yusuf v. R., (1929), 12 K.L.R. 140, 141. See, for
example, R. v. Charles Daki s/o/ Daki [1960] E.A. 34 (U), where a statement
which had been interrupted by a doctor was held inadmissible on the grounds
that the deceased might or might nothave added something, this on the
authority of Waugh v. R., [1950] A.C. 203. (The complete facts are found in
Charles Daki s/o Daki v. R., [1959] E.A. 931 (C.A.) in which the retrial which
resulted in the 1960 decision was ordered.) Waugh's case was, however,
distinguished on the facts in Abdulgafar v. R., [1964] E.A. 476 (C.A.) where the
Court held that the dying statement was complete in that it completely covered
the relevant incidents, and was accordingly admissible in evidence.

d. Weight and corroboration.

Perhaps the leading East African case on dying declarations is Pius

Jasunga s/o Akugu v. R., (1954), 21 E.A.C.A. 331. There a witness, an Assistant
161
Inspector of police, gavce evidence that he saw thedeceased lying on the road
with a wound in his chest. When he asked who had injured hinm the deceased
replied that Pius Jasunga had stabbed him. Later, in a hospital, the deceased
made a statement to an Assistant Superintendant by way of answering questions
put to him, but although there was evidence that his mind was clear and he
spoke quite strongly at first, he got weaker and weaker and was unable to sign
the statement. There was almost no corroboration of the story told by the
deceased. On the question of weight the court at p.333 said:-

" "In Kenya the admissibility of a dying declaration does not depend,
as it does in England, upon the declaring having, at the time, a settled,
hopeless expectation of imminent death, so that the awful solemnity of his
situation may be considered as creating an obligation equivalent to that
imposed by the taking of an oath. ... It has been said by this Court that the
weight to be attached to dying declarations in this country must,
consequently, be less than that attached to dying declarations in England,
and that the exercise of caution in the reception of such statements is even
more necessary in this country than in England. (R. v. Muyovya bin
Msuma, (1939), 6 E.A.C.A. 128 ...)

"The question of the caution to be exercised in the reception of dying

declarations and the necessity for their corroboration has been considered by
this Court in numerous cases and a passage from the 7th Edition of Field on
evidence has repeatedly been cited with approval:

`The caution with which this kind of testimony should be recivd has
often been commented upon. The test of cross-examination may be wholly
162
wanting; and ... the particulars of the violence may have occurred under
circumstances of confusion and surprise calculated to prevent their being
accurately observed. ... The deceased may have stated his inferences from facts
concerning which he may have omitted important particulars, from not having
his attention called to them.! (Ramazani bin Mirandu, (1934), 1 E.A.C.A. 107;
R. v. Okulu s/o Eloku, (1938), 5 E.A.C.A. 39; R. v. Muyovya bin Msuma, supra.)

Particular caution must be exercised when an attack takes place in

darkness when identification of the assailant is, usually, more difficult than in
daylight. (R. v. Ramazani bin Mirandu (Supra); R. v. Muyovya bin Msuma
(supra). The fact hat the decased told different persons that the appellant was
the assailant is evidence of the consistency of his belief that such was the case; it
is no guarante of accuracy. (ibid).

It is not a rule of law that, in order to support a convition, there must be

corroboration of a dying declaration. (R. v. Eligu s/o Odel and Another, (1943),
10 E.A.C.A. 90; ...), and there may be circumstances which go to show that the
deceased could not have been mistaken in his identification of the accused. (See,
for instance, the case of the second accused in R. v. (1) Eligu s/o Odel and (2)
Epongu s/o Ewunya, (1943), 10 E.A.C.A. 90.) But it is, generally speaking, very
unsafe to base a conviction solely on the dying declaration of a deceased person,
made in the absence of the accused and not subject to cross-examination, unless
there is satisfactory corroboration.

In addition to the cases cited above, we have examined the decisions of

this Court on the subject of dying declarations since 1935 and we have been
unable to find a single case where a conviction has been upheld which was based
163
upon a dying declaration without satisfactory corroboration, unless, as in
Epongu's case (supra), there was evidence of circumstances going to show that
the deceased could not have been mistaken in his identification of the accused."

See also Mibinga v. Uganda, [1965] E.A. 71 (C.A.); Okale v. R., [1965] E.A. 555,
558 (C.A.), and Tuwamoi v. Uganda, [1967] E.A. 84, 87 (C.A.) referring to or
quoting from Pius Jasunga's case, R. v. Mgundulwa s/o Jalu and Another,
(1946), 13 E.A.C.A. 169, and Dala d/o Mkwayi v. R., (1956), 23 E.A.C.A. 612,
also notes that the circumstances under which such a statement is made may
affect its weight.
In Pius Jasunga's case the statement had been made in the absence of the
accused by a man "suffering from a terrible wound from which he died a few
hours later, who was described as `very unconscious' when he was making it,
and who was unable to sign the stateent.

The probative force of the statement is not enhanced by its being made in
the presence of the accused unless by his conduct demeanour, etc, the accused
has acknowledged its truth. Consequently the trial judge should expressly state
whether he is satisfied or not that there was such acknowledgment. See
Mibinga v. Uganda, [1965] E.A. 71 (C.A.).

The declaration should be tested by the court for reliability, and

consideration of this question should appear in the judgment.
See Tuwamoi v. Uganda, [1967] E.A. 84 (C.A.) where the trial court failed to do
this. In this connection, the court should warn itself, and the assessors if any, (a)
of the danger of acting upon an uncorroborated declaration without
corroboration and (b) that the declaration has not been subjected to cross-
164
examination; Charles Daki s/o Daki v. R., [1959] E.A. 981, 935 (C.A.) and
Mande v. R., [1965] E.A. 193, 198 (C.A.), where the question arose when the
statement had been made when the declaring was in extremis and under a sense
of impending death, which normally gives the statement greater weight.
Another factor affecting weight is whether or not the statement was made in
answer to leading questions. Pius Jasunga's case, p. 335, noted that this would
not make the statement inadmissible even if the questions were not recorded,
but may greatly affect the weight to be given to the answers. It is most desirable
that both the questions and answers be recorded, and that the answers be the
actual words of the declaring. (See s. 149 K.E.A. for definition of leading
questions). If the statement is recorded by a Magistrate under the provisions of
s. 246 C.P.C., taking the depositions of persons dangerously ill, it may later be
admitted in evidence when the accused is charged with the offence relating to
the death of the person from whom the statement is taken. The Magistrate must
prove the document R. v. Chepsirer Arap Tanui, (1940), 7 E.A.C.A. 66.
The following points should be reflected upon the case record:-

1. The person making the statement is dead. (In cases where a statement
is made and the declaring thereafter recovers and appears as a witness, the
statement is not admissible under this section but may be sued to show
consistency under the provisions of s.165)

2. The statement must relate to the cause of death, or the circumstances of

the transaction which resulted in the death.

3. If the statement concerns identification which took place at night, extra

caution should be exercised
165
 4. A warning on he dangers of convicting in the absence of corroboration
and that the declaration was not subject to cross-examination. (In practice,
conviction will not be upheld in the absence of corroboration.)

5. A discussion of the circumstances in which the declaration was made

and the weight to be given to the declaration in those particular circumstances.
(The Court of appeal will exercise the right to form an independent opinion as
to whether or not a conviction based solely upon an uncorroborated declaration
could be upheld in the circumstances of the case; see R. v. Ramazani bin
Mirandu, (1934), 1 E.A.C.A. 107; R. v. Konstanti Kirimunyo, (1943), 10
E.A.C.A. 64, 65.)

6. If the statement is given to more than one person, the court should note
that this is evidence of consistency, but not necessarily of accuracy.

* On this point, remember that general statements of fear or suspicion not

directly related to cause of death or circumstances do not fall within the
meaning of the section and are not admissible under the section, although they
may be admissible under other provisions.

2. Statements made in the course of business

(b) When the statement was made by such person in the ordinary
course of business, and in particular when it consists of an entry or
memorandum made by him in books or records kept in the ordinary course of
business or in the discharge of professional duty; or of an acknowledgment
166
written or signed by him of the receipt of money, goods, securities or property of
any kind; or of a document used in commerce, written or signed by him; or of
the date of a letter or other document usually dated, written or signed by him.
........

Under the provisions of subs. (a), the person making the statement had to
be shown to be dead before the statement was admissible. In each of the
remaining subsections the statement may have been made by a person who is:-

- dead
- who cannot be found
- who has become incapable of giving evidence
- whose attendance cannot be procured without an amount of delay or
expense which appears to the court to be unreasonable in the
circumstances of the case.

See discussion, pp. 151 - 154, supra.

This subsection contemplates that the person who made the statement
ahad a duty to do so during the ordinary course of his business or profession. It
is this duty, combined with the routine nature of the entry made under
circumstances which would render it likely that the entry would be correct
which underlies the admissibility of the statement. This duty and routine is
reflected in the special instances noted in the section:-

1. Entries or memoranda in books or records regularly kept.

2. acknowledgments written or signed for the receipt of money, etc.
167
 3. any document used in commerce, written or signed by the maker.
4. the date of any letter or other document usually written, dated or
signed by the maker.

a. "in the ordinary course of business".

The type of statement contemplated by the section is one which is made in

the ordinary, everyday course of business, contemporaneously with the
transaction which is in question. The statement cannot be one which is
especially prepared for the projected suit or proceeding.

In R. v. Magandazi and four Others, (1914), 2 U.L.R. 108, the accused

were employed in Uganda to carry loads to the Congo. On a charge of theft of a
portion of the loads by the accused, a letter from an agent of the complainant's
firm resident in the Congo was placed in evidence, but the writer was not called.
The Court said:-

"... a letter was produced ... by the same witness purporting to come from
the agency of the complainant's firm in the Congo and shewing shortages
in the goods received. (Section 30(2) quoted). The provision of the
Section should in my opinion be only sparingly applied and rarely, if ever,
be used where the statement goes to the root of the whole matter before
the Court, as in the present case. Further the letter, although it may be
said to have been written in the ordinary course of business to report a
loss, appears also to be in the nature of a special letter written with a view
to the present prosecution." The letter was not admitted. (emphasis
added).
168
Similarly, in Idi bin Ramadhan v. R., (1949), 7 Z.L.R. 45, the statement of a
police constable was put in evidence during the course of the trial after it had
been proved that the constable in question had proceeded on leave. Presumably
the statement purported to be put in evidence under s. 32(2) of the Evidence
Decree. GRAY, C.J. quoted from Magandazi's case and from Ningawa v.
Sharmappa, (1897), 23 Bom. 63 at p.70 where it was said:-

"I think in using the phrase `in the ordinary course of business' the
legislature intended to admit statements similar to those, admitted in England,
as coming under the same description. The subject is clearly dealt with in
Chapter XII of Mr. Pitt Taylor's Treatise on the Law of Evidence, and the
case(s) which he had collected show that this exception to the general rule
against hearsay extends only to statements made during the course, not of any
particular transaction of an exceptional kind such as the execution of a deed of
mortgage, but of business which was usually followed by the person whose
declaration it is sought to introduce."

The Court continued:-

"As said in The Henry Coxon, (1878) L.R., 3 P.D. 156, a declaration in the
course of duty, in order to be admissible, must be contemporaneous with the
facts alleged by the declaring and must be made by a person who has no interest
to misrepresent those facts. here, the constable was speaking as to facts which
had occurred two days prior to the date of his statement.

169
 Fo these reasons I do not think the constable's statement ought to have
been admitted in evidence."

An illustration of the application of the section is Commissioner of

Customs v. S. K. Panachand, [1961] E.a. 303 (C.A.); for the facts, see p. 30 supra
in connection with s. 110 K.E.A. In discussing the application of the section, the
Court said on pp. 307 - 308:-

(a) that the attendance of a person making the statement cannot be

procured without an amount of delay or expense which appears to the court to
be unreasonable;

(b) that the document is a document used in commerce;

(c) that the document was written or signed by the person whose
attendance it is unreasonable to procure.

In WOODROFFE'S LAW OF EVIDENCE (9th Edn.) at p. 340 the Learned

author says, in relation to s.32(2) of the Evidence Act;

`The person wishing to give the evidence must give extrinsic proof ... of
the existence of the other circumstances conditional to the admission of this
evidence. Similar evidence of the ordinary course of business will also be
necessary. Where the statement is a written one, evidence must be given that it
is in the handwriting of the person alleged to have made it; and this may be
done by calling a witness who saw him write it or who is conversant with his
handwriting.' ...
170
 In the instant case no evidence was given to show that the delay of expense
involved in calling D. J. Blok asa witness would be unreasonable. It may
be that the court might take judicial notice of the distance between
Nairobi and The Hague and infer that the bringing of a witness to Nairobi
from the Hague in relation to this particular case would be
unreasonable. ... I would accept that the invoice with the certificate is, on
the fact of it, a `document used in commerce'. But no evidence whatever
was given to establish his status and authority for signing, or, indeed, to
show that the signature was his. ... It may be that if the statements in such
an invoice as the instant one are not challenged, the invoice may be
accepted by the court as an undisputed document, but, where the
statements are challenged, the provisions of s. 32 of the Evidence Act must
be observed. There may because where it is difficult to lead the evidence
to establish the foundation necessary for the admission of a statement
under the section, but that is not a reason for ignoring the provisions of
the section. ... In the result I think appellant's contention is sound, and
that there was no evidence before the Supreme court on which it could
hold that the statements in the invoice were admissible under s. 32 of the
Evidence Act; and that the invoice accordingly was of no value as
evidence of origin. ... I do not think the respondent firm discharged the
burden of proof laid on it by the Act."

The High Court of .................. recently examined the question whether a

postmortem report on a deceased was admissible under the section when the
maker of the report was abroad; R. v. Masalu, [1967] E.A. 355 (T). The report

171
was sought to be introduced as evidence, not under the provisions of the C.P.C.,
but under s. 32 I.E.A., and the Court noted the importance of the distinction:-

"Under (the C.P.C.) there are substantial safeguards with regard to

depositions of an absent witness such as hat the accused should have seen
the witness give evidence at the time the deposition was sworn or affirmed
and that he should have had the right to cross-examine the witness. Those
safeguards having been complied with, the deposition may in certain
instances be admitted in evidence. Under s. 32 ... however, an exception is
made whereby although the witness has never made any deposition in
such circumstances that an accused may have had the right to cross-
examine or see the deponent make his deposition. Nevertheless,
documents made by such a Person in the course of his professional duties
(see s.32(2) ...) may be admitted in evidence.

The conflict of interest in that basic rule in a criminal trial is that the
accused should be able to test the evidence which is adduced against him so that
justice can be seen to be done as the judgment proceeds upon evidence which
has been seen to be given in court. On the other hand, s.32 seeks to provide a
method where, by virtue of death or other circumstances, when the only
evidence is a document, that document should be admitted in evidence. The
safeguards under s.32 are that the document should have been made in such
circumstances that in the normal way of things mistakes would not occur, and
that there would not be any reason why the maker of the document should state
anything but the truth.

172
After examining arguments of counsel for the Republic concerning the
problems involved with technical experts who do not always remain in the
country, the Court concluded:-
"In my opinion, it is of greater importance that an accused person should
be able to see and hear and test the evidence adduced against him than that the
Republic should be permitted to adduce evidence which cannot be so tested. I
am also aware of the reasons for the production of the document under s. 32, as
I have explained above, but again I would say that it cannot be entirely
satisfactory to rely on a report, such as a post-mortem report in a capital charge,
when it is reasonably well-known that from time to time mistakes do occur in
such reports. I think to rely entirely upon and untested report would not be in
the interest of the Republic in general.

Section 32, in my opinion, provides for the technical admissibility of this

document. But to admit such document would be prejudicial to the accused and,
as I have said, it would not be in the interests of the Republic in general. I think
it is clear beyond doubt that in a criminal trial the court always has a discretion
to refuse to admit evidence which may be prejudicial to the Accused although
technically admissible.

I have no doubt that ti would be wrong in that it would be prejudicial to

the accused to admit this post-mortem report in the circumstances in this case
and accordingly I reject it."

3. Statements against the interest of the maker.

173
 (c) when the statement is against the pecuniary or proprietary interest of
the person making it, or when, if true, it would expose him or would have
exposed him to a criminal prosecution or to a suit for damages.

........

Pecuniary interest is an interest in money.

Proprietary interest is an interest in the ownership of property.

The statements in this subsection are referred to as "statements against

interest". The principle behind the rule that statements against interest are
admissible as an exception to the hearsay rule is again based upon human
nature, and the conclusion that in the normal course of affairs a person will not
make a statement which is against his own best interests unless the statement
were true.
For example, in Marie Ayoub v. Standard Bank of S.A., [1961] E.A. 743, 754
(C.A.), a statement in a letter in which it was said that persons were indebted to
the deceased for the running expenses of an estate (here held not admissible
under the section because the maker was not dead, etc.) would be a statement
against pecuniary interest.

The rule here must be treated with caution, for a statement which prima
facie might appear to be against a person's interests and which falls within the
section might, owing to the circumstances of the particular case, not be against
his real interests at all.
In Sebastian P. Dias v. R., (1927), 3 U.L.R. 214 is a good illustration. There, in

174
prosecution for falsifying books of account, the prosecution relied on a letter
written by a deceased clerk to the head of the department, charging the accused
with having ordered him to make the false entries. The Court said that the
statement, admitted in the lower court under s.32(3) U.E.O., was admitted:-

" ... as a written statement made by a deceased person which if true would
have exposed him to a criminal prosecution. The ground on which such
evidence is made admissible ... is that a man is not likely to accused
himself of a crime. Nothing could be more false; for one could easily
imagine cases in which it would be very much in the man's interest to do
so. In the present case the letter of Tomuasi would have involved him in a
very slight degree of criminality. It would have tended to his promotion
in the department and brought him into favor with his superiors. In my
opinion the change in the law made by the Evidence Ordinance must have
been dictated by the feeling that there might be cases in which it would be
undesirable to exclude such evidence.
Perhaps there might, but the circumstances would have to be very unusual. We
have here a letter accusing an accomplice and even if the writer could have been
called to give evidence in person his deposition would according to well known
rules have been regarded with grave suspicion and not acted on without full
corroboration. Here there was no corroboration." (The appeal was allowed).

The form of the statement is not important, as it may be either written or oral,
however it must have been against the interest of the maker at the time the
statement was made, and it must appear on the fact of it to the against his
interest.

175
Examples:-

Pecuniary interest - acknowledgment of indebtedness; Marie Ayoub,

supra.
Proprietary interest, a statement by A that he had rented the house of which he
was in possession at the time of the statement would be a statement against his
interest in the ownership of the property. Similarly, in a divorce suit, a
statement from A to the husband admitting that A had committed adultery with
his wife would be admissible as exposing A, at the time of the statement, to a
civil suit for damages, or a criminal prosecution in, for example, Uganda.

4. Statements of opinion as to public right or custom

(d) when the statement given the opinion of any such person as to the
existence of any public right or custom or matter of public or general interest, of
the existence of which, if it existed, he would have been likely to be aware, and
when such statement was made before any controversy as to such right, custom
or matter had arisen.

........

This section, and s.51 dealing with opinion evidence relating to customs
and rights by witnesses in court, are covered in the Chapter on Determination of
Customary Law, infra.

5. Statements relating to the existence of relationship

176
 (e) when the statement relates to the existence of any relationship by
blood, marriage or adoption between persons as to whose relationship by blood,
marriage or adoption the person making the statement had special means of
knowledge, and when the statement was made before the question in dispute
was raised.
........

Note the requirements of special knowledge on the part of the person

making the statement, and that the statement was made before any dispute
arose, not simply before the suit was filed. In Seif Ali el Bajuni and Others v.
Hamed bin Ali el Bajuni, (1945) 7 Z.L.R. 137, where the child claiming as son
and heir had been born 10 months after a divorce and it was sought to introduce
a document concerning the relationship written by the alleged father (see p. 60A
- Addendum to section 118), the court in discussing admissibility said:-

"As section 32(5) of the evidence Decree shows, a document written by a

deceased person can be received in evidence, when it `relates to the
existence of any relationship ...'. ... If the question in dispute had already
arisen, then the document must be rejected. ... In order to decide whether
or not the controversy had already arisen when the document was written,
the court may examine the contents of the document s well as evidence
dehors the document (i.e. outside of the document, or not related to it).
If the contents of the document conclusively show the existence of such a
controversy, then the document can, and should, be rejected in evidence.
... Here, the document itself conclusively proved the existence of the
controversy at the time that it is alleged to have been written. I therefore
hold that it was properly rejected." (p.135)
177
 A special knowledge is presumed where the case involves members of a
family, for example, if a deceased father makes a statement concerning a son.
Items which can be covered include age, commencement of the relationship,
dates of birth, order in which members of the family were born, parentage,
names of relations, date of death, etc. Note that the statement may be either
written or oral.

6. Statements relating to family affairs.

(f) when the statement relates to the existence of any relationship by blood,
marriage or adoption between persons deceased, and is made in any will or deed
relating to the affairs of the family to which any such deceased person belonged,
or in any family pedigree or upon any tombstone, family portrait or other thing
on which such statements are usually made, and when such statement was made
before the question in dispute was raised.

........

Subsection. (e) and (f) differ in three respects:-

1. subs. (e) requires that the person making the statement must be proved
to have had some special means of knowledge on the subject. This is not
necessary under subs. (f), for the source of the information would raise a
presumption of such special means.

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 2. Under subs. (e) the statement may relate to h existence of a relationship
between persons either living or dead, while under subs. (f) the statement must
relate to the existence of a relationship between persons who are dead.

3. Under subs. (e) the statement may be either oral or documentary.

Under subs. (f) the statement must have been made in some document of the
nature mentioned in the sub section.

The underlying principle is that it is doubtful that a person would insert

information dealing with these relationships into solemn family documents
unless he knew the information to be true. The statement, however, should not
have been made with the interest of the maker in mind, or with a view to future
litigation.

Example:-

A adopts a son, B, having no natural children. B leaves home, marries,

and has a son, C. B is killed in an accident. A dies leaving a will in which he
leaves his property to "my adopted son B, or if he be not living, to his sons, if
any." C, who can prove he is the son of B, files suit to collect the property. The
will is admissible in evidence to prove the relationship between A and B, both of
whom are deceased.

7. Statements relating to a transaction creating or asserting, etc., a custom.

(g) when the statement is contained in any deed or other document which
relates to any such transaction as is mentioned in section 13(a) of this Act.
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 .........
See p. 15, supra, and Chapter on Determination of Customary Law infra.

8. Statements made by several persons and expressing feelings.

(h) when the statement was made by a number of persons, and expressed
feelings or impressions on their part relevant to the matter in question.
........

Example:-
A draws a caricature of B which distorts his features and is such as to
expose him to ridicule, and hangs the picture in the shop window of his duka. B
sues A for libel. The question in issue is whether the caricature looks like B and
whether it is libelous.
The remarks of a crowd of spectators on these points may be proved.

When a number of persons gather together and express one common

statement, i.e. where all are of the same mind, and the statement expresses the
feelings or impressions in their minds at the time of making it, that "statement"
may be repeated by a witness and is evidence.

Example:-

A is charged under s.96 P.C. with incitement to disobedience of the law, in

that he printed a handbill designed to lead to disobedience of a law. The
handbill is distributed and a large crowd gathers. Statements of the crowd
indicating that the effect created is disobedience of the law would be admissible.
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 Note that the attendance of persons who actually made the statement has
not been procured for one as more of the reasons in the introductory paragraph.

d. Admissibility of evidence given in previous proceedings.

If a person has appeared as a witness in an earlier proceeding, the

admissibility of his evidence on that previous occasion is subject to special rules.

34.(1) Evidence given by a witness in a judicial proceeding is admissible in

a subsequent judicial proceeding, for the purpose of proving the facts
which it states, in the following circumstances -

(a) where the witness is dead, or cannot be found, or is incapable of giving

evidence, or is kept out of the way by the adverse party, or where his presence
cannot be obtained without an amount of delay or expense which in the
circumstances of the case the court considers unreasonable; and where, in the
case of a subsequent proceeding -

(b) The proceeding is between the same parties or their representatives in

interest; and

OPINION EVIDENCE

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What is opinion?

Opinion is defined to mean any inference which one may draw from perceived data.
It is whatever you infer from what you see, smell, hear, feel etc and the general
rule in evidence is that a witness should confined himself/herself to what they
perceive to leave the court to draw the inferences.

It is however not always possible to separate perceived facts from opinions in some
cases they are intertwined and it would be impossible to separate the two. The
court might sometimes need the opinion of people better placed than itself to draw
the inferences and it is in these situations that he court allows the inferences.

E.A. outlines the number of incidences when the court may be called to draw the
inferences where facts and opinions are so intertwined and the court needs
assistance by hearing opinions of experts better placed that itself. In all instances
where people are called to give opinion evidence, it is a general rule that evidence
be direct.

The first instances is where experts are called to give evidence, and experts are
people that are possessed of special skills in the field in which they are called to
opine or testify and the basis for admission of expert opinion is S. 48 of the
Evidence Act.

R v. Silverlock (1894) 2 QB 766

.and we had also started to look at when opinion is admissible having pointed out
that in ordinary circumstances opinion evidence is not admissible. So the rule is
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normally that oral evidence must be direct and when you talk about opinion it is
not direct evidence. So allowance for opinion evidence is an exception to the rule.

So essentially we said that where it would be not the usual case that opinion
evidence is admissible, there are certain instances where if you did not permit
opinion evidence it would be impossible to reach a decision on the matter because
firstly the matter may be too technical for the court and what the court is doing is
bringing in opinion evidence is to quipping itself through the admission of the
evidence of experts. So admission of expert evidence is an exception to the general
rule that oral evidence must be direct. And even if it is a document. Remember we
said that the person that authored the document should actually bring the document
to court. And I think I pointed out to you the general ground for admission of
expert opinion and this is contained at section 48 of the Evident Act:

Section 48 (1): “When the court has to form an opinion upon a point of foreign law,
or of science or art, or as to identity or genuineness of handwriting or finder or
other impressions, opinions upon that point are admissible if made by person
specially skilled in such foreign law, science or art, or on questions as to identity or
genuineness of handwriting or find or other impressions.
(2) Such persons are called experts.”

So essentially at section 48 (1) we are given the basis for bringing in expert
opinion. And it is the person that comes then to offer that expert opinion that is
referred to as an expert.

And I think we also pointed out that the second general instance when evidence of
opinion is going to be allowed is where it is impossible to separate facts from
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inferences, and an example here is where a person says so and so was driving at a
fast speed. You know that when you say that a person is driving at a fast speed you
haven’t seen the speedometer of the vehicle. You see a vehicle zoom by and then
you say that, my, it is moving at a very fast speed. And fast speed can be
something that depends on your perception of what is so going fast but if you
didn’t allow people to opine on what they saw a motor vehicle move then it may be
impossible to get evidence of this person. Also when you say that you are not
feeling well. When a person says I am sick. You are not a doctor. But there are
things that you feel that make you opine that all is not well. So when you tell the
court or when you tell people that you are not feeling well people will not ask you
what was your temperature…You say I think I am coming down with a flu. If the
person asks you what is your temperature or what are the symptoms of what you
feel and expect you to opine like a medical officer would on an allergy. They don’t
expect you to do that. But there is a realm at which you would know that a person
is not feeling well.

Then there is the whole question of age. When you say that you are so many years
old, that is a matter of opinion. You do not know how old you are. You have been
told when you were born. But that that is not a factual thing when a person says I
am 20 or 25 years old, it is a matter of opinion. And that would normally be
accepted because in those kinds of situations it would be impossible to separate
facts from inferences. Or even where a person says so and so was intoxicated. How
did you induce that a person is intoxicated? Have you used… what it the
instrument used to record how much alcohol is in a person’s blood? Whatever it is,
when you see a drunk person or where a person comes to you drunk, do you need a
medical doctor to tell you that a person is drunk?

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So essentially there you have both facts and inferences because you are looking at
the way in which a person is carrying themselves and inferring from that that he
could not see that they are behaving normally. And we are trying to explain away
why would they behave that; may be they had been seen at some liquor joint so
you can conclude that they are operating under the influence of and that is why
they seem to be not quite together.

Again the third instance where opinion evidence is admissible is where it is so

likely to be correct that convenience dictates that it be admitted. I think I stopped at
the point at which we had began to think at expert opinion. And to recap again the
opinion of experts only becomes relevant when the court has to form an opinion on
technical point on which it would not be usually equipped and those instances are
laid out at section 48. It is not in all circumstances that opinion evidence or expert
evidence is going to be permitted. It is where you have foreign law, a matter or
science, a matter of art, identity of handwriting or finger impression. Those are
things that you do not have knowledge of ordinarily. So you would require a
person that is skilled in the particular matter to be able to equip the court to come
up with a decision if that kind of matter is in issue.

So who an expert? We pointed out that in order for a person to be examined as an

expert he must be shown to be competent. He must be shown to have a special
study of the subject. He must also be shown to have acquired special experience.
So they must firstly be shown to be competent, to have a special study of the
subject or to have acquired experience in the subject. So an expert in simple terms
is going to be a person skilled, as having adequate knowledge of the subject matter
of inquiry.

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So essentially is not going to be always the case that an expert would be a person
who has gone to school on a particular matter. You could become an expert
through experience. So if you have long experience in something or you have been
observing a particular subject matter over a period of time, you could qualify as an
expert even though you have not gone to school to study the profession or business.

And the value of the evidence of an expert is enhanced or depreciated according to

their experience or the amount study that the witness has undertaken. And what I
am trying to underline here is you do not have to have both study and experience,
either will suffice. So in a nutshell we are saying that the value of your evidence as
an expert is going to be enhanced or depreciated depending on the number of years
that you have of experience or the number of years that you have devoted to study
of a subject.

And here it is illustrative to look at the case of study R v Silverlock (1894) 2 QB

766, where the court accept the evidence of a solicitor as expert opinion in a
matter involving handwriting because though the solicitor was in a manner of
speaking unschooled in the matter he was experienced through keen interest in the
matter. So if you have a keen interest in some subject or some area and the
question arises as to whether you are an expert what would be looked is not
whether you actually went to school to gain the knowledge if you gained the
knowledge through experience, then that suffices.

The other case that you should look up here is the case of Odindo v R (1969) EA
12. The appellant in this was convicted of driving a motor vehicle under influence
of alcohol. A police inspector testified to the effect that when the appellant was
brought to the control room of the traffic headquarters he smelled of drink. He was
186
incapable of coherently giving his name. He could not tell the time by the clock on
the wall and he could not stand on one foot with his hands horizontally stretched.
The inspector concluded his testimony by asserting that in his opinion the accused
was completely incapable of having control of a motor vehicle. The judge objected
to his opinion saying that the policeman should have confined his testimony to
what he observed, leaving the issue of fitness to drive to the court or a doctor. And
essentially you can see what kind of unfairness this kind of finding might. You
might just have a bad sense of balance; you cannot stand on one foot, that doesn’t
mean that you are drunk. If you can’t tell the time by the clock on the wall you
might be shortsighted, of you may be illiterate in telling time. Then if you can’t
coherently give your name, you may be a person that stutters. So essentially you
can see to allow people to make observations and then proceed to judge can
actually occasion a lot of injustice of the accused person. And this is what why the
court is saying that the police person ought to just say this is what I observed. But
having observed that has nothing to do with whether you can control a motor
vehicle or not. It may have a bearing when you control a motor vehicle but those
are matters that should be left to an expert.

And another case along the same lines is the case of Stephen v R (1973) EA 22.
Again here the court rejected evidence by a policeman that he had found the
accused in possession of a drug called bhang. And here what the court is saying is
you should tell the court that you found them with some substance of this colour,
of this consistency which smells like this. And then leave it to an expert who can
isolate the chemical compound of that substance to say that it is bhang. But a
person could crash chalk and say that they found you in possession of some
dangerous drug. And this is the kind of unfairness that one is trying to guard
against. And of course again you are trying to prevent people who would otherwise
187
be lay persons from giving opinion on matters that like study or long life
experience.

Another case along the same lines is the case of Charles Ngang'a v R, Kenya
Appeal Report Criminal Case no. 66 of 1980. The accused here was charged with
offence of causing death by dangerous driving. A police testified on the point of
impact to which the defence objected because the policeman was not an expert on
the matter. The defendant objected to this because in his view the policeman was
not an object on the matter. The trial court overruled the objection and on appeal it
was held that unless it can be shown that a policeman has many years of
experience in inspecting motor vehicle accidents, a police witness should not give
opinion evidence of such matter. And you can here again you do not need to have
gone to school to study this matter, only you to do is to have many years of
experience and the many years of experience will qualify you as an expert.

HOW DO EXPERTS TESTIFY?

Experts are brought to court by the party who whishes to rely on their expertise.
The person that would fail if a particular matter is not proved is the one that is
going to bring the expert to court. That part will inform the court of the expertise of
this person that they are seeking to have testify in court. They will inform the court
of the expertise because you just go along the street and just bring anybody and say
this is my expert. So there is a practice of briefing the court on what is the area of
expertise of this person. And the question as to whether a person is an expert or not
is a question of fact. So it is not necessarily the case that because you have brought
a person—I am told of a case in which a university student was appearing before a
disciplinary committee and when they were asked questions they refused to answer.
They were staying at the main campus and they said they wanted their lawyer to
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come in. And their lawyer happened to be a second-year law student. So you can
see how you can stretch this expert. You are being asked questions and this student
lawyer had not cleared their second year; they were still in the mark of some
papers, civil procedure, etc. and they were still there dressed in a suit and carrying
the posture of an expert. So the question as to whether a person is an expert or not
is a question of fact and that is determined by the court. And the pointer, the things
that will help the court in coming to the determination are:

1. Firstly, the educational background. You want to see certificates.

2. Evidence on the areas in his field where he has taken extra courses
3. Work experience

The case to look up here is the case of Mohammed Ahmed v R (1957) EA 323.
The appellant here had been convicted of occupying an unsafe house, which in the
opinion of the district housing inspector and the superintendent of works was so
unsafe as to constitute a nuisance. The court of appeal held that these two persons
were not qualified experts and so their evidence was inadmissible. Again go to the
fact that in this determination what the court is going to look at is the experience,
where they studied, and also the areas in the field of the courses taken.

In practice, if the expert has perceived of the fact from which he proffered his
opinion, if the expert directly perceived of the fact from which he or she proffered
his or her opinion, or if the facts are not disputed, such expert is asked direct
questions. If the expert directly perceives of the matters on which he is preferring
an opinion on or where those matters are not disputed you will ask that expert
direct questions such as was the accused insane, or was he so drunk as to be
incapable of controlling a motor vehicle. If however the expert did not perceive of
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the fact or if the facts are disputed he is asked hypothetical questions such as are
the facts adduced consistent with the existence of a certain state such as
drunkenness or insanity.

Under section 54 grounds for an expert opinion are admissible but this section does
not make it mandatory for the expert witness to give reasons. So while section 54
makes grounds for expert opinion admissible, it does not make it a must that those
reasons be given.

And here you should look at the case of the R v Salim s/o Sengero (1939) EACA
147, which is to effect that a court would welcome reasons for a witness’s opinion
even though it is not mandatory that this be given.

Note however that it is necessary for experts to give reasons for their opinions as
this helps to equip the court with better knowledge of the matter under
investigation. And the authority for that preposition is the case of Onyango v R
(1969) EA 362, which his to the effect that it is not a universal requirement that
reasons for opinion should be given. An expert should come to court prepared to
justify his opinion by argument and demonstration. But he need not necessarily be
asked to do so. In many cases it is sufficient if the expert gives his opinion. The
more eminent the expert the less the need for demonstration. So the long and short
of this statement is that while the law at section 54 does not require an expert to
bring in reasons for his opinion ordinarily when an expert is asked to give opinion
in court he should come prepared to justify their opinion and this justification will
be through demonstration and argument. So if they come prepared to demonstrate
an argument, their reason for the opinion and they are not asked to ….there is no
loss but you can imagine a situation when you came in without being prepared as
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an expert to give reason and then you are asked what the reasons are. In essence
what it is also saying if you are an imminent expert, you eminence speaks for you.
If you are an up and coming expert you will be more required to give reason than
the expert who is well established. Again the question as to whether a person is an
established expert or not is a matter of fact. You are looking at what their
education background, many years of expertise or work experience.

HOW SHOULD COURTS TREAT EXPERT OPINION?

Remember we are saying expert opinion is admitted as an exception to the general

rule and the question that I am posing is how courts should treat opinion of experts.
It is opinion only. And the court must still make its own conclusion. And there is
strong feeling that courts should not abdicate their responsibility of judicial making
to experts. So what the expert in essence is doing is assisting the court on matters
that the court is not too well equipped to opine on or to make a decision on. But
what the experts can mean, what they are doing is assisting the court. They are not
taking over the role of the court.

And the case to look at here is the case of Kit Smile Mugisha v Uganda , Criminal
appeal No 78 of 1976, where the court of appeal took the view that expert opinion
is only opinion and it cannot take the place of substantive evidence. The court
continues to state, “The court has to decide an issue upon such assistance as the
expert may offer but it should not abdicate its role of opinion-making to the expert.
It must form its own opinion on the subject matter at hand.”

And the other case to look is the case of Hassan Salum v R (1964) EA 172. This
case again is along the same lines that the court should not over rely on experts
191
because they can also make mistakes. And the court should not be bound by the
expert opinion.

A case to look at on the whole question of expert basing their opinion upon fact is
the case of the R v Kipikandimu and Three Others (1946) 7 Zanzibar Law Reports
page 90, where a medical expert gave evidence that certain injuries described by
him were inflicted before death. He gave no reasons for his opinion. The court held
that the opinion evidence was inadmissible as to the cause of death. And again this
is going to the fact that we are making that you should go to court as an expert
prepared to justify your opinion by argument and demonstration. So if the issue of
argument and demonstration arises and you are unable to defend that then it could
that the evidence is going to be thrown out. It will not even assist the court
informing its own opinion.

If the opinions of two experts conflict the court has to make its own opinion the
court by looking at the credibility of the evidence available and the eminence of
the experts. If the two conflicting experts are equal in eminence and credit worthy
then the matter is taken as not proved and the party on whom the burden of proof
lies has to dispense of it in another way.

What do we mean by creditworthy in evidence other than bank terms? Credit

worthy here is speaking about credibility or believability of a person as a witness.
Is that clear? So if the two of them are equally eminent and credit worthy, the
matter is taken as not proved and the party on whom the burden of proof lies has to
dispense with the matter in another way.

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Under section 63 (2), opinion evidence should be direct and oral unless it is
expressed in a book commonly offered for sale. In looking at the whole question of
expert opinion, you should revisit the question of proof of handwriting. You
remember when we were looking at documentary evidence you looked at proof of
handwriting under section 50. You should look at that again because when you are
trying to prove handwriting you go to expert evidence and these rules and
particular.

That dispenses then with expert opinion and we will now proceed to look at the
second category of instances where opinion evidence is admissible as an exception
to the general rule. We say that opinion is not generally admissible. It is only
admissible in three instances. We have looked at one instance and now we are
going to look at the second instance.

Second instance: when it is not possible to separate facts from inference.

A witness cannot communicate effectively without admitting opinion evidence.
And I gave the opinion of that to include issues pertaining to identity. For instance,
if I say that I saw somebody going into a place a stealing, all I am doing is opining
that the person that I saw stealing is the person that is now before me. Do you see
what I mean? When you are talking about identification of say a person who
committed a crime or identifying something you are just offering or tending an
opinion that the goods that are put before you are the same goods that were stolen.
Isn’t that an opinion? Because it could be the case that there were the same kind of
goods available elsewhere. So all you are doing is offering an opinion. There is
also the whole question of A who sells, etc. So when you talk about identify you
are not just talking about identity of person but also of things. So when you say
that you identify these implement or gun as the one that we used at the scene of
193
crime where you were you are just opining that what was before you is the same
thing that is before you in another instance. So we are saying that evidence of
identity is an expression of an opinion. And I am giving the example of goods. You
are opining that the goods that are recovered after a robbery are the same goods
that were taken during the robbery. Do you see what we are saying that you are
opining? It’s really just your opinion. Could you really say conclusively that this is
it? You would be opinion that this is it.

Courts treat opinion of identity very cautiously to avoid convicting people on

mistaken identity. And here the case to look at is the case of Roria v R (1967) EA
583. Here 14 days after a raid on a Masai manyatta, the appellant was identified at
an identification parade by the wife of one of the persons killed in the raid. He was
identified as "either the person on who killed her husband or who passed close to
her when entering the manyatta". And the court rejected this evidence noting that
the danger of possible wrong identification is greater when the only evidence is
identification by one witness and although no one could suggest that a conviction
based on such identification should never be upheld, it is the duty of the court to
satisfy itself that in all cases it is safe to act on such identification. In normal
circumstances courts will require corroboration of such identifications especially
where it is identification at night by single witnesses. And again this is because the
court must satisfy itself that in all circumstances it is safe to act on the
identification. In fact in instances where the only evidence is identification by a
single witness, the evidence is required to be absolutely watertight to justify a
conviction. In essence what we are saying is that that courts exercise a lot
discretion when they are faced with evidence of identification, and this is again
going back to the principle that we have often referred to—fairness to the accused

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person…. So if it is single witnesses at night you exercise more caution. If indeed
this is the only evidence for it to secure conviction it must be watertight.

How are identification parades carried out?

The procedure- and essentially here what I am now looking is possible ways of
identification. We have been talking about identification parade and that is not the
only way in which you can identify a person because we have been talking about
them-that is the person you look at. How do you carry out an identification parade?
And the procedure for the identification parade was laid out in the case of R v
Mwango s/o Manaa (1936) 3 EACA 29, which case was approved for the case of
Simon Musoke v R (1968) EA 72. And the procedure is as follows:

1. Firstly, the accused is always informed that he may have a lawyer or friend
present when the parade takes place.

2. Secondly, the office in charge of the case does not carry out the identification
but he may be present.

3. Thirdly, the witnesses do not see the accused before the parade

4. Fourthly, the accused is placed among at least 8 persons of a similar age, height,
general appearance—if the accused is scruffy you don’t bring unscruffy people--
and class of life as himself or herself. So there is similarity.

5. Fifthly, the accused is allowed to take any position he chases and he is allowed
to change position after each identifying witness has left if he so wishes.

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6. Sixthly, witnesses should not be allowed to communicate with each other after
they have been to the parade. That is of course as one is walking out and the other
one is walking in.

7. Sevenly, to exclude all persons who have no business at the parade.

8. Eighthly, careful notes should be taken after each witness leaves the parade and
the notes should include, did the witnesses identify any person and under what
circumstances, in what position was the person identified, or any other
circumstances of the identification.

9. Nine, if the witness desires to see the accused walk, hear him speak, see him
with his hat on or off, this should be done but all persons in the parade should be
requested to do what the witnesses has requested as a precautionary measure.

10. ten, the witness should touch the person he or she identifies

11. At the termination of the parade or end of the parade the accused should be
asked if he is satisfied that the parade is being conducted in a fair manner and a
note should be made of his reply.

12. In introducing the witness to the parade, the witness should be told that he will
see a group of people who may or may not include the suspected person and
throughout the parade it is critical that the parties conducting the parade act fairly
to avoid depreciation of the identification as evidence. It is dangerous or wrong to
suggest to the identifying witness that the person to be identified is believed to be
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present on the parade. And the case to look at here is the case of R v Bulatikwa
(1941) 8 EACA 46, where the officer conducting the parade told the identifying
witness: "You know a man called Bulatikwa whom you said killed your uncle,
come on to the verandah and see whether you can find him". And this was said to
be wrong because it is a suggestion that the person to be identified is actually in the
parade.

It is not established practice to question a witness who has made identification at a

parade as to their reasons for doing so. So you don’t put an identifying witness to
task after they have identified whoever they identify. A voluntary statement or
comment made by the witness however can be received as evidence as part of the
identification. So even though they are saying that you do not ordinarily ask
witnesses questions to find out the reasons why they identified a particular person
if they voluntarily make a comment then that comment will be recorded and should
be received as evidence as part of the identification. And the case to look here is
the case of Simon Musoke v R. You have it. I have already given it to you. In this
case the appellant was charged with another person on one count of theft of a
motor vehicle and two counts of robbery with violence. The evidence was that on
the material day the accused person had been seen at a funeral and at a bar dressed
in a helmet, which was readily identified by the prosecution witness. The evidence
of identification by the bar owner was rejected by the trial court on the grounds
that no question were put to this witness to elicit reasons for identification. The
stolen motor vehicle was found outside the bar and in it was found amongst other
things the helmet exhibited at the trial. On appeal the issue was whether the
evidence of identification was properly disallowed on the grounds that no
questions were put to him to elicit reasons for identification. And the court held
that it is not established practice to question a witness who has made an
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identification at a parade as to his reasons for doing so. Comments voluntarily
made by the witness are often received as part of the identification. But answers to
questions would be of less value and of doubtful admissibility. And essentially I
am just making the point that I made earlier: that it is not usual practice to begin to
ask a person questions at an identification: why did you identify that person? But if
they do volunteer statements those will be received as part of the identification.
And the authority for that preposition is the case of Simon Musoke.

The second way of identifying is through fingerprints. And fingerprints are

provided for at section 48. If you look at section 48 it talks about expert witnesses.
It talks about fingerprinting. And fingerprints may be taken also for purposes of
comparison. So fingerprints should be another way of identifying other than an
identification parade.

The third one is footprints. You can use footprints and here what is done is a
comparison of footmarks. You would look for instance for the soil type on the
shoes. You have seen cases where an offence committee and the only evidence
they might have is that the person was wearing a particular kind of shoes which
formed a particular kind of impression and the evidence would be to compare the
soil type at the scene of crime with the soil type on the shoe and to see whether the
foot marks left on that soil are the same as the ones that are contained in the shoes
that the person suspected wore. And the case to look at here is the case of R v
Maganga (1935) 2 EACA 59.

The fourth way of identification is by use of police dogs. And the question has
arisen here whether this is reliable. And the case to is the Wendo and Another v R.,
where it was stated evidence of identification by police dogs is admissible and can
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corroborate other identification. But the dog must qualify as an expert. So you have
to bring its training to court, and that has to be taken into account in weighing the
value of its evidence.

Before we leave the whole area of identification it is important to distinguish

between identification and recognition. Identification refers to a situation where
one is trying to remember whether the person you are seeing is the same person
you saw at the scene of crime, whereas recognition refers to the situation where
one knows the person, you know the person positively, and you saw them so you
recognized them when you saw them. You are not trying to remember whether the
person you saw at the scene of crime is the same person. You are saying you know
that person and that is the person you saw. Recognition is more reliable than
identification. And the case to look at here is the case of Reuben Taabu Anjononi
v R (1980) Kenya Law Reports page 59. You should look at that case on the whole
question of recognition versus identification.

Other issues of mixed fact and opinion, apart from identity related as we have said
to help especially where one is testifying as to their own health. So when a person
says that they are sick, this is opinion as I have pointed out. Because the person
does not go into the detail of the causes of the illness or the incapacity resulting
from this illness. The cause of illness and incapacity resulting from the illness will
be matters left to experts but that does not remove from you the capability of
opining on your being sick. The other example we have said is speed. One can say
whether or not a particular motor vehicle is being driven at a particular speed, you
do not need to be a rocket scientist to tell whether a vehicle is being driven at a fast
speed. The practice, however, is not to convict on the evidence of single witnesses.
So on questions of speed even though a person will find that the vehicle was
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moving at a fast speed, conviction should not be based on the evidence of single
witnesses. This is provided for at section 43 (3) of the Traffic Offences Act.

Therefore we are talking about identification. Remember with identification there

are different ways of identifying. You can use identification parade, you can use
fingerprints, you can use footprints, you can use police dogs.

The second one we have said is health, and we have also talked about speed. The
next is age.

Age
Witnesses often testify as to their own age. But this is a fact upon which such a
person cannot have first hand knowledge of that age. Because you know that age
can only be proved can only be proved by the testimony of a witness other than the
person in question who was present at birth, or the production of a birth certificate.
So when you testify as to your age, you are giving an opinion, even when you
testify as to the age of persons at whose birth you were not present, you are giving
an opinion. And of course you know that age is a prime factor in certain cases. For
instance if you want to distinguish between an inditement for rape and defilement
age is going to be a factor. Or if you want to establish at what age that criminality
attaches to a person’s act, that is critical and so you may have instances where
opinion of a person’s age is being given. And of course if you want to you may
actually call for people that were there when the person was born. And normally
this is what is done. You either bring a birth certificate or have people testify as to
age.

200
There is also intoxication as mixed facts and opinion. And here the evidence is
based upon observation, which you can give without any scientific check being
carried out. And of course we go back to the case of Odindo v R . Remember
Odindo was permitted to tell the court what this man could not do but he was not
permitted to opine on whether the person was capable of controlling a motor
vehicle or not. But to be able to tell that a person is operating under the influence
of alcohol this is not the time either. By observation, facts and inferences, you
have facts on how the person is walking, they normally walk straight but now they
are not properly focused, they are probably tottering around… those kinds of
observations. All a person that you know is not really short sighted, that doesn’t
seem to be seeing very far. So you should revisit here when you are looking at
intoxication the case of Odindo v R to see just what kind of opinion will be
admitted and which will not be allowed as far as investigation is concerned.

WHERE OPINIONS ARE ADMISSIBLE ARE CASES WHERE OPINIONS

ARE SO LIKELY TO BE CORRECT
And the final category of circumstances where opinions are admissible are cases
where opinions are so likely to be correct that the court deems this convenient and
time saving to admit them. And examples here opinions as to handwriting of a
person by person acquainted with such person's handwriting. And this is provided
for at section 50(1)—opinion as to handwriting of a person by a person acquainted
with such person’s handwriting. Because remember, handwriting is a matter for
experts. So when you have a person acquainted with a handwriting be allowed to
opine as to whose handwriting is before the court or is under proof, it is an
exception to the general rule. You are allowing this person to bring what they
know to bear on the determination.

201
The second example is contained at section 51 (1). Opinion as to the existence of a
general rights or custom by persons likely to know of it. Who would be the persons
to know of the existence of customary law? Who are the repository of customs?…
So you would be going to people who have a working knowledgeable, a familiarity
of general the rights or customs.

Thirdly, opinion as to usages, tenets, constitution, and government of any

association body or organization given by persons having special means of
knowledge thereon. This is provided for at section 52. So here you are
contemplating a situation where the whole question about say the articles of faith
of some cult. So the opinion of persons who would have knowledge of those
special means of knowledge. Say you are a member or you are actually a senior
person in the cult, then you will be allowed to opine on those articles of faith or the
constitution or the tenet of that body, organization, etc.

And fourthly, opinion as to the relationship of one person to another, expressed by

conduct or evidence of persons who are best placed to know it. So for instance, if
the question is whether X and Y are married, the fact that they were usually by
their friends as husband and wife would be relevant and admissible opinion
because that is an opinion as to a relationship by a person who has special
knowledge. And that is provided for at section 53.

202
 EXPERT WITNESSES IN OPINION EVIDENCE

There are a number of special instances when witnessesmay becalled

upon to give evidence of opinion, which is an exception to the general rule that
oral evidence must be direct evidence; see s. 63. One ofthese situation involves
the evidence of expert witnesses, so-called because of the possession of special
skills in the areas on which they are called to testify.

203
48.(1) When the court has to form an opinion uon a point of foreign law,
or of science or art, or as to identity or genuineness of handwriting or
finger or other impressions, opinions upon that point are admissible if
made by persons specially skilled in such foreign law, science or art, or in
questions as to identity or genuineness of handwriting of finger or other
impressions.
(2) Such persons are called experts.
.................
Note the fields to which the expert opinion is limited:-

- foreign law, i.e. any law which is not in force in Kenya.

- science or art, including all subjects on which a course of study or
experience is necessay to the formation of an opinion
This does not, however, limit the category to knowledge which is gained
academically, for as was said in Gatheru s/o Njagwana v. R., (1954), 21
E.A.C.A. 384, 385 -

"We think that such special skill is not confinedto knowledgeacquired

academically but would also include skill acquired by practical experience.
In Vander Donekt v. Thellusson, (1849) 8 C.B. s. 18 Maule, J., said `All
persons, i think, who practice a business or profession which requires
them to possess a certain knowledge of the matter in hand are experts so
far as experience is required'. That case has been very recently approved
by their Lordships of the Judicial Committee in an appeal from Nigeria.
Said
Ajami v. Comptroller of Customs, (reported in [1954] l W.L.R. 1405)
where Their Lordships said that the practical knowledge of a person who
204
 was not a lawyer might be sufficient in certain cases to qualify him as a
competent expert on a question of foreign law." (see also Kimari s/o
Mihindi and Others v. R., (1955), 22 E.A.C.A. 472, 474 where this passage
is quoted.)

- identity or genuineness of handwriting.

- identity or genuineness of finger or other impressions, i.e.
fingerprints, footprints, etc.
Several cases have arisen where the question posed was whether the
witness was, in fact, an expert in the particular circumstances.
For example, in R. v. Billa s/o Luhoya, (1947), 14 E.a.C.A. 137, evidence as to
the cause of death was given by a Hospital Assistant who was not a qualified
medical Doctor. The Court noted:-

"We appreciate the conditions and circumstances which bring it about

that it is often the case that no better evidence can be obtained than that
of a Hospital Assistant with some medical knowlege, but we think it is
right to utter the warning that where in a case there is other evidence not
tending to corroborate the cause of death testified to by such a witness,
this Court would not accept an opinion given by an unqualified Hospital
assistant, as that of a medical expert as establishing the cause of death."

(a) Practice - qualification of experts in court

As a rule of practice, a witnessshould alwaysbe qualified in court before

giving his evidence. this is done by asking questions to determine:-

205
 1. The witnesse's educational bacground or, where the qualification is on
the grounds of practical experience as noted above, his background in thuis
ragard.
2. Areas in hisfield where he took extra courses or degrees to qualify
himself further.

3. Work experience including paces, times, length of experience,

conditions under which he worked, etc.

Failure prperly to qualify an expert amy result in exclusion of his

testimony. Compare for exampe the following:-

In Gatheru's case a police officer giving evidence in a case concerning

unawful possession of a firearm, merely described himself as an Inspector of
Police attached to the C.I.D. at Nanyuki, without telling how long he had
performedhis duties or whether he had ever seen or examined any home-made
weapon other than those seized in the course of the operation which led to the
arrest of the defendant. the Court said:-
"It may well be that in the resent circumstances in Kenya a police officer
employed on operational or investigation work requires a sufficient
practical knowledge to qualify him to speak as an expert on the type of
home-made weapon so frequently used by Mau Mau terrorists, but even
so, his competency as an expert should, as in all such cases, be shown
before his testimony is properly admissible."

206
Kimari'scase dealt with similar facts, aso the unlawful possession of a firearm bt
the court discussed the differences between this case and Gatheru's case by
saying:-

"The case (Gatheru's case) differs materially from the instant matter in
that there was no evidence as to the police officer's experience of such
home-made weapons, or as to how long he had performed the duties of an
investigating officer, or whether he had even seen or examined any home-
made weapon other than those seized in the course of the opeation which
ed to the appellant's arest. In the present case the police inspector
testified to long experience of such home-made weaspons of which he had
seen about a hundred."

Note that the distinction is not necessarily the experience of the two witnesses,
but the fact that the one was properly qualified in court, whereas the other was
not.

when, however, a witness is prima facie qualified and his evidence is not
challenged, the evidence will not always be inadmissible. In Mohamed Ahmed v.
R., [1957] E.A. 523, 525 (C.A.) a District Health inspector and a Superintendant
of Public works gave evidence in a case involving an order to dewtroy a house
which was considered to be unsafe. On appeal the appellant submitted that the
evidence of these tw mena was not admissible as their qualifications to
giveexpert testimony had not been shown. the Court said:-

"It is true that in (Gatheru's case) this court said that the competency of
an expert witness should be shown before his evidence is admitted. that,
207
 however, is a rule of practice and the omission to observe it will not in all
cases render the evidence inadmissible; particularly when, as in the
instant case, the witnesse's occupation imports a prima facie qualification
and his capacity to give expert opinion is not challenged. The rule will
obviously
be applied more strictly in criminal poceedings than in civil ones, and the
original proceedings here, though entered as a criminal cause, were mere in the
nature of a civil case." (emphasis added).

In the report of the lower court case, Re Mohamed Ahmed's Application, [1957]
E.A. 277, 278 (U), the Court had used similar language, holding that Gatheru's
case was not relevant in the particular circumstances, saying:-

"This witness also failed to state his qualifications or ecperience, buthis

evidence wasmerely to the effect that there had been extensive ravages by
termites and thatthebuilding would collapse sooner or later, according to
the pace at which these ravages advanced, there being no means of
checking their progress short of pulling up the entire foundations. I think
the Magistrate was entitled to assume that a superintendent of works
would not be wholly without experience of buildings and building
materials; nor was his evidence related to any complicated or technical
question, and indeed counsel who appeared in the district court for the
owner of the building does not appear to have cross examined this witness
at all."

Thus, although the admission of unqualified opinion evidence will be upheld in

circumstances such as the above, it is far better to avoid the problem by
208
ensuring that the witness is, in fact, qualified in court before allowing the
evidence to be given.
(b) Evidence of facts precedes expression of opinion.
While ultimately it is the duty of the court to form opinions based upon
facts admitted in evidence, the court may not be in a position properly to
evaluate facts on technical matters. Since the expert, properly qualified, is by
training and experience ableto draw inferences from speciaizedfacts with more
accuracy than the court, the ecpert, after testifying asto the factswithin his
knowledge, is alleged to expression opinion as to the meaning of those facts. In
this connection:-
49. Facts not otherwise admissible are admissible if they support orare
inconsistent with the opinions of experts, when such opinions are
admissible.
The rationale behind s. 49 is that the opinion of an expert witness is upon to
corroboration and/or rebuttal. The opinion of the export witness is not binding
on the court, but is considered together with other relevant facts in reaching a
final decision is the case. A court isnot bound to accept the evidence of experts if
it finds good reason for not doing so, see, for example, C.D. de Souza
v. B.R. Sharma, (1953), 26 L.L.R. 41 at p. 42, wherethe expert evidence of the
market cstsof construciton were rejected by a Rent Central Board, whose
decision to do so was upheld on appeal.

If there is a confict of expert opinion, with experts appearing for both parties,
resolution of conflictingevidence or the acceptance of the evidence of one expert
in preference to the opinion f the other, is the responsibility of the court.
Failure of an expert witness to base his opinion upon facts presented in
court may lead to the evidence being rejected, as in R.v. Joseph Kupikandimu
209
and 3 Others, (1946), 7 Z.L.R. 90, where the medical witness who gave evidence
stated in his deposition that certain injuries described by him wore inflicted
before death, but he did not give any reasons for the opinion. the court said:-
"As said by the East African Court of appeal, a medical witness should
always be askedfor reasons for the opinion which he gives. (R. v. Salimu
Sengero, (1939), 6 E.A.C.A. 147). It has to be remembered that the
evidence on such points is merely opinion evidence and, though any
opinion coming from an expert must always be entitled to the highest
possible respect, the court is not bound by it and is entitled to form an
opinion of its own. In this case, where the person killed had been dead for
a fortnight or more and the body was in an advanced state of putrefaction,
one definately wantedthe reasons of the medical witness as to why he held
that the wounds were caused before death."

Properly grounded, expert evidence of scientific conclusions will be

extremely persuasive in assisting the court to reach its own opinion, more so
when the area of science is one lending itself to a greater degree of exactness that
in instances of, for example, comparison of handwriting (see below). For
example, the following quotation from John Cancio de Sa v. N. Amin , (1934), l
E.A.C.A. 13 at p. 15:-

"(Councel), for the appellant, attacks the expert evidence. He says

Scientists have been proved to be wrong before this case, and he readsa
passgefrom the Judgment of Jessell, M.R. in Lord Arbinger v. Ashton,
L.R. 17 Equity at p. 373, in which various reasons are given for
distrusting expert evidence in matters of opinion. But if expert evidence is
to be rejected merely because scientists can be and have been wrong, or
210
 because a distinguished Judge expressed distrust of experts in matters of
opinion, Courts would have to reject evidence relating to blood tests and
poison tests, and many murderers would go seat free. Mr. Fox's evidence,
though amounting to an opinion, was based upon chemical investigaiton'
chemistry is not occult, and it was no suggested in cross-examination at
the trial nor in argument before us that Mr. Fox did not possess the
necessary.
Scientific qualifications for his task, or did not resort to the proper tests,
or drew drew inaccurate inferences from the results that he obtained
from the testsmade.
I d onot see any reason why Mr. Fox's evidence should have been
rejected."

In certain instances the evidence of the expert is admissible under

provisions relating to depositions, as Kupikandimu's case, above, or under other
provisions in the Evidence Act, without the necessity of the personal appearance
of the expert in court. For example, s. 77 K.E.A. provides for the admission, in
criminal cases, of reports by Government analysts orgeologists upon the thing
submitted for examination, and there is a presumption under subs. (2) that the
signature on the document is genuine and that the person signing it held the
office and qualifications which he professed to hold as the itme of signing. Subs.
(23) provides that the court may, if it thinks fit, summon the analyst or geologist
and examine him. Mwinyi bin Amin Muranawav. R., [1960] E.A. 21S (Z) had
occasion to consider a similar provision in s. 34 Dangerous Drugus Decree (Cap.
64) and s.9, Native Liquor Decree (No. 6/1942), similarly worded:

211
 In anyproceedingsunder this decree th4 production of a certificate
purpoting to be signed by a Government Chemist stating the ingredients
of any substance submitted for his examination shall be sufficient
evidence of the facts therein stated.

The Court said on p.219:-

I refer to Gatheru s/o Njagwara v. R., ...... (discussing and quoting).

It seems to me that s.34 of Cap. 64 and s.9 of decree No. 6 of 1942 merely
prescribe a conveneint way of proving what arethe ingredients of a substance
examined by a Government chemist without having to putthe Government
chemist, but should the issue be disputed as to what were the ingredients of the
substance examined by him the cou would in a fit case adjourn the trial for his
attendance.
My point is that these sections do not preclude other methods of proving
whether a substance is a dangerous drug or native liquor."

The Court then concluded that there was evidence to ake it safe for the trial
Magistrate to find that the substance in question was bhang and upheld the
conviction.

For all illustration of facts beinggiven before expression of opinion, see

Hassan Salum's
case, handwriting section, below.

(c) Proof of handwriting.

212
 In addition to proof ofhandwriting by expert witnesses, there are two
other sections in the K.E.A. dealing with the subject, s.50, opinion as to
handwriting, and s.76, comparison of signatures, seals, etc.

1. By expert witnesses.
The law on the opinions of experts as regards handwriting was set forth in
Salum v. R., [1964] E.A. 126 (T) in which the appellant had been charged with
forgery, uttering a forged document, and staling. The only evidence against the
appelant was of opportunity to commit the offeces and of a handwriting expert
who statedthat he had compared the signature on the postal receipt with a letter
written by the appellant and specimens of the handwriting of the appellant and
two other messengers in the same employment, and had come to the conclusion
thatthesignature on the receipt and the letter were written by the sanme person,
who was the appellant.
In its judgment, pp. 127-8, the Court said:-

"The handwriting expert said that he had compared the signature on the
postal receipt and also a letter apparently written by the guilty person in an
attempt to cover up the offence, with specimens of the handwritings of the
appelant and two other messengers employed by the City Council. He came to
the conclusion that the signature on the receipt and the letter were written by
the same person but were not in the handwriting of eother of the ther two
messengers; but had been written by the appellant and he added `of this I have
no doubt whatever.'
He produced photographic enlargements of specimen letters and described
them as 'identical in style, character and palmlifts' andsaid that the only

213
discrepancies that appeared were due to the normal variations that occur in the
writing of a person at different times and under different conditions.
The learned Magistrate correctly directed himself that the evidence of the
handwriting expert was an olpinion only and thatthe matter was one on which
the court had to make a finding.
He is inspected the specimens ofhandwriting himself and found that the forged
document, that is, the postal receipt, had been written by the appellant.
At the hearing of the appeal, I was not referred to any authority on the
weight to be given to such evidence and, indeed, there appears to be remarkably
little. The only reported case which I have discovered which is of assistance in
the presentcase is Wakeford v. Lincoln (Bishop), (1921), 90 L.J.P.C. 174) in
which Lord BIRKENHEAD observed:

`The expert called for the prosecuiton gavehis evidence with great
candour. It is not possible,', hesays, `to say definately that anybody wrote
a particular thing. All you can do is to pointout the similaritiesand draw
conclusions from them.'who have to make up their minds, with sucy
assistance as can be furnished to them by those who have made a study of
such matters, whether a particular wiriting is to be assigned to a
particular person.'

I would refer also to a passage from the summing-up of Lord HEWARD

in the trial of William Henry Padmore ... when he said:

'Let me say a word about handwriting experts. Let everyone be treated

with proper respect, but the evidence of handwriting experts is sometimes
rather misunderstood. A handwriting expert isnot a person who tells you,
214
 this is the handwriting of such and such a man. He is a persn who,
habituated to the examination of handwriting, practiced in the task of
making minute examination of handwriting, directs the attention of
others to things which he suggests are similarities. That, and no
morethan that, is his legitimate province.'

The summing-up receivedthe express approval of the Court of Criminal Appeal

in R.v. Podmore. (1930), 46 T.L.R. 365; 22 Cr. App. Rep. 36).

I would say at once that in my opinion the expert witness was at fault in
two respects. In the first place, he merely referred generally to his methods but
did not expain to the court the particular features of similarity or dissimilarity,
so enabling the court to weigh their relative significance.
Consequently, his evidence was of no assistance to the Magistrate when he
examined the specimens of handwriting. Secondly, I think, that in saying that
he had no doubt that the forged signature had been written by the appellant, he
was going far beyond the proper limits. I think the true answer was given by
the expert in the Bishop of Lincoln case, that 'it is not possible to say definitely
that anybody wrote a particular thing!. I think an expert can properly say, in
an appropriate case, that he does not believe a particular writing was by a
particular person. On the positive side, however, the most he could ever say is
that two writings are so similar as to be indistinguishable and he could, of
course, comment on unusual featues which make similarity the more
remarkable. But that falls for short of saying that they were written by the
same hand.

215
 I think the expert witness, and possibly also the Learned Magistrate, may
have fallen into the error of treating handwriting evidence on the same footing
as fingerprint evidence.
There is a presumption that no two persons have identical fingerprints, but
there is no presumption that no two persons have similar handwritings."

For a case in which the expert evidence of handwriting proved the forgeries in
question but did not relate them to the appelant, he D.R. Khetani v. R., [1957]
E.A. 563 (C.A.), See also Nadhan Singh v. Pritam Singh (1954), 21 E...C....
82,experts for both parties.

2. by opinion evidence other than by experts

50.(1) When the court hasto form an opinion as to the person by whom
any document waswritten or signed, the opinion of any person
acqaintedwith the handwriting of of the person by whom it is upposed to
be written or signed that it was or was not written or signed by that
person, is admissible.
(2) For the purposes of subsection (1) of thissection, and without
prejudiceto any other means of determining the question,a person is said
to be acquainted with the handwriting of another person when he has
seen that person write, or when he has received documents purporting to
be written by that person in answer to documents written by himself or
under hisauthority and addressed to that person, or when in the ordinary
course of business documents purporting to be writtenby that person have
been habitually submitted to him.
..............
216
Examples:-

The question is whether asignature on a letter from A, who lives in Dar-

es-Salaam, is a forgery.

B is an exporter who lives in Nairobi, and has written letters addressed

to A in Dar-es-Salaam, receiving back letters which are purported to have
been written by A.

C is B's Secretary, whose duty it is to examine and file B's correspondence.

D is B's solicitor. B regularly submits letters purporting to be from A to

D for his legal advice.

The evidence of B, C and D as to the genuineness of the handwriting of A

are admissible, even though none of them have ever seen A write.

If A were present in court, he could, of course, identifyhisownhandwriting

asheis the person most familiar with it. Other persons such as A's wife, his
Secretary, or others who have seen him write many times and are familiar with
his handwriting, could also give evidence as to its genuineness.

Note hat the word "habitually" in subs. (2) means "usually", "generally",
or "according to custom". It does not refer to the frequency of the occasions,
but rather to the invariability of the practice. A record-keeper, who in the
course of his official duty has to file paperssentto him, is competent to testify
217
asto the handwriting of the person whose papers hefiles, though the number of
such papers may notbenumerically great. See RATANLAL, p.137.

76.(1) In order to ascertain whether a signature, writing or seal is that of

the person by whom it purports to have been written or made, any
signature, writing or seal, admittted or proved to the satisfaciton of the
court to have been written or made by that person, may be compared by a
witness or by the court with the one which is to be proved, although that
signature, witing or seal has not been produced or proved for any other
purpose.

(2) The court may direct any person present in court to write any wods
or figures for the purpose of enabling the court to compare the wods or
figures so written by such person.

(3) This seciton applies with necessary modifications to finger

impressions.

Note that the document which is to be used for the purpose of comparison
must either be admitted to have been made by the person whose writing is in
question, if it must be proved to the satisfaction of the court to be in the writing.
A tacit admission may be made by the conduct and evidence of a party. In Pepe
v. R., [1960] E.A. 132, ..... (GSA) the accused had given evidence on oath and the
Court said:-

"... We think that in a criminal case evidence given by an accused person

may be of such a nature as to amount to a tacit admission of the identity
218
 of handwriting in adocument. In the instant case evidence had been given
that exhibit 18, a report signed by the appellant which had reached Mr.
Lawson, the divisional engineer, in the ordinary course of office routine,
was in the handwriting of the appellant; and a comparison between
exhibit 18 and the December paysheet was carried out by Mr. Nefdt (and
expert witness in handwriting) in open court on the basis that exhibit 18
was in the apellant's handwriting. As pointed out by the Learned Judge in
the summing-up, there was no cross-examination on the statements of the
two witnesses who said that exhibit 18 was in the appellant's
handwriting..... The case differsfrom one in which an accuseddoesnot give
evidence on oath. In such a case the mere fact that the accused remained
silent culd notbe taken to be a tacit admission for the purposes of s.73 of
the Evidence Act. In the circumstances of this case, however, we think
there was clearly a tacit admission by the appelant that the handwriting
on exhibit 18 was his ...." (enogasus added)

The writing in question,to which the proved oradmitted document is to be

compared, must purport to have been written by the same person, i.e. the
second writing must itself state or indicate that it was written by that person.

Subsection (2) does not mean hat an accused may be compelled

to write words or figures for purposes of comparison. In addiion to the
basic proteciton afforded an accused in the Constitution in Chapter II,
s.21(7) that "We person who is tried for acriminal offence shall be
compelled to give evidence at the trial," and the lack of any enforcement
provisions (s.152 C.P.C. deals only with refractory witnesses and makes
no mention of sanctions in connection with the performance of act), a
219
 distinction has been drawn between the words "may direct" and
"compel". As stated in SARKAR, pp. 675-6:-

"The words used are `may direct' and not `compel' ... and so the idea of
using compulsion to enforce obedience to the court's order does not
arise. ... mere direction to write words or give finger impressions does not
imply any obligation to comply. That being so, the accused has the right
to protest or to refuse to comply, and s.73 does not arm the court with any
compulsive power to enforce obedience to its direction. `The direction
contemplated in s.73 is not compulsion; s.73 is only an enabling provision
which confers power upon the court to give certain direction and does not
impose any oblegation upon the person to comply with it and there is no
other provision obliging a person to write any words at the dictation of
the court'[per DESAI, C.J. in Ranjit Ram v. S., A1961, A 456, 458; see
also S. v. Parameshwaran, A1952, T-C 482, 484 F.B.]. When therefore an
accused complies with the court's direction without raising any objection,
he shall be deemed to have done so voluntarily and not under any
compulsion."

This, however, doesnot meet the problem of acourt directing an uneducaed

accused ignorant of the law andhisright of refusal to writewords orfigures, for
then "compliance" with the direction of the court would not, in essence, be
voluntary in the fullest sense of the word. It is certainly desirable in this
situation for the court to inform the prisoner of his right of refusal under the
section and note this information on the caserecord to removeany doubt in case
of compliance.

220
 An additional problem in application of the section is that:-

"... a comparison of handwriting is at all times a modeof proof hazardous

and inconclusive, and especially when it is made by one not conversant
with the subject and without guidance as might be derived from the
arguments of counsel and the evidence of experts." RATANLAL, p.170
citing from Rarindra Kumar Choge v. Emperor, (1909) 37 Cal. 467.

Thus the comparison method of identification of handwriting should be avoided

if possible, especially since people can change their handwriting at will, and a
defendant who writes out words or figures in court could easily make alterations
inhis style which would make it difficult, if not impossible, to make an accurate
comparison.
In summary, handwriting may be identified by the following:-
1. The writer himself.
2. An expert witness.
3. A person acquainted with the handwriting of the person by whom the
document was supposedly written or signed, by -
a) having seen that person write,
b) having received documents purporting to have been written by that
person in answer to documents written.
- by himself, or ) and addressed to that person (s.50)
- under his authority)
c) or, when in the course of business, documents purporting to have
been written by that person have been habitually submitted to him, (s.50)
d) Comparison by a witness or the court of law.
- the document in question which contains a signature, and
221
 - a document which has been proved to the satisfaction of the
court to have been written by him or made by that person.(s.76)

(d) Instances when opinion evidence is admissible generally.

Some authors of treatises and textbooks n evidence classify opinion
evidence under the hearing of the admissibility of facts, holding that the
existence of an opinion may be a fact, and opinions may establish a fact;
see, for examle, NOKES, p. 160 et sec.

As a general rule, all oral evidence must be direct evidence, as defined in s.

63, i.e. evidence of the facts as the witness perceived them. It is the function of
the court to draw conclusions from the facts proved, and the opinion of the
witness as to the legal effect of these facts is of no egal consequence. Even the
conclusion of the court that the accused has been proved guilty "beyond
reasonabe doubt" is actually an opinion, as is a finding that the accused was
"proked", or that a defendant in a civil case was 2negligent".
Conseqently witnesses are not allowed to give their opinions on these matters, or
use these terms in giving their evidence. For example, a witness should not
express the opinion that the accused "stole" something, for whether he did in
fac "stal" the thing in question is adecision of law which the court must make
from facts admitted in evidence.

There are, however, options tothis general rule that a witness must not
express his opinion, th evidence of expert witnesses being but one. Other
instances are listed in ss. 50 - 54, infra. But in addition o these povisions there
are situations which are not set forth in the Act where lay, or non-expert
evidence of opinion is admissible where the "fact" related by the witness is
222
actually nothing more than a hidden opinion where no other form of evidence is
available to the court. Certain of these aredefined as "facts", for example "any
mental condition of which any person is conscious" noted in s.8(a) when an
expression of opinion by the witness which is drawn from the facts within his
observation. The underlying facts must be given in evidence to support the
opinion, and these facts observed are direct evidence as required by s.63, but the
witness who perceived these facts was in a far better position to draw the proper
conclusion the the court would even though it has the facts available in e
evidence.

In the circumstances where the opinion of a witness is admissible, the

questions arise:-
(a) whose opinion is concerned, and
(b) who is to give evidence of the opinion?

First, there is the opinion of an individual

as to a fact, evidence of which, when admissible, may usually be given only by
the person himself.

Second, there is the evidence of the opinion of a community, usually called

"reputation". This evidence is usually given by a single member of the
community, or, at best, a few members. It is definately hearsay, but is
admissible to establish or discredit credibility. (ss. 154 - 158), no support
pedigree (s.33)(f), to show the existence of public rights (s.33(d), and to support
evidence of character in civil cases (s.55) and in criminal cases where admissible
under ss. 56 - 57.

223
 Other instances where an opinion is admissible for the reason that there
isno better evidence available are identity, age, health, intoxication, insanity,
value and speed.

1. identity. This covers identity not only of persons, but of things, as a

witness may express the opinion that the goods recovered after a robbery were
the same goods which were taken during the robbery.

Evidence of identity is often is often the expression of an oinion that a person sen
at one time (in court) is the same persn as was seen at some other time (during
the crime). This opinion is admissible, whether the identification took pace
before the crime (perhaps the witness saw the accused on the street and alerted
the police, leading to his apprehension), at an identification parade, or at the
trial.

(a) Identification parades

From Roria v. R., [1967] E.A. 583, 584 (C.A.):-

"A conviction resting entirely on identity invariably causes a degree of

uneasiness, and has LORD GARDNER, L.C. said recently in the House of
Lords in the course of a debate on s.4 of the Criminal Appeal Act 1966 of the
United Kingdom which is designed to widen the power of the court to interfere
with verdicts.

224
 `There may be a case in which identity is in question, and if any innocent
people convicted today I should think that in nine cases out of ten - if
there aare as many as ten - it is a question of identity.'"

For these reasons, courts scrutinize evidence of identification of accused

persons with great care. One of the methods most commonly relied upon is the
identification parade, where the accused is placed with others and the witnesses
are invited to attempt an identification.

The procedure for identification parades is set forth in R. v. Xwango s/o

Manaa (1936), 3 E.A.C.A. 29, approved in Simoni Musoke v. R., [1968] E.A. 715
(C.A.)

INSTRUCTIONS FOR IDENTIFICATION PARADES

1. Theat the accused person is always informedthat hemay have a

solicitor or friend present when the parade takes place.

2. That the officer in charge of the case, although he may be present, does
not carry out the identification.

3. That the witnessesdo not see the accused before the parade.

4. That the accused is placed among at least eight persons, as far as

possible of similar age, height, general appearance and class of file as himself or
herself.

225
 5. That the accused is allowed to take any poisition he chooses, and that
he is allowed to change his position after each identifying witness has left, if he
so desires.

6. Care to be exercised that the witnesses are not allowed to communicate

with each other after they have been to the parade.

7. Exclude every person who has no business there.

8. Make a careful note after each witness leaves the parade, recording
whether the witness identifies or other circumstance.

9. If the witness desires to see the accused walk hear him speak, see him
with his hat on or off, see that this is done.
As a precautionary measure it is suggested the whole parade be asked to do this.

10. See that the witness touches the person he identifies.

11. At the termination of the parade or during the parade ask the accused if
he is satisfied thatthe parade is being conducted in a fair manner and make a
note of his reply.

12. In introducing the witness tell him that he will see a group of people who
may or may not contain the suspected person.
Do,t say "Pick out somebody", or influence him in any way whatsoever.

226
 13. Act with scrupulous fairness, otherwise the value of the identification as
evidence will depreciate considerably.

In Mwango's case only three men including the accused had actually
paraded, and the officer-in-charge asked the deceased "Amongst these three
men who assaulted you?", hardly a procedure calculated to ensure impartiality.
It is sangerous tosuggest to an identifying witness that the person to be identified
is believed to be present on the parade, as in R.v. Lulatikwa s/o Kabaile, (1941),
8 E.A.C.A. 46 where the officer conducting the parade told the identifying
witnbess "you know amancalled Lulatikwa whom you say kiled your uncle.
Come on to the verandah and see if you can find him."
The Court noted that some quite colouless expression should be used, such as "is
there anyonehere whom you recognize."?, and if the witness picks out anyone,
he can then be asked, "Who is this?".

It is not established practice to question a witness who hasmade an

identification at a parade as to his reasons for doing so.
Voluntary comment made by the witness is often received in evidence as part of
the act of identification, but answers to questions have less value and doubtful
admissibility. Simoni Musoke's case, supra.

In R. v. Marsuk Salim Msumbwa, (1951), 18 E.A.C.A. 257, the

identification witness had been hown some photographs by the police, after the
accused had been arested or after it had been decided to arrest him, and he
subsequently picked cut the aaccused at the parad.
The Court held that this method clearly often led against the proper procedure,
but the objection went to the weight of the evidence and not to its admissibility.
227
 The police officer who conducted the parade which was conducted in Idi
s/o Konde v. R., (1953), 20 E.A.C.A. 272, seemed

"...to have taken great pains to see that matters were properly conducted.
Four persons were asked if they could pick out the appellant from a line
ofeight men and between each parade the appelant was invited to change
his place in the line which he did. He was also allowed to change his
clothes between each parade. The Learned Judge (in the lower court) has
called these `elaborate precautions to avoid identification' and draw an
adverse inference therefrom .... as guidance .... we say at once that a Judge
should not draw any inference from the fact what asuspect of an
identification parade takes advantage of the ........... drawn up in order to
guard against identification by mistake. We go further and say this that a
completely innocent person may often be well advised to take advantage
of `such regulations. Anyone with experience of criminal investigations
knows that such parades do present dangers. Hence the need for strict
adherence to the regulations." (from pp.2723; emphasis added).

The weight to be given to identificaiton at a properly conducted parade is

greater than under other circumstances. As was said in Kipwenei Arap
Masenik and 20 Others v. R., (1930), 12 K.L.R. 153, 155:-

"An identification is a matter of opinion expressed by a witness and its

value depends on the circumstances under which it is given. When the
accused is away from the dock and placed amongst people similar in dress,
age and appearance it may be of the greatest signisficance. The opinion
228
 may be strengthened by reference to some particular or unusual feature
or article of dress. But where none of these exist and the circumstances
under which the opinion is expressed are againstthe accused then it may
be reduced to so slight a value as to be negligible."

See also R. v. Kariuki s/o Rushoshio and Another; (1948), 23 K.L.R.(1) 21, 23
where the Court cited Kipwenei's case, the test having been very severe, no less
than 112 men being on parade all dressed in precisely similar manner in prison
blankets draped from neck to feet. And in Simoni Musoke's case at p. 717 the
Court said:-

"We are not inclined to accept the view, in spite of certain criticisms
containedin a work by DOCTOR GRANVILLE WILIAMS by which the
Learned Judge was influenced, that the selection of an accused person
from a properly conducted parade, the other members ofwhich are
demonstrably unconnected with the matter in question, does not sensibly
strengthen the identification."

Failure to make identification at a parade is not necessaily fatal, as in

Karioki's case, where identification was not made at the parade, but only in
court, but the Court held that the evidence was, in the circumstances, sufficient
to establish beyond all reasonable doubt that the aaccused was one of the group
present at therelevant time and a participant in the crime.

The consideration relating to parades do not, of course, apply where the

accused refuses to take part in one, and for that reason he would have less

229
reason to complain that he was identified only in court; see Simoni Musoke's
case pp. 717-718

(b) Conviction on identification by single witness.

In Roria v. R., [1967] E.A. 583. 584 (C.A.) it was said:-

"That danger (i.e. of possible wrong identification) is, of couse, greater

when the only evidence against an accused person is identification by one
witness and although no one wold suggest that a conviction based on such
identification should never be upheld it is the duty of this court to satisfy
itself that in all circumstances it is safe to act of such identification. In
Abdala bin Wendo and Another v. R. (1953), 20 E.A.C.A. 166) this court
reversed the finding of the Trial Judge on a question of identification and
said this (... at p.168):

`Subject to certain well-known exceptions it is trite lawy that a fact may

be proved by the testimony of a singlewitness but this rule does not lessen
the need for testing with the greatest care the evidence of a single witness
respecting identification, especially when it is known that the conditions
favouring a correct identification were difficult. In such circumstances
what is neededis other evidence, whether it be circumstantial or direct,
pointing to guilt, from which a Judge or jury can reasonably conclude
that the evidence of identification, although based on the testimony of a
single witness, can safely be accepted as free from the possibility of
error.'"

230
For other authority that to convict an accused person, relying on to
identification of a single witness is dangerous, but a conviction so based cannot,
in law, be regarded as invalid, see Thairu s/o Muya and Others v. R., (1954), 21
E.A.C.A. 187, and R.v. Kabogo wa Nanguyu. (1948), 23 K.L.R.(1) 50, which
held that in such a case all the surrounding circumstances shouldpoint to the
inevitability that thepossibility of mistake can be excluded.

Under the circumstances, the Court should undoubtedly warn itself of

these dangers in appropriate cases in order that the case recordwill reflect
awareness of the dangers.

(c) The standard of proof where conviction rests on identification

In cases where the evieence alleged to implicate an accused is entirely of

kdentification, that evidence must be "absolutely watertight" to justify a
conviction; see R. v. Eria Sebwato, [1960] E.A. 174 (U). Not exactly legal
phraseology, but illustrative of the strictness with which convictions in these
cases will be reviewed.

(d) Former statements to show consistency of identification

Kella v. R., [1967] E.A. 809 (C.A.) contains observations as to the

desirability of giving in evidence former statements of witnesses to show
consistency under s.165 K.E.A. The Court, after quoting the section, refered to
the following passage in Shabani Bin Donaldi v. R., (1940) 7 E.A.E.A. 60:-

231
 "We desire to add that in cases like this, and indeed in almost every case
in which an immediate report has been made to the police by someone
who is subsequently called as a witness evidence of the details of such
report (save such portions of it as may be inadmissible as being hearsay or
the like) should always be given at the trial. Such evidence frequently
proves most valuable, sometimes as corroboration of the evidence of the
witness under s. 157 of the Evidence Act, and sometimes as showing that
what he now swears is an afterthought, or that he is now purporting to
identify a person whom he really did not recognize at the time, or an
article which is not really his at al."

The Court then noted that s.157 I.E.A. is similar to s.164 except that s.165 deals
with consistenc;y while under s. 157 E.E.A. the evidence was admitted as
corroboration. See discussion of s.164, infra. See also R. v. Mohamed bin Allai;
(1942), 9 E.A.C.A. 72, 73 where it was said:-

"This Court has previously pointed out, and we wish to repeat, that in
every case in which there is a question as to the identity of the accused, the
fact of there having been a description given and the terms of that
description are matters of the highest importance of which evidence ought
always to be given; first of all, of course, by the person or persons to
whom the description was given. It does not seem to be realized that by
Section 157 of the (I.E.A.) when a witness has given evidence of his having
given a certain descripion of an accused, the person to whom that
description was given may be called' `to corroborate the former
statement' (note that this would now be to show consistency) made by the
first mentioned witness. If the description is recorded at the time in an
232
 Occurence Book, Diary or in any other form of writing such book or
writing should be put in evidence, if admissible, under Section 35 of the
Evidence Act, or be used for the purpose of refreshing the witnesse's
memory under s.159. (now ss. 38 and 167 K.E.A.) In the absence of
evidence regarding any description of the burglar by the persons who
purported to identify him as the appelant eleven months later, that
identification loses much of its value."(emphasis added).

(e) Identification bearing on identity of co-accused.

In Mugo v. R., [1966] E.A. 124 (K), the appelants had been convicted on
five counts of robbery with violence comitted in quick succession at five petrol
stations in and around Nairobi.
A stolen Ford car was used on each occasion. Thier identities were established
at identification parades by witnesses who also misidentified innocent men. It
was argued for the appellantsthat these discrepancies made all the
identifications unreliable.
The Court held that the identifying witnesses could be relied on only in so far as
they identified a particular appellant with a particular count, and said:- (p.125)

"The fact that this witness picked out an innocent man at an identification
parade is as against the other appelants a point in favour of the defence to
some extent, but it does not go very far since a witness may be certain of
his identification of some members of a gang and less certain in his
identification of another member of the gang. These identications of the
appellants by the fourth witness are supported by the fact hat each of the
appellants was identified by at least one other witness as being concerned.
233
 in other robberies committed on the same evening and using the car
which was used in all the robberies. It is the common link with the car
which is of salient importance in this connection.

(f) Fingerprints

Fingerprints are a valuable method of establishing identity. Provision is

made in s.48 (1) for the admissibility of expert evidence of finger impressions.
The normal rules concerning qualification of the expert, presentation of facts
before opinion, etc., which apply to all expert testimony are applicaable; see p.
122 et seq. Section 76 (p.128) provides that the court may direc the taking of
fingerprints for purposes of comparison, but the limitations noted as aplicable
to directions to the accused also apply todirections for the taking of finger
impressions. The use of fingerprints as a mode of proof of previous convictions
is set forth in s.142 C.P.C.

For a case o;;istratomg tje ise pf fomger[romts om a cro,oma; case

omvp;vomg car tjeft. see Nazir Ahmed v. R., [1962] E.A. 345 (C.A.).

(g) Identification from footprints.

The only proper method of comparing footprintsis by means of casts; see

R. v. Maganga bin Isike, (1935), 2 E.A.C.A. 89. The Court there quoted from
WILLS' CIRCUMSTANTIAL EVIDENCE (6th Edition.)p. 220:-

"The proper method of comparison is to make the impressions of the

shoes by the side and at a sufficient distance from those in question.
234
 When the character of the soil and interval of time permitsuch a thing,
the most satisfactorymode of proof is to dig out and preserve the original
footprints; where that cannot be done cases in plaster of paris should be
taken. Where neither ofthese methods are adopted and the identification
is sought to be establishedmerely by the police evidence, juries are apt to
pay very little attention to it."

This case and quotation were referred to and approved in Mohamed s/o Rashidi
v. R., (1951), 18 E.A.C.A. 298, where the Copurt re-emphasized that the method
of placing shoes in footmarks was unsatisfactory becauseit obliterated any small
differences which might have existed, particularly where the footprint is in soft
earth.

(h) Corroboration of identity by police dogs.

In Abdallah bin Wendo and Another v. R., (1953), 20 E.A.C.A. 166, the
appellants appealed from a conviction for murder. There was evidence of
identity from only one witness (see p.133), and the Judge placed some reliance
on evidence relating to police dogs.
In the discussion of the admissibility and weight of this evidence, the Court said
at p.169:-

"We are fully conscious of the assistance which can be rendered by

trained police dogs in the tracking down and pursuit of fugitives, but this
is the first time we have come across an attempt to usethe ctions of adog to
supply corroboration of an identification of a suspect by (a human). We
do not wish it to be thought that we rule out absolutely evidence of this
235
 character as improper in all circumstancesbut wecertainly think that it
should be accompanied by the evidence of the person who trained the dog
and who can describe accurately the nature of the test employed. In the
instant case the dog master was not called and the evidence as to what the
dogs did and now they did it is most scanty."

AINLEY, C.J. came to the same conclusion of Omondi v. R., [1967]

E.a. 802 (K), where he sounded aanote of wrning (p.807) about what he called,
without undue levity, the "evidence of dogs":-

"It is evidence whichwe think should be admited with caution, and if

admitted should be treated with great care. Before the evidence
isadmitted the court should, we think, ask for evidence as to how the dog
has been trained and for evidence as to the dog's reliability. To say that a
dog has a thousand arrests to its credit is clearly, by itself, quite
unconvincing. Clear evidence that thedog had repeatedly and faultlessly
followed a scent over difficult country would be required, we think, to
render this kind of evidence admissible. But having received evidence
that the dog was, if wemight so describe it, a reasonably reliable tracking
machine, the court must never forget that even a pack of hounds can
change foxes and that this kind of evidence is quite obviously fallible."

2. AGE

"The strict way of proving the age of a person is either by the testimony of
someone, other than the person in question, who was present at the birth,
or by the production of a certificate of birth coupled with evidence of
236
 identity. Except in pedigree cases and in certain exceptional statutory
cases; of or other of these modes should in strictness be used; but in fact,
in many cases hearsay or opinion evidence is accepted without challenge.
Thus a witness often testifies to his own age, i.e., the date of his birth,
which is a matter upon which he cannot have any first hand knowledge,
or X testifies to the age of Y; if X was not present at the birth of Y, then
his evidence must be open in frmed on Y's appearance or character, or
hearsay or believe of what Y told X about his iwbage, See R. v. Cox
(.................), the opinion of witnesses as to the age of children not
beforethe court was received in a prosecution wilful neglect of children
under the age of sixteen and upheld by the court for Crown Cases
received. And ....evidence by X of a statement by Y as to his own age was
held admissible by the Court of criminal Appeal in R. v. Turner,"[1980]
s.346),. From PHIPSON, pp. 66 - 67.

In certain criminal cases age is of prime importance, for example in the

distincion between rape, where age doesnotmatter (s. 189 P.C.) and carnal
knowledge of a girl under the age of sixteen (s. 145 P.C.) as arose in Nakholi v.
R., [1967] E.A. 337 (C.A.). Here the appellant had been convicted of rape. The
complainant's age at the time of the incident was taken by the trial judge to be
about thirteen, but the Medical Officer's evidence was that her age ranged from
thrteen to sixteen. The Judge in his address to the assessors and in his judgment
stated that the question of consent or other rise of of the complainant was not
important as she was incapable at herage of giving consent. On opposit it was
held that lack of consent is an essential ingredient in the proof of rape, and
although a girl may be such tender years that mere proof of her age is sufficient
to establish lack of consent, this must be proved before convicting.
237
 Capital cases involve very serious questions of age determination wing to
the provisions of us, 14 and 25(s) P.C. R. v. Kampu, [1965] E.A. 548 (K) dealt
with the nature of the inquiry into age when the child is below the age of
criminal responsibility:- (p.549).

"The duty of the court and of the prosecuiton under sub-s (2) of s. 25 was
considered by the Court of Appeal in Mwangi Kamweru v. R. (1953), 20
E.A.C.A. 252, 253).....

`The first thing to note about this section is that the responsibility is
placed on the court and that it is a matter of opinion. In many cases the
youthfulnes of the person before his will be wo obvious to the trial judge
that he will need no evidence to assist him in coming to an opinion. There
may also be cases where the Judge, from his own observation, may be
ableto decide that the young person before him is manifestly over eighteen,
but these cases wil be more rare. Certainly it is the Judge's duty in any
case where he felsthe least doubt to call for evidence. We go further and
say that in clearly doubtful cases it is the duty of the prosecution to have
such evidence and not merely to await an application by the defence.'
(emphasis added).

Dealing further with the extent of the onus placedupon the prosecution
under the same subsection the Court o f Appeal in the same case said (ibid. at p.
254):

238
 `In our opinion it is an overstatementto say that an onus lies always on the
prosecution to prove beyond any reasonable doubt thata person
chargedwith an offence involving the capital penalty was over eighteen on
the date the offence was committed. To apply this literally, especially
where in these territories exact proof of age is a matter of extreme
difficulty, wouldbe to impose an intolerable burden on the Crown, not
warranted in our opinion by the wording of the section. As we have said
the section places the responsibility on the court and it is for the court to
be satisfied judicially in any case of doubt. If doubt remains in the mind
of the court then sentence of death cannot be lawfully passed.

Similarly in R. v. Mvula Irove (1944), 11 E.A.C.A. 112) where the only

relevant evidence of age was that of amedical practitioner who stated that `the
accused is about eighteen years of age. He is over seventeen' and where the
Learned Trial Judge in his report to the Court of Appeal said that the accused
from his appearance `might have been anything from seventeen to twenty', the
Court of Appeal, feeling a measure of doubt as to whether the accused was not
under eighteen years, held that the accused must have the benefit of that doubt.

The duty resting on the court and on the prosecution under sub-s. (1) of
s.14 is certainly no lighter than that under sub-s. (2) of s. 25 in view of the fact
that the issue raisedis not merely as to the appropriate punishment to be
imposed upon aconvicted person for a proven or admitted offence but is as to
whether the person accused beforethe court was legally capable at the relevant
time of being guilty of any offence whatever against the criminal law of this
country." (emphasis added).

239
The problem may arise for Magistrates, not only in criminal cases under s. 14,
but in civil cases where infancy is a defence. In these cases a stricter standard of
proof wil be required of the aeged infant thanthenormal balance of probabilities
will be required.
See Kamau's case, p. 550, and Sayed Hussein v. R., [1957] E.A. 844 (K) for
discussion of evaluation of age by scientific expert witnesses.

3. Health- a question of mixed fact and opinion, especially when one is

testifying as to his own health.

4. Intoxication - this is evidence based upon observation, is relevant and

admissible, and opinions may be given without scientific tests having been
conducted, by lay persons, including police officers. For a discussion of the
difficulties of proving intoxication in offences under s.44(1) of the Traffic Act
(Cap. 403), See A Note on the Law in Regard to Road Accidents, IV East
African Law Journal, (Nos. 1 and 2), pp.44, For the burden of proof in cases
where the defence of intoxication is raised under s. 13(2) P.C. and s.iii(2)(c), see
pp.39 - 40, supra.

5. Insanity. See p. 41 41, supra.

6. Value. The opinion of an ordinary witness is admissible on the

question of value, as is that of an expert witness.

7. Speed.

240
 Opinions concerning speed areadmissible in casesinvolving road traffic
accidents and offences. These opinions are highly unreliable, especially if the
witness tries to state the speed in miles per hour, and the court should restict the
expression of the opinion to terms such as "fast", "slow", etc., in relation to
speed limits and the conditions of the road. See, for example, Daya v. R., [1964]
E.A. 529 (T) where the Court said:-

"If the Learned Magistrate had made a finding that on the prosecution
evidence he was satisfied beyond reasonable doubt that the appellant's conduct
constituted driving without due care andattention, the result of this appeal
might have been diffierent, but his finding of fact is concerned only with the
question of speed. He said:

`I find as fact that accused was travelling at an unusual speed and that it
was his speed that caused the triple accident and I hold that this constitutes
careless driving on the part of the accused.'

That can, it appears to me, mean only that the accidents were due to what
the court calls `the appellant's unusual speed' and that speed, whatever it
was, constituted careless driving.
The evidence of `unusual speed' was thatof the cyclist only, and was no
more than opinion evidence of a quite unsatisfacotry sort. The appellant
and approached him from behind and the only reason why he had
thought the speed `fast' was that the appellant was unable to control the
vehicle after having hit him.

241
 Now it is clear that in such circumstances a driver's failure to control a
vehicle after a collision may aford little evidence of his speed before it. It is to be
noted that the driver of the other car, which was facing the appellant's car, gave
no opinion about the appellant's speed at all. In Milburn v. R. (1954) 2 T.L.R.
(R) 27), it was held that a court cannot convict a person of careless driving when
the finding f carelessdriving is based soey on opinion evidenceabout his speed,
andisof the sort tendered here, where the opinion was arrived at on quite
insufficient data and by a faulty process of reasoning."

Note that s.43(3) of the Traffic Act (Cap. 403) provides that a persn charged
with the offence of speeding is:-

not ... liable to be convicted solely on the evidence of one witness to the
effect that in the opinion of the witness to the person charged was driving
the vehicle at such greater speed" (that the speed limit).

(e) Opinions relating to customs and rights.

51.(1) When the court has to form an opinion as to the existence of any
general custom or right, the opinions as to the existence of such custom or right
of persons who would be likely to know of its existence are admissible.
(2) For the purposes of subsection (1) of this section the expression
"general custom or right" includes customs or rights common to any
considerable class of persons.
This section is covered in the Chapter on Determination of Customary
Law, infra.

(f) Opinions of persons with special knowledge.

242
 52. When the court has to form an opinion as to -
(a) The usages and tenets of anmy association, body of men or family; or
(b) The Constitution and government of any religious or charitable
foundation; or
(c) The meaning of words or terms used in particular districts or by
particular classes of people, te opinions of persons having special means of
knowledge thereon are admissible.
..............

"Usage" is a fact, while "custom" is a law; thus therecan be usage without

custom, bu there cannot be custom wihtout usage.

A usage must be established, i.e. it must be known, certain, uniform,

reasonable and not contrary to law. The term includes what people are in the
habit of doing at a particular place, and it may be that the usage is one which
hasbeen followed for a long period of time, or one just recently established.

Usages are commonly found in the fields of agriculture and tade. The
recent case of C.A. Harifal & Co. v. Standard Bank Ltd., [1967] E.a. 512 (C.A.)
had cause to consider whether abank could, by trade usage, charge compound
interest on an overdrawnmercantile account.
NEWBOLD, P. considered the law in relation to trade usage in East Africa at
pp. 516 - 517:-

"A trade usage may be described as a particular course of dealing

between parties who are in a business relationship, which course of
dealing is so generally known to all persons who normally enter into that
243
relationship that they must be presumed to have intended to adopt that
courseof dealing and to have incorporated it into their contractual
relationship unless by agreement it isexpressly or impliedly exoluded.
Before acourse of dealing can acquire the character of a trade usage it
must, first, be so well-known to the persons who would be affected by it
that anysuch persn when entering into a contract of a nature affected by
the usage must be taken to have intended to be bound by it; secondly, be
certain in the sense that the position of each of the parties affected by it is
capable of ascertainment and does not depend on the whim of the other
party; thirdly be reasonable, that is, that the course of dealing issuch that
reasonable men would adopt it in the circumstances of the case; and,
finally, be such as is not contrary to legislation or to some fundamental
principle of law.
A trade usage may be proved by calling witnesses,whose evidence must be
clear, convincing and consistent, that the usage exists asa fact and is well-
known and has been acted on generally by persons affected by it. A usage
is not proved merely by the evidence of persons who benefit from it
unsupported by other evidence. Where a particular usage has acquired
sufficient general or local notoriety judicial notice may be taken of it
under s. 60 of the Evidence Act. Where a trade usage is proved to exist
then, unless expressly or impliedly excluded, it is presumed to have been
incorporated into the contract between the parties and this is so even
though one of the parties may in fact be unaware of the usage so long as
the cirumstances are such that he ought to have ben aware of it."

244
 "Tenet" is a word which includes the principles, dogmas or doctrines of a
body of men, which is held or maintained by them as being the truth. The term
when applied to a family is the same.

Tenets arefound in religion, politics (the beliefs, principles and doctrines

of, for example, KANU), science, etc., whether within or without a family.

To have special means of knowledge does not mean that the witness is
reqyuired to be in a particular business, or a member of the particular
organization referred to. What is required is that the witness has had
opportunities for acquiring knowledge of a usage, tenet, etc., and that he has in
fact acquired the knowledge.

An example of "meanings or words or terms used in particular districts

or by particular classes of people" is found in the East African Standard, 26
October, 1967 (p. 7, column 6) where the term "nig-nog" arosein a case alleging
defamation of character.
Witnesses pointed out that the phrase had been used frequently by policemen,
people did no take offence, and

"the first plaintiff had said that Mr. King had called him and others a
`nig-nog'. There was ample evidence to show that Mr. King had been in
the habit of employing the term. Mr. King had said it was a phrase used
in the services to describe untrained persons."

245
 Note that the witnessis subject to cross-examination if the opposing party
wishestoprove that he opinion is false, the usageis not applicable to him, or to
the particular transaction in question.

(g) Opinion on relationship

53. When the court has toform an opinion as to the relationship of one
person to another, the opinion, expressed by conudct, as to the existence of such
relationship of any persn who, as a member of the family or otherwise, has
special means of knowledge on the subject, is admissible:
Provided that such an opinion shall not be sufficient to prove a marriage
in a prosecution for bigamy or in proceedings for damages against an adulterer.

.............

Examples:-

The question is whether A and B were married. the fact that they were
usually received and treated by their friends ashusband and wife, is relevant
and admissible.

The question is whether A was the legitimate son of B. The fact that A
was alwaystreated as such by members of the family is relevant and admissible.

Note that the witness here gives evidence of facts, i.e. the conduct of the
third persons, and it is the opinion of these third persons as expressed by their
conductwhich is admissible. This may be seen from the examples.

246
 In Pazi v. Mohamed, [1968] E.A. 111 (T) the inheritance of a deceased's
estate under the law of the Shafi sect of Islam depended on whether the
deceased widow was awfully married to the appellant.
There was evidence that the parties had cohabited as husband and wife for
several decades and the only points in issue were whether such cohabitation
raised a presumption as to the existence of a valid marriage and, if so, whether
any evidence had been led to rebut such a presumption. The Court held that
s.50 I.E.A. provides that evidence of continual cohabitation as husband and wife
is admissible to raise the presumption. Note thatthis is not one of the cases
mentioned in the proviso to s.53.

The person who "gives evidence" by conduct must have special means of
knowledge, and is nt or may not be before the court and subject to cross-
examination, as evidence of his conduct is related to the court by the witness.
Once the conduct is admitted in evidence, the court examines the question
whether the conduct is based upon the opinion held by that third person. Note
that he need not neccesarily be amember of the family.

The term "relationship" is not limited to husband and wife, but covers all
kinds of relationship.

If the legislation proposed in the Report of the commission on the Law of

Marriage and Divorce is enacted, the proviso to the seciton will be deleted and
anacted in expanded form, and will read:-

Provided that such an opinion shall not be sufficientto prove a marriage

in a prosecution for bigamy, adultery or enticement or in any civil
247
proceedingsfor damages for adultery or enticementor in any matrimonial
proceedings.

An opinion must be founded on good reasons which are supported by

facts, otherwise it is worthless in evidence. Therefore where the law of evidence
allows
a witness to state an opinion, the witness is also allowed to state the facts upon
which the opinion is based; indeed this is a prerequisite, as has been noted.

54. Whenever the opinion of any living person is admissible, the grounds
on which such opinion is based are also admissible.

................

Note that there may be admissible opinions expressed by persons who

cannot be called as witnesses, which may be admitted without the grounds for
the opinion being given, see Chapter on Hearsay, infra.

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 CONFESSIONS

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

Section 17 an admission is a statement oral or written which suggests any

inference as to a fact in issue or relevant fact and which is made by any of the
parties. Provisions of S. 17 there are two kinds

Formal admissions are usually made in the pleadings, a party to a breached

contract claim can admit blame and that will be a formal admission.

Informal admissions may be made before or during proceedings, you cannot have a
formal admission without anticipation of a particular matter but informal are made
before or during the proceedings. Informal admissions could be confessions.

A confession then is an admission by words or conduct or by a combination of

both from which an inference can reasonably be drawn that the maker has
committed an offence.
What is the relationship between admission and confessions?

The relationship is that admissions is the broader category of statements oral or

written. Confessions operate only in criminal while admissions are in both civil
and criminal

Evidence Act defines confessions in two ways: -

249
It is a statement or an aadmission made by a person at any time when charged with
a crime stating or admitting an inference that he/she committed the crime.

Swami V. King Emperor Page 22 Course outline 7th

This case contains the first ever definition of confession

Lord Atkin stated the following:
“No statement that contains that contains self exculpatory matter can amount to a
confession, if the exculpatory statement is of some fact which if true would
negative the offence alleged to be confessed.” Lord Atkin is saying that a
confession must admit the offence in its terms or substantially all the facts which
constitute the offence. (culpa has to do with guilt and exculpatory is removing one
from guilt whereas inculpatory will be what would be incriminating)

in our Evidence Act Section 25 defines confessions “a confession comprises words

or conduct, or a combination of words and conduct, from which, whether taken
alone or in conjunction with…

Section 32 (2)

Section 25 deals with confessions made by an accused about his own involvement
in the offence whereas 32 is confessions made by an accused person touching not
only on his own involvement but on the involvement of others. The requirement at
32(2) are more stringent, since in 25 confessions is said to comprise words or
conduct… the operative words are “the person making it has committed the
offence” 32(2) includes the commission of the offence and also facts constituting

250
Under 25 definition of confession includes both an express admission of an offence
as well as admission of incriminating facts, there is express and implied. The
words “whether taken alone or …

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

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

Commissioner of Customs & Excise V. Herz

In this case, while in the course of investigating a suspect fraudulent failure by a

company to pay tax, customs officers subjected Hertz to interrogation lasting 3
hours. During the 3 hours, Hertz made incriminating admissions. The power to
interrogated was derived from a statute under which both Hertz and his attorney
were made to believe that failure to answer questions Hertz could be prosecuted.
For the belief that prosecution would have ensued if he did not answer all
questions, Herz would not have answered all the questions. Herzt was
subsequently charged with conspiracy to cheat and defraud the customs of tax and
the prosecution sought to tender evicence of his oral admission. Hertz was
convicted and he Appealed and on appeal it was held that the admissions were
inadmissible because firstly the relevant statutes did not confer power to subject a
trader to prolonged interrogation. Secondly the admissions were made under threat
of prosecution and were therefore not voluntary.

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The Evidence Act lays out what kinds of confessions will be admissible

Section 26 a confession is not admissible if its admission appears … which has

reference against an accused person, such inducement threat or promise emanating
from a person in Authority or coming from a c

In Section 26 certain words are critical in the definition “if it appears to the court”
‘the proceeding from a person in authority. “supposing that by making it he…”

“if it appears’ – it is clear that this does not amount to proof of the matter. The
accused does not have to proof beyond reasonable doubt. He only needs to make it
apparent to the court enough to raise doubt as to the voluntary of the statement.
This is in favour of the accused person.

‘threaten, induce or promise be of a temporal nature, it should not be of a spiritual

nature. The inducement threat or promise should relate to the charge of the accused
person. It has to come from a person in authority and this is anyone whom the
prisoner or the accused might think capable of influencing the prosecutor.

Muriuki V. R

A person in authority as one who has or appears to have power to influence a

decision.

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Drokinan V. R Page 21 course outline

In this case the Appellant was charged with murdering his co-worker and
appropriating money which had been entrusted to him by his employer to buy
timber. He confessed to a friend and the friend reported him to the police. He was
not suspicious when he saw his friend in the cell and repeated the confession to the
friend. This confession was produced in evidence. The defence objected to this
confession as it was induced. The court held that the evidence was admissible
since it did not emanate from a person in authority and therefore the confession
was admissible.

Inducement must be sufficient to make the accused hope for some advantage or
fear some prejudice. Take into account a person’s experience and age, what they
are exposed to and whether there has been a time lapse between inducement and
confession.

Section 27

It is a question of fact when you say that the impression has been removed.

Kaluma V. R

In this case the accused persons committed an offence in Uganda and fled to
Kenya. Police Officers sent to arrest them intended to induce them with beautiful
girls but the accused got wind of this and they dated the girls and murdered them
and threw them in Athi River and they fled back to Uganda. They were
253
apprehended in Uganda and after interrogation they confessed the murders. When
brought to stand trial for the murders, the Kenya investigators realised that the
confessions might not be admitted as they had been procured by torturing the
accused. The prosecution cautioned and warned the accused to forget what they
had said in Uganda and warned them that what they said could be held against
them.

The accused adopted the statements that they had made in Uganda and the question
was whether the statements made in Kenya adopting the Uganda ones were
admissible. The court held that they were admissible as the threats in Uganda had
ceased to operate by the time they made the confessions in Kenya and the defining
circumstances for removing the threat of inducement had passed.

he
Section 27 If a statement is made at a point where

Once a confessional statement is produced and a question of voluntariness is raised,

the burden is on the prosecution to prove the voluntariness. The accuse need only
raise doubt about the voluntariness.

Onyango Otonito V. R

The Appellant was convicted of house breaking and theft; the conviction was
based on a confession obtained in curious circumstances which were as follows

The accused was arrested and placed in police custody, he was removed from the
cell taken to court and charged with two offences. He was cautioned and after the
254
caution he made an exculpatory statement to a Police Inspector. He was then
returned to the cells where he stayed overnight and the following day, an assistant
inspector interviewed him and he admitted breaking into the house. On the same
day he was charged with the two offences again and cautioned. He proceeded to
make an incriminating statement to the chief inspector. At the trial, the Appellant
alleged that the Police Inspector tortured him and it was as a consequence of the
torture that he made the incriminating statement. The trial magistrate had
overlooked these allegations for torture and this was an appeal against conviction.

The court of appeal held that the magistrate should have addressed himself to the
issue of the voluntariness of the statement. He ought to have asked the appellant
whether he admitted that the statement was voluntary. If the Appellant denied the
voluntariness of the statement, a trial within a trial ought to have been held and this
would have established the voluntariness of the statement or otherwise.

Section 26 - words used are if it appears.

Njuguna S/O Kimani and others V. R

In this case, the Appellant were convicted of murder. There was practically no
evidence against them except 4 inculpatory statements amounting to confessions
made to a police officer in May 1954. The accused had been taken to police
custody on 15th March 1954 and remained in custody until June of that year. There
was no suspicion of their being involved of the murder in issue whilst in custody
they became suspects of being involved in the murder under consideration and it
was at this point that they made the 4 statements after they were caution. The
caution went like this “I have received information that you are alleged to be
255
connected with the offence I am inquiring into. Do you wish to say anything
followed by the usual words “anything you say might be used in evidence’ the
statement did not disclose the offence and the question was whether these
statement were admissible against the accused persons and the court held that
1. It is the duty of the court to examine with the closest care and attention
all the circumstances in which a confession has been obtained from an
accused especially when the accused has been in custody for a long time.
2. The onus is upon the prosecution to prove affirmatively that a confession
has been voluntarily made and not obtained by improper or unlawful
questioning. The prosecution also has to prove that any inducement to
make the confession had ceased to operate on the mind of the maker at
the time of the making.

The case of Njuguna is an authority for the that its is incumbent to the prosecution
to prove the voluntariness of a confession if any doubt is alleged.

ARE VOLUNTARY CONFESSIONS ALWAYS ADMISSIBLE?

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

conform to technical rules established in Section 28 and 29.

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

256
Section 29 – this deals with statements or confessions taken by police officers by
persons who are not in police custody.
Criminal Law Amendment Bill seeks to amend Section 28. right now the law is
that there is a distinction of confessions made by people in police custody and
those not in police custody. There have been arguments against the wide powers
given to the police in taking confessions. This comes in the backdrop of what was
the position in the Indian Evidence Act, confessions made to police officer of
whatever rank were not admissible and the issue of have confessions made to
police officer of whatever ranks is an offshoot of the emergency period and had
been brought in for expediency.

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

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

Masola bin Msembe

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

257
The question of rank is seen as important, the fact that you have delineation
suggests that rank is important.

Kenyarithi s/o Mwangi V. R

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

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

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

Section 28 – confessions made in police custody are only admissible if made in

from of a police officer of the rank of sub inspector or magistrate and the question
is it relevant to whom the confession is addressed what is important is in the
presence of whom.

Ngumba & Others V. R

This case is to the effect that if the statement is made to any other person, it is
inadmissible unless the magistrate or the police officer of the requisite rank is
present.

258
Rashidi s/o Sadala V. R (1950) 17 E.A.CA. 24

Accused made a confession to a fellow prisoner in remand and it was in the

presence of the governor of the remand prison. The question was whether that
confession would be admissible. It was held that it was admissible because even
though the governor was not technically speaking a police officer, he could
actually fall within the broader definition of who a police officer is.

R V. Shamsuddin Kassim (1944) 11 E.A.C.A. 90

Which is to the effect that if a person has duties assigned to them which are akin to
those of a police officer, that in itself does not make them a police officer qualified
to take the statement.

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

Joseph Ndung’u Kimani V R (

Ishmael Kanyari V. R

Immediate presence of a police officer

WHAT IS POLICE CUSTODY?

Is it jail? Cells?

259
The interpretation is that police custody does not refer to cells alone or to situations
where a person is under arrest. It means any state of affairs when one comes into
contact with the police and cannot depart at will. You don’t have to have been
placed under arrest it could be a situation where a police officer has summoned
you and you could not depart where they could prevent you from leaving.

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

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

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

1. When a police officer seeks to discover the author of a crime he may put
to any person any question pertaining to such crime; whether such a
person is a suspect or not; this is giving the police officer a wide net and
they are mandated to put any question to any person in custody or not.
2. When a police officer decides to charge a person with a crime, he should
caution that person before putting any questions to them.
3. Persons in custody should not be questioned without a caution being
administered
4. If a prisoner wishes to volunteer any statement, the usual caution should
be administered with the last words of caution being be given in evidence.
260
 5. ‘Do you wish to say anything in answer to the charge?’ You are not
obliged to say anything in answer to the charge unless you wish to do so
but whatever you say will be taken down in writing and may be given in
evidence. (care should be taken to avoid any suggestions that a person’s
answers can only be used in evidence against a person coz it can [prevent
people from making statements.
6. Where a prisoner gives evidence before the administration of a caution.
Such statement is not rendered inadmissible merely because of the lack
of caution but in such a case, a caution should be administered as soon as
possible.
7. A prisoner making a voluntary statement must not be cross examined.
No question should be put to the prisoner about the statement except for
the purpose of removing ambiguity about what he said.
8. When two or more persons are charged with the same offence and their
statements are taken separately, the police should not read these
statements to the other persons charged. But each of such persons should
be given by the police a copy of such statements. Nothing should be said
or done by the police to invite a reply. If the person charged wishes to
make a statement in reply, the usual caution should be administered.
9. Any statement made in accordance with Judges rules should whenever
possible be taken down in writing and signed by the person making it
after it has been read to him and he has been invited to make any
corrections he may wish.

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

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

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

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

R V. Boisin (1918) 1 KB

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

RETRACTED AND REPUDIATED CONFESSIONS

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

Tuwa Moi V. Uganda

This case distinguishes retracted confessions from repudiated ones.

262
At page 84 a retracted confession occurs when the accused person admits that he
made the statement recorded but now seeks to recant, to take back what he said
generally on the ground that he had been forced or induced to make the statement.
In other words that the statement was not a voluntary one. On the other hand, a
repudiated statement is one which the accused person avers he never made. the
judges in that case proceeded to say that in terms of effect, there is not really much
difference between a repudiated confession and a retracted confession because the
implication are the same that is that such statements should be treated with caution
and should not be the basis of a conviction unless it has been corroborated in some
material particular.

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

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

Steven Muriungi & Others V. R

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

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IN WHAT LANGUAGE SHOULD A CONFESSION BE RECORDED

An accused person should be allowed to make a confession in a language of his

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

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

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

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

Section 30 of Evidence Act

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

264
Nayinda S/O Batungwa V. R (1959) E.L.R 288

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

Section 31:

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

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

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

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

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

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In the Mwangi Case the court of Appeal was of the view that even under Section
31 Judges have a discretion to exclude evidence leading to a discovery if they think
it is necessary to avoid abuse of the legal provisions. The facts were as follows
The accused was surprised in an ambush by two Homeguards, he shot one of them
dead while the other one escaped unhurt. The accused was seeing stooping as if to
hide something and he then came to the other guard to surrender. Asked to show
where he had hidden the gun or risk being shot, the guard following him closely
with a rifle ready to shoot, the accused stated “ Come, I will show you where I hid
the gun.” The gun was discovered. The Judges were of the view that much as the
statement could be technically admitted under section 31, they had a discretion to
exclude it as it had been procured at the threat of death and therefore misuse of the
law.

Kenyarithi s/o Mwangi V. R

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

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

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

Courts exercise a lot of caution in admitting statements especially where they are
dealing with accomplice statements. While under S. 141 accomplice evidence is

266
admissible and can found the basis of a conviction, courts have as a matter of
practice required corroboration for accomplice evidence.

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

CONFESSION(S)
267
a. What is a confession?

The K.E.A. by virtue of s. 25, changed the definition of “confession”

from that normally applied in East Africa, although the definition was
retained in s. 32 for purposes of confessions implicating co-accused. As it
now reads, the definition presents considerable difficulty in interpretation and
application, and the almost total absence of reported cases on the subject in
the years since the enactment of the K.E.A. is, iv submitted, indicative of the
hesitation of the courts, and also of counsel, to become too deeply involved in
this legal thicket. This section, therefore, can only present such guidelines as
have been laid down to date and suggests an approach to solution of the
problems presented which may be of value to magistrates.

(*) For a complete exposition of the subject including historical analysis, see
Durand, Confessions in East Africa, IV East African law Journal 70 (para 3).
This Chapter limits itself to Kenya law only.

An originally put forth in the Evidence Bill (Kenya Gazette supp.. No 16

(Bills No. 6), 12th March 1963), the definition of a confession was to read:-

“A confession is a statement which admits in terms either an

offence or substantially all the facts which consitute an offence”.

This section was, however, changed before enactment, so that the definition,
as found in s. 25, not reads

268
 25. A confession comprises 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.
*.*.*.*

In essence, then, a confession is an admission”, by words or by conduct,

or by a combination of words and conduct from which an inference can
reasonable be drawn that the maker (or door) has committed an offence; this
either from the words or conduct taken alone, or taken in conjunction with
other facts proved in court. It is the scope of the definition as it now reads
which presents the difficulty in deciding whether , for example, a statement is
a confession, and whether therefore all the rules governing confessions are
applicable.

Formerly, under the definition in Pakala Narayana Swami v Emperor

( 1939) A.E.R ( se) 47, 52, 1 All E. R. 397, 405, an admission of a gravely
incriminating fact could not, of itself be a confession, for as the Judicial
Committee said:

“Moreover, a confession must either admit in terms the offence, or at any rate
substantially all the facts which constitute the offence. An admission of a
gravely incriminating fact even a conclusively incriminating fact is not of itself
a confession, e.g an admission that the accused is the owner of and was in
recent possession of the knife or revolver which caused a death with no
explanation of any other man’s possession.”

269
Even in England, however, this distinction between admissions and
confessions as defined in Swami’s case appears to be in the process of being
eliminated, for as the court in the recent case of Commissioners of Customs
and Excise v Harz and Another, (1967) A. C. 700 (House of Lords) said at pp.
817 - 818:-

“Then it was argued that there is a difference between confessions

and admission which fall short of a full confession. A difference
of that kind appears to e recognized in some other countries. In
India and Ceylon legislative enactment’s severely limit the
admissibility of confessions, and the courts construed these
enactment’s as not preventing the admission evidence of other
incriminating statement obtained by fair means though not in the
manner required for confessions. ... I can see no justification
principle for the distinction. In similar circumstances one man
induced by the same threat makes one or more incriminating
admissions. Unless the law is to be reduced to a merely collection
of unrelated rules, I see no distinction between the cases.”

Under the definition in s. 25, an admission of a gravely incriminating fact,

taken alone or in conjunction with other facts proved, which from which an
inference may reasonably be drawn that the maker has committed an offence,
is clearly a confession.

1. Exculpatory matter

270
Exculpatory matter in a confession is matter which is adapted or intended to
free the maker from blame for the act admitted i.e. matter negativing the
offence alleged to have been confessed. For example, and accused makes the
following statements:-

“I admit that I killed the woman, but at the time I was so drunk
that I did not know what I was doing”

The assertion that the accused was drunk at the time so as not to know what
he was doing is exculpatory, or self exculpatory as the expression of times
appears, i.e. intended to free the accused from blame.

Under the definition is Swami’s case, which still applies under s. 32, the
inclusion of self exculpatory matter in a statement caused it to fall outside the
scope of the definition of a confession. If, however, the exculpatory matter did
not actually negative the offence charged the statement could still be a
confession; see Gopa s/o Gidamubanya and others v R. (1953), 20 E.A.C.A 318,
320, quoting from SARKAR (9th Edn) p. 199. The importance of determining
whether the exculpatory matter actually negatived the offence depended in
turn on the (then) important distinction between an admission and a
confession in a criminal case, for as was said in an America case quoted by
SARKAR in Gopa’s case:-

“ The distinction between a confession and an admission, as

applied to criminal law, is not a technical refinement but based
upon the substantive differences of the character of the evidence
deduced from each. A confession is a direct acknowledgement of
271
 guilt on the part of the accused and by the very force of the
definition, excludes an admission, which of itself, as applied in
criminal law, is a statement by the accused, direct or implied, of
facts pertinent to the issue, and tending in connection with proof
of other facts to prove his guilt, but of itself is insufficient to
authorize a conviction.”

The problem arises in connection with the definition in s. 25 whether or not

inclusion of the inculpatory matter in a statement, which may amount only to
the admission of a gravely incriminating fact, will result in the statement not
being classed as a confession. In the definition in Swami’s case the statement
came first, and the next sentence commenced with the word “moreover”, so
that grammatically it could be classed as a separate rule:

“... no statement that contains self exculpatory matter

can amount to a confession, if the exculpatory statement is of
some fact which, if true would negative the offence alleged to
be confessed. Moreover,....”

But now that the definition has changed, does the rule still apply? For
example, in Swami’s case, the statement:-

“I admit that I am the owner of and was in recent possession of

the gun which caused the death”

272
With no explanation of any other man’s possession, would not be a confession
i.e. in conjunction with other facts proved. But the statement would be a
confession under s. 25.

Similarly, the state:-

“I admit that I killed the woman, but at the time I was so drunk
that I did not know what I was doing.”

Under Swami’s case would not been confession because of the inclusion of self
exculpatory material negativing the offence (because of the defence of
intoxication). But what of this statement:-

“I admit that I am the owner of and was in recent possession of the revolver
which caused the death, but I have been very sick and do not know what I
have been doing for several days.”

The admission of ownership and presumption without explanation of another

possession, taken in conjunction with other facts proved, could constitute a
confession under s. 25, but the second part of the statement by inference raises
the defence of insanity; i.e it contains self exculpatory material negativing the
offence. Is the statement, taken as a whole, a confession under the definition
in s. 25 There have been no reported or unreported decisions since
enactment’s of the K.E.A which give an indication as to the answer.

2. Admission and self serving statements: a distinction.

273
 The wording of s. 25 also raises the problem as to whether an untrue
statement which is proved to be false can amount to a confession. The
difficulties were examined by MADAN J. in Mwangi Waweru v R., (Kenya H.
C Cr. Appl. 1068/1988; unreported, but to be reported in the East Africa Law
Reports where there was an admission of ownership of a stolen bicycle made
to a Police sergeant. At the trial the Sergeant’s statement was:

“At Kigoro Market I saw five bicycles on a bus. The accused said
that two of the bicycles belonged to him and that three he had
bought with another man and was going to sell them.”

One of the bicycles had been stolen, and the lower court found that the
statement of the accused to the sergeant was untrue. The issue was whether
the statement amounted to a confession under s. 25 seems to be inadmissible
by virtue of s. 29. The Court said:-

”It is really quite obvious that the appellant was seeking to put the
police off the scene by what he said to the Sergeant, and that the
protection were not relying upon what the appellant said as proof
of the fact asserted. ... They relied on his words as part of a
pattern of behaviors indicating that the appellant was in control
of these bicycles, and section 25 apart, what the appellant said
was no more a confession than any other self serving lie which a
thief chooses to tell the police. It now remains to consider
whether the provisions of section 25 and the other provisions of
the Evidence Act which deal with confessions are to this effect
that, for example the statement ‘I did not steal this bicycle. It is
274
 mine. I bought it years before you say it was stolen’ is a
confession because the admission of possession contained therein
added to proof that the bicycle was stolen from X the day before
makes a case of possession of recently stolen property. It is
possible, we think for a determined person to make nonsense of
that kind of the provisions of section 25 of the Evidence Act, but
this court will construe wherever possible against absurdity, and
it appears to us that good sense can be made of the section and a
salutary meaning attributed to its provisions.
.... Section 25 certainly does give a very wide definition of
‘confession’ indeed but the definintioni n our opinion is not so
wide as to include the statement of a man’s defence a statement
which if true will lead him to conviction on the slightest inference
of guile but to acquittal”. (emphasis added).”

Based upon the above language, it is possible to draw a clear distinction

between those statements which are admissions of gravely incriminating facts
and these which do not fall within the definition and are not, therefore,
subject to the exclusionary rules governing confessions. These would be:-

(a) positive declarations of incriminating facts, or affirmative

admissions, i.e “I did”.. ‘I went ..’ “ I own..” etc. positive declarations in which
incriminating facts are admitted from which, when taken alone or in
conjunction with other facts proved, an inference may reasonably be drawn
that the person making the statement has committed in offence.

275
 (b) negative declarations of incriminating facts: affirmative admissions
or denials in predicated upon a or failure to do something; e.g an admission
instances when the offence is, direct implied that something was not done,
raising the inference that the person making the statement has committed an
offfence under such sections as s. 219 (Duty of persons in charge of dangerous
things) or s. 131 ( Disobedience of lawful orders),, Kenya Penal code.

These two categories of admissions are clearly distinguishable from

those statements referred to by MADAN J. in the judgment above - either self
serving statements referred to by MADAN J. in the judgment above either self
serving statements or lies by an accused used to put the police off the scene, or
self serving statements of defence in which for example, the identification of
an item alleged to have been stolen is questioned. It is possible for the court to
examine a statement tendered by the prosecution and challenged by the
defence to see whether it falls under one of the two categories above, or was
clearly self serving, and therefore not under the definition.

3. Procedural difficulties under s. 25

Procedural difficulties were also noted by MADAN J. in Mwangi

Waweru’s case:

“ We pause at this stage to note the difficulties which would

fact a trial court if statements such as the one made in this case, ....
were to be regarded as confessions and as inadmissible if made to
lowly ranked policemen. Let us suppose that the courts can in all
276
 cases obviet the difficulty of knowing what ‘either facts’ will be
proved until the very end of the prosecution by insisting that no
statements which may possibly fall within the definition are given
in evidence until the end of the prosecution case. Even then to
exclude the statement ‘This is my bicycle (or cow, or sheep, or
watch or whatever it may be)’ made to a police constable on the
grounds that the statement added to the evidence that the thing in
question is not the accused’s property, but has been recently
stolen, bases a case of recent possession, would be in many cases to
deprive the defence of the fair and cogent argument of
consistency, for it will frequently happen that the defence is a
challenge of the complainant’s identification of the property. If
the court excludes the statement and convicts a ground of appeal
may well be that matter favourable to the accused has been
rejected. If the statement is admitted and the court convicts a
ground of appeal will no doubt be that the court has admitted an
inadmissible confession. But we do not think that the legislature
has placed the courts in difficulties of that kind...” (followed by
the conclusion that the definition does not include a statement of a
man’s defence, as above in sub para (2).

The elimination the difficulties which would raised by the admission of a self
serving statement in the definition of a confession, the problem of how to
handle the words “in conjunction with the facts proved” will cause difficulties.
If the court is sitting with out the aid of assessors, as is the case in
Magistrate’s courts it is aware of the difficulties arising from the order of
presentation of the evidence, it could either direct the prosecution to ...........
277
tendering of the evidence until the end of the prosecution ........ when the
“other facts” will have been proved, or admit the ........... provisionally, taking
into consideration if the “other ........... are actually place in evidence, or
excluding it from con................... if the other facts are not actually proved.

If the tendered statement is one which falls under the definition of confession
in s. 25 only when it is taken in conjunction with other facts proved, the
matter must be considered on the case record, which should include
discussion as to how the statement and the “other facts” which appear on the
record, raise a reasonable inference that the maker of the statement (the
defendant) has committed an offence. A finding that the statement is or is not
a confession under the section is necessary before the court can consider the
application of other rules regarding the taking of statements and confessions
to determine whether it is or is not admissible in evidence, as discussed below.
4. Statements of accused called upon to plead.

An inculpatory statement by an accused in answer to a charge cannot be

used against the accused if a plea of not guilty is entered. R. v Alukani s/o
Alimunya, (1935), 2 E.A.C.A 87 88, for as was laid down in A v Frimin bin
Kunjana (1955 E.E.A.C.A 64 when a plea of not guilty has been entered the
words used by the accused cannot be construed in derogation of that plea.
(That is to say, that the words used by an accused in answering a charge
cannot be used to take away anything from the plea of not guilty when entered,
as would be the case if the words of the accused could be then used against
him. See also R v Sawe arap Kurgat, (1939), 18 K.L.R. (2) 166 R v
Kyesongero s/o Werara (1935) 2 E.A.C.A 43 R v Ngundulwa s/o Julu and
others, (1946) 13 E.A.C.A. 169;Hehe Njuguna & another v. R., Kenya H. Ct
278
Cr. Apps Nos 753 and 754/1964 (unreported). For example, in R v Alukani s/o
Alimunya, 1935, 2 E.A.C.A 87, the words used by the accused when asked to
plead were “I have already admitted that I killed the woman. If all the
witnesses come before the Court and say that I killed the woman, then why
should I not admit it?” This was not regarded as an unequivocal plea of guilty.

The rule is also important in considering confessions which implicate co-

accused under s. 32, for the statement cannot, as regards that charge, be
regarded as corroboration; Alikuni’s case. See discussions of s. 32 infra

b. The taking of statements and confessions.

1. By police officers.

The Indian Evidences Act provided in s. 25 that: “No confession made

to a police officer shall be proved as against a person accused of any offence.”
Kenya, however, as the result of the report of Commission appointed to
investigate a miscarriage of justice in 1928 enacted by virtue of ordinance No.
39/1952 a provision to make confessions to police officers inadmissible unless
made to an officer above the rank of Assistant Superintendent, later altered so
as to reads Assistant Inspector. (ord No. 49/1959).

Section 29 now reads:s

29. No confession made to a police officer shall be proved against

a person accused of any offence unless sub police officer is
279
 (a) of or above the rank of , or a rank equivalent to, Assistant Inspector,
(*) or
(b) an administrative officer holding first or second class magisterial
powers and acting in the capacity of a police officer.
***
For an example of the determination of whether an officer is of
“equivalent rank”, see R v. M’Ikirama s/o M’Ikobia, ( 1954), 27 K.L.R. 159,
and Muchiri s/o Nyamu and Another v R., (1956), 23 E.A.C. A..484, involving
a Tribal Police Reservist.

** Act 10 of 11969 (*) See. s 7(2), Police

(Amendment Act No.
29/1968, changing
rank designation.

The rationale behind the section was well put in a ruling in a trial within trial
in the unreported Kenya case of R. v. Mwania and Others, Kenya H. Ct. Cr.
Case No. 100/1967, p. 223 of the transcript, where the court said:-

“In Kenya there appears to be no such mistrust in this regard of

policemen as subh. For one reason or another it has been thought
wise to preclude the proof of confessions allegedly made to the
lower ranks of the Police Force; but once a police man has
reached a certain rank the fact that he is a policeman become
immaterial, and he may prove a confession made to him. Rank
has, I think been waken as a rough and .......... guide to intelligence
280
 and responsibility and the legislature has demanded that where
the Kenya Police are concerned some guarantee of intelligence
and responsibility must exist before confessions made to them con
be proved. That as I have said is not the approach of the Indian
Legislation and I do not thing that the Indian cases are of much
assistance in interpreting these sections.””

The annexed to the question is to when an administrative officer may

act in a police capacity for purposes of s. 29(b) is not entirely clear. Under s.
65 P.C. an administrative officer may read a proclamation for rioters to
disperse, however this section has given “police powers” only in a very narrow
sense, since the proclamation may also be read by a magistrate, or police
officer in their absence. The answer may lie with s. 6 of the administration
Police Act (Cap 85) which reads:-

The District Commissioner of any district within which the

appointment of Administration Police has been approved shall,
except when the provisions of subsection 2 of section 5 are
applied, administer the administration police in his district,
subject to the general or special direction of the Provincial
Commissioner.

However this is also not clear, for the powers given to “tribal Police Officers”
under Part III of the Act appear to apply to members of the force whereas it
would appeal that here there is a clear distinction between “administration”
of the force and the carrying out of authorized police actions.(*).

281
 Section 25 I.E.A., ( and presumably s. 2) K.E.A) admitted of a
qualification or limitation, and if a statement was inadmissible. “... a fortiori
what (another witness) overheard the accused say ( to the police officer) ... is
inadmissible. “ R. V. Nganga Njoroge, 1932), 14 K.L.R. 167. Similarly, the
application on s. 25 I.E.A. and again, presumably, s. 29) was not limited to
offence charged the issue being “Whether a confession to any offence, whether
charged or not, is admissible against an accused ...” if made to a police officer;
see Bampamiyki s/o Buhile v R (1957) E.A.473 475 (C.A.) Attorney General v
Manilal Patel, (1961) E.A. 354 (K)
In laying down this rule, the Court of Appeal noted that it was “not to be
taken to approve the introduction in evidence of confessions to offence other
than those charged which may be damaging to the character of the accused;
Bampamiyki’s case, p. 478. Nor does the section apply if the confession is not
to be “approved against the accused, but instead admitted in his behalf, as in
Nyenge s/o Suwatu v R (1959) E.A. 974 (C.A) where a statement held to be a
confession within s. 25 I.E. was led by counsel at the trial to support a defence
of insanity.

2. By Magistrates.

There is no longer specific statutory authority for the taking and

recording of confession by magistrates, as was formerly the case under s. 131
C.P.C. (Cap 7, Laws of 1926), the section having been omitted in the C.P.C.
enacted by virtue of Ord. No 11/1930 . The procedure continued beyond
enactment of the new C.P.C. and the courts failed to comment upon it,
presumable looking at the

282
 *See, however, powers which may be
given under cap 57, laws of Kenya.
cases as instances of confessions taken by persons in authority (see infra),
examining each case upon its merits for the test of voluntarieness, proper
cautioning of the accused, lack of inducements or threats, etc Since, however,
there may still be instances, as noted in s. 29(b) where administrative officers
have been magisterial powers and police powers, the problem which formerly
arose may still arise again in the future.

a. The problem of dual capacity.

If an administrative officer has both magisterial and police powers, he

has a “dual capacity”, and in determining whether the confession in question
is admissible in evidence, it is necessary to make a determination as to which
capacity he was fulfilling at the time the statement was taken. If he was acting
in a police capacity and held first or second class magisterial powers, s. 29(b)
is applicable, holding of third class magisterial powers would not suffice If
the administrative officer was
acting in a police capacity, the judge’s Rules apply, see infra whereas the
judges Rules have no application to the taking of statements by magistrates,
although similar procedures are applied, see Nayinda s/o Bagungwa v. R
( 1952) E.A. 68c(C.A).

The problem is illustrated by some of the cases decided under s. 25

I.E.A. for example R. v. Surumbu s/o Singana and Others, (1923)
7 E.A.C.A. 55, where a confession was ruled admissible since the District
Commissioner was not taking part in the investigations of the case, whereas in
283
Alkulendasana d/o Hamidi v R (1956), 23 E.A.C.A. 487 the Court held that in
as much as the District Commissioner had sent for the accused and
interrogated her, he could not be said to have divested himself of his authority
as a police officer and to have ...... or to have conveyed to the accused the
impression that he was acting solely as a magistrate, and the confession was
held to be inadmissible. The rationale appears to be that if the accused has
sent for he cannot be considered as a free agent, and the confession cannot be
regarded as voluntary. Nor has a mere assertion that magisterial functions
were being performed suffice where the accused did not ask to be taken before
a Magistrate for the purpose of making a confession, but is sent for to get
statements from him the courts of an investigation, this being held not to have
been a satisfactory separation of functions. R v Ndundu Mwarachubi and
others ( 1948) 15 E.A.C.A. 101, citing in support R. V Samburu (1940). 7
E.A.C.A. 55 and R v Jigingu. (1943), 10 E. A. C. A. 111.

b. Procedures where statements are recorded by magistrates.

If the statement is made by the accused when preliminary inquiry

procedures are being followed (S. 237, C.P.C. ; the section in all East African
Countries are substantially identical at present, the record of the evidence
must be certified in accordance with the section (s.237(4) as soon as the
evidence or statement has been recorded. If the confession is not properly
certified it will not be admitted as evidence and oral evidence of the statement
will not be allowed; see Ali bin Kavanga v R (1931), 4 Z.L.R. 151 It should be
noted, however, that as set forth in R v Nanta s/o Ndimi (1944), 11, E.A.C.A.
83, the proof as to the voluntary nature of an extra judicial confession must
be by parol evidence and a certificate at the foot of a document purporting to
284
be a confession that the confession was freely and voluntarily made will not
suffice. See discussion on proof of confessions in court, infra.

The court in Manta’s case gave helpful guidance for the taking of
statements by magistrates and other persons in authority by quoting from R v
O’Donoghue, (1927) 20 Cr. App R 132:-

“ ...the transcript, begins by saying: ‘ I have been informed by

the police’ so and so, ‘ and have been cautioned that I need not
say anything about it, unless I wish, but in spite of that I wish to
make a voluntary statement concerning it’. At the close of the
statement, before her signature, she adds:

“This statement has been read over to me and is true’ Now in

view of the fact that accused persons frequently deny that they
have been cautioned then in fact they have been cautioned or deny
what the statements has been read over to them when it has been
read over to them, we think that no objection can be taken to the
practice followed in the present case.”

The Court of Appeal then stated:-

“... we can see no objection to the record of the actual confessional

statement being prefaced and concluded by words similar to
those mention in R. V. O’Donoghue or words to the like effect.
285
 Indeed we think it is a practice which might with advantage be
generally followed by Magistrates or other persons in authority
recording statements by accused persons.”

While noting in Nayinda s/o Fatunave v R (1959 E.A. 688(C.A. at pp 694 - 695
what the Judge’s Rules were not applicable in this circumstances the Court
nonetheless stressed the importance of determining whether the statement was
voluntarily made:-

“In considering the question whether the statement made to a

magistrate should or should not be rejected, however, the
circumstances in which such statements are made must be kept in
mind. The Judge’s Rules are not application to the taking of
statements by Magistrates since they are rules drawn up for the
guidance of police officers engaged in the actual investigation of
criminal offences. There is, nonetheless, an established procedure
which is normally followed by magistrates and which is designed
to the same end, namely to ensure that a statement taken by the
Magistrate is a voluntary one. To this end, we certainly think it
advisable that a magistrate who is about to take a statement
should administer a cautioning the normal form laid down in the
Judge’s Rules. If there were anything in the evidence in a case to
suggest that the failure to administer a caution had resulted in the
making of the statement which was not voluntary in the
explained in R. v Veisin (1918) ` E.B 531) a trial judge might well,
in the exercise of his ciseration reject the statement. Never the
less we do not think that the absence of a caution by a magistrate
286
 would, in a general, be as serious a consideration as the absence
of a caution in the case of a statement taken by a police officer.
The circumstances in which the statement is taken are entirely
different and the normal procedure followed by a magistrate
when a prisoner is brought to him for the purpose of recording a
statement renders it unlikely that a prisoner ‘is not upon his
guard as to the importance of what he is saying or as to its
bearing on the charge preferred against him”.

Noting that it is obligatory that a magistrate satisfy himself that a

statement or confession was voluntary before another court would receive it in
evidence, R v Kinguru s/o Kbutui (1939), 2 E.A.C.A. 60, 62, the court of
Appeal has deprecated the use of any language which indicates a
predisposition on the part of the Magistrate to consider that statements to be
made would automatically be a confessions. For example in R v Chimilo s/o
Buakunda, (1951), 1 T.L.R. ® 693 (.C. 16 E.A.C.A 160, the magistrate wrote
in notes made before recording the statement: “The prisoner ... is brought
before me... to have his confession recorded”. The court quoted from R. v.
Wilbald s/o Tibanyndela, (1948) 15 E.A.C.A. III, 117:

“The Magistrate had no right to assume that the statement would

amount to a confession - in the event his assumption was proved
to be wrong as both the statements were exculpatory in
character. ... We mentioned the matter however, not because the
wrong use of the word’confession’ has in this case caused any
actual prejudice to the appellant, but because its use indicates a
confession of thought in the mind of the Magistrates.”
287
Again in R v Sikiliza s/o Tuhunzant and another, (1947) 14 E.A.C.A. 91, 92, it
was said:-

“Magistrates who take sub statements will be much better advised

merely to refer to them as voluntary statements recorded by them
without attempting to assess their incriminating or inculpatory
character”.

See also Mkarubia d/o Makewa v R., (2953, 20 E.A.C.A 298 and Yosef
Musabe s/o Sibukuraya v R., (1952), 19 E.A.C. A 266.

3. Confessions of accused whilein custody of police officer

28. No confession made by any person whilst he is in the custody of the

police officer shall be proved as against such person unless it be made in
the immediate presence of:

(a) a magistrate, or
(b) a police officer of or above the rank of, or a rank equivalent to
Assistant Inspector.
***
The initial problem which arises in application of section is that of who
is a police officer under the section? In regard to s. 25 I.E.A - confessions to
police officers not admissible - MAKENZIE, J in a concurring opinion in R. v
Asman Mwankewamba (1927) 1 T.L.R. ® 119, 122 noted that:-
288
 “......the authorities cited to us all tend to establish the principle
that section 25 ... is not to be applied in a strict techinical sense
but that persons who are ‘in the popular sense’ policemen are to
be regarded as coming within the section”.

There the accused has been arrested by the Headman of a village while
performing police duties under the Native authority ordinance 1925 of
Tanganyika.

Similarly in R v Nasela bin Msembe ( 925) , 1 TLR ® 117 it was held

that when the accused was arrested by men performing the duties of police in
the service of the Sultaness in the accused district, he was, for the purposes of
ss. 25 and 26 IEA in the “custody of police officers” and in Kenya it has been
held that the custody ( again under the IEA sections) need not be that of the
regular police force and that ‘the common sense of such a decision must be
apparent” R v Sangutet arap Sitonik (1939) 18 KLR (2) 162, citing R v Kaboo
Mulei, 1928 11 KLR 93. The test to be applied, as set forth in R v Mosoro s/o
Barue, (1940), 19 KLR (2) 125 in relation to s. 25 IBA was: “... was the person
to whom a confession was made acting as a police officer in the investigation
of a case”.

Having duties assigned which are merely akin to those of a police officer
are not sufficient, as in R v Shamsuddin Kassim, where confessions to a price
controller and a crop supervisor were rule not admissible under s. 25 IBA
(1944), 11 E.A.C.A 90)

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 Police custody must logically be taken to mean the situation where the
actual physical presence of a policeman, or at least near proximity, places the
prisoner in a position where pressures may compel him to make a statement
which may not be entirely voluntary, or else the decision Rashidi s/o Dadala v
R., (1950). 17 E.A.C.A. 124 appears as an unnecessarily subtle distinction.
There, at the time the accused made a confession to a fellow prisoner on
remand, he was held to be in the custody of the Governor of the Remand
Prison, who was not a police officer, and evidence of the confession was
admitted as not falling under s. 26 IEA

This type of decision is open to criticism, for it is difficult to distinguish

between a prisoner in police cells and a prisoner in a remand prison, for
despite the fact that the Governor might not in the technical sense be a police
officer, he and his warders would surely be viewed as such by an
unsophisticated prisoner.

Section 28 was recently considered in Kaluma and Others v R., (1968)

EA 349 (CA) where in it was submitted that the exception in subs (a) and (b)
only applied to confessions made in the immediate presence of a Kenya
Magistrate or a Kenya police officer, the statements in issue here having been
made to Uganda Police Officers. The Court disagreed, saying:-

“We consider that section 28 should be interpreted as being of

general application through, it excludes proof of confessions
allegedly made by persons in police custody unless made in the
immediate presence of a magistrate or police officer or above the
rank or equivalent rank of sub inspector. In this respect we do
290
 not agree with the view in the Chief Justice who considered that
the section applied only to Kenya police officers. The police
officers who recorded the confessions were proved to be of such
equivalent rank and the confessions were accordingly receivable
in evidence, subject of course to proof by the prosecution that they
were made voluntarily.”

4. The recording of statements.

It should be noted that there are great dangers in courts relying on oral
confessions of guilt, therefore the Rules and cases all emphasize the
transcription of statements, for as was said in R v Kapere s/o Mwaya (1946)
14 EACA 56 at pp 57 - 58 quoting from TAYLOR ON EVIDENCE (11th
Edn)., p. 582:-

“... the evidence of oral confession of guilt ought to be received

with great caution. For not only does considerable danger of
mistake arise from them is apprehension or malice of witnesses,
the misuse of words, the failure of the party to express his own
meaning, and the infirmity of memory; but the zeal which
generally prevails to detect offenders, especially in cases of
aggravated guilt, and the strong disposition which is often
displayed by persons engaged in pursuit of evidence, to magnify
slight grounds of suspicion into sufficient proof: together with the
character of the witnesses, who are sometimes necessarily called
in cases of secret and crime - all tend to impair the value of this

291
 kind of evidence, and sometimes lead to its rejection, where in
civil action it would have been received.”

The question arises as to whether it is improper for the officer who

investigates the offence to take the statement of the accused. In Njuguna s/o
Kimani and Others v R (1954), 21 EACA 316m 322, quoted in Israeli
Kamulkolse and Others v R (1956), 23 EACA 521, 525, the Court said:-

“This Court has more than once said that it is inadvisable if not
improper, for the police officer who was conducting the
investigation of a case, to charge a suspect and record his
cautioned statement”.

This dictum was explained and qualified in Bassan and Wathobia v R (19 61)
EA 521 (CA) at pp 533 - 534, where the court ruled that the fact that certain
statements made by the accused were made to investigating officers did not
automatically result in their exclusion from evidence:-

”we certainly do not think that the Court in Njuguna’s case

intended to lay down a rule of law that a statement recorded by
an investigating officer upon charge and caution of a suspect is to
be automatically excluded from evidence. Nor do we think that
the Court in Israeli’s case, can have intended to say that it is
necessarily improper for an investigating officer to take any
statement from a suspect. If it did , we must respectfully dissent.
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 There may be many aspects in the early stages of an investigation
into a case, and it is hardly a practicable proposition that a fresh
and independent police officer should be procured to take a
statement from each”.

It appears that the practice is till frowned upon if the situation can be avoided,
for in Njeru s/o Nkere and Another v R., the court after noting the case
referred to above considered the instance where the officer recording the
statement agreed that several material facts included the statement were
within his knowledge when he recorded it. (EACA Cr case 47/1967,
unreported) The court said that in this situation an investigating officer may
not be able to say as an independent person “I could not have fabricated this
statement because material facts in it, which have since been proved to be true
were not within my knowledge”.

a. The language of recording

Section 23(3) of the Police Act (Cap 84., Laws of Kenya, 1964) gives
power to record statements of persons whom such police officer has decided to
charge or who has been charged with committing an offence:” but the proviso
to subs (3) provides that it shall be signed” after it has been read to him in a
language which he understands...” with no provision for the language in
which the statement is to be recorded. The problem i.e. that of an accused
making a statement in a language which is his second tongue even though the
language may be one which the accused understands has been recently
considered by the Court of Appeal , which has become increasingly critical of

293
the present police practice in this area. For example in Riwaila Itabui v R.,
EACA Cr. Appeal No. 89/1927 (unreported), the court said:-

“....we observe once again that the confession by the accused was
recorded in a language different from that in which it was given.
We have often enough remarked on this in the past and hope that
the practice will soon cease”

The practice to be followed was set forth in Njeru’s case:-

“This court has repeatedly said, first, that when an accused

person elects to make a statement, he should be allowed to make
that statement in his mother tongue or any other language of his
choice, and secondly, that where the recording officer is familiar
with the language being used by the accused person, he should
record the statement in that language. The reasons for the first of
these rules is obvious: a person who is required to use the
language other than that of his choice may afterwards say that
through his ignorance of the language his use of words has
conveyed a menating other than that which he intended. The
reasons for the second rule is, that it is desirable whenever
possible to have a statement in the actual words of the person who
made it. (*) A great deal may turn on a single word and where the
recording officer writes down, not the words used but his
translating of them into another language, it may be or it may
turn on a single word and where the recording officer writes
down not the words used but his translation into another
294
 language, it may be or it may be alleged that what is recorded
does not correspond with what was said.”

(*) On this point see Chimilo s/o Baukunda v R (1951) 18 EACA 160
and Ochau s/o Osigai v R (1956), 23 EACA 586, 587.

b. The use of interpreters.

An interpreter acts as an intermediary only, and it has been held that a

statement made thorugh an interpreter to a senior officer is made to the
senior officer and though , not to the interpreter, therefore both the original
statement made by the accused in his own language and an English
translation must be produced at the trial. Ochau s/0 Osigai v R (1956) 23
EACA 586.

The courts have laid down some general guidelines for the use of
interpreters by the police and recording magistrates. It is, for example,
undesirable that police officers, especially if they have been engaged in the
investigation of a case or in arresting the accused, should act as interpreters of
confessions to other police officer, although there may be cases where no
alternative is available. R v Sidiki Kyoyo and Others, (1943), 10 EACA 103. A
police officer did not act as interpreter in R v Okigui s/o Edeke, (1941), 8
EACA 40, 41 in Court of Appeal, citing Tatia ole Kapech’s case, expressed the
opinion that “in such a case the confession would probably be adminssible ,
but in R v Okigui s/o Edeke (1941) 8 EACA 40, 41 the Court of Appeal, citing
Tatia ole Kapech’s case expressed the opinion that “in such a case the
confession would probably be admissible on the ground that it was not made
295
to the policeman but through him to the Magistrate”. If, however, a person
holds more than one office as in Camunga s/o Gidayurija and another v R
(1952) 10 EACA 253, where the interpreter was a Headman with the powers
of a police officer, it is possible to differentiate between the two capacities in
which the person may have been acting. If the interpreter did not act in his
police capacity in association with the accused from whom the statements
were taken, there is no objection on this point. Similarly it has been held that
it is undesirable for the same interpreter who has interpreted a statement at
the police charge office to act as an interpreter for the magistrate before
whom later statements are made; see Copa s/o Disamebany and Others v R
(1953), 20 EACA 328. The court did in one case distinguish between this
situation and the one in Gamunga’s case on the grounds that a Headman is a
person in authority and, therefore, an agent of the police, while in the case
under consideration the situation, arising only from a shortage of interpreters,
did not adversely affect the correctness of the interpretation.

Note : Under the present administrative organization, read “sub chief” for
“headman”)

In cases where the interpretation in the taking of statements or

confessions is necessary, the Court of Appeal has stressed the

“.... desirability and indeed the necessity of the utmost care being
used in taking these confessions to ensure (a) that, where the
police officer is himself unable to understand the language used,
the interpretation should not be entrusted to any but a fully
competent and responsible interpreter, and (b) that the accused
296
 should not be asked leading questions or cross examined on what
he says”. (in Fabiano Kinene s/o Mukye and Others, (1941), 8
EACA 96, 99).

5. The Judges Rules

The judges’ Rules are rules of practice, providing administrative

directions for the guidance of police officers into he taking of statements and
confessions from accused persons. Being rules of practice they are declared
by a court of competent jurisdiction and are followed until that court or a
higher court declares them obsolete or they are changed by legislation; see
Connelly v D.P.P. (1963) All E.R at p. 146, quoted in Magayi v Uganda (1965)
E.A 667, 669, (C.A.) The initial Rules were adopted in East Africa, and when
“new” Rules were adopeted in England in 1964, the question arose as to
whether the “old or the “new” Rules then applied in East Africa. The Court
of Appeal in Ondundo s/o Anyangu and Others v R EACA Cr. App No.
5/1968 (quoting from Jatan Jarso Gade and Another v R EACA CR. App No.
232/1965 both unreported settled the matter by ruling that the “old” Rules
still represent the practice to be followed in the criminal courts in Kenya”.
The Rules now applicable in Kenya are set forth on the next page.

THE JUDGES’ RULES

1. When a police officer is endeavoring to discover the author of a

crime, there is no objection to his putting questions in respect thereof to any
297
person. whether suspected or not, from whom he thinks that useful
information can be obtained.

2. Whenever a police officer has made up his mind to charge a person

with a crime, he should first caution sub person before asking him any
question, or any further questions, as the case may be.

3. Persons in custody should not be questioned without the usual

caution being first administered.

4. If the prisoner wishes to volunteer or any statement, the usual out

caution should be administered. it is desirable that the last two words of such
caution shall be omitted and that the caution should end with the words “be
given in evidence”.

5. The caution to be administered to a prisoner, when he is formally

charged, should therefore be in the following words:
Do you wish to say anything in answer to the charge? You are not obliged to
say anything unless you wish to doso but whatever you say will be taken down
in writing and may be given in evidence..” Care should be taken to avoid any
suggestion that his answers can only be used in evidence against him, as this
may prevent an innocent person making a statement which might assist to
clear him of the charge.

6. A statement made by a prisoner before there is time to caution him is

not rendered inadmissible in evidence merely because no caution has been
give, but is such a case he should be cautioned as soon as possible.
298
 7. A prisoner making a voluntary statement must not be cross examined,
and no questions should be put to him about it except for the purpose of
removing ambiguity in what he has actually said. For instance, if he has
mentioned an hour without saying whether it was morning or evening, or has
given a day of the week and day of the month which do not agree, or has not
made it clear to what individual or what place he intended to refer in some
part of his statement. he may be questioned sufficiently to clear up the point.

8. When two or more persons are charged with the same offence and
their statements are taken separately, the police should not read these
statements to the other persons charged, but each of such persons should be
given by the police a copy of such statements and nothing should be said or
done by the police to invite a reply. If the person charge desires to make a
statement in reply, the usual caution should be administered.

9. Any statement made in accordance with the above rules should,

whenever possible be taken down in writting and signed by the person making
it after it has been read to him and he has been invited to make any correction
he may wish.

a. The underlying principles.

299
 The basic principles underlying the Judge’s Rules have been set forth in
three English cases relied upon and quoted in the courts in East Africa R v
Voisin (1918) 1 KB 531 R v Base, (1953) 1 ALL ER 1064 and Ibrahim v R
(1912) AC 609 The following passage from R v Voisin has been emphasized

“It is clear, and has been frequently held that the duty of the judge to
exclude statements is one that must depend upon the particular
circumstances of each case. The general principle is admirably stated
by LORD SUMMER in his judgment in the Privy Council in Ibrahim v
Rex as follows:-

‘It has long been established as a positive rule of English criminal

law, that no statement by an accused is admissible in evidnece
against him unless it is shown by the prosecution to have been a
voluntary statement, in the sense that it has not been obtained
from him either by fear of prejudice or hope of advantage
exercised or held out by a person in authority.’ ”

The point of that passage is that the statement of the accused, tendered in
evidence against him by the prosecution must be shown to have been a
voluntary statement and any statement which has been extorted by fear or
prejudice or induced by hope of advantage held out by a person in authority
is not admissible.

The court continued:-

300
 “As LORD SUNNER points out, logically these considerations go
to the value of the statement rather than to its admissibility. The
question as to whether a person has been duly cautioned before
the statement was made is one of the circumstances upon which
the judge should exercise his discretion. It makes the statement
inadmissible; it may tend to show that the person was not upon
his guard as to the importance of what he was saying or as to its
bearing upon some charge of which he has not been informed”.

Since the Judge’s Rules are rules of practice rather than rules of law, a
discretion lies with the court in considering whether a statement taken in
contravention of the Rules shall be admitted into evidence or not. In R v Pass
it was said

“.... this court has said on many occasions that the Judge’s Rules
have not the force of law, but are administrative directions for the
guidance of police authorities. That means if the rules are not
complied with the presiding judge may reject evidence obtained in
contravention of them. If however, as R v Voisin shows a
statement is obtained in contravention of the Judge’s Rules it may
nevertheless be admitted in evidence provided it was made
voluntarily”.

The Court of Appeal, after quoting the above passage, said in Bassan and
Wathobia v R (1961) E.A. 521 at p 535, quoting from Nayinda s/o Batungwa v
R (1959) EA 688 (CA):-

301
 “We are not to be taken as minimizing the importance of
compliance by police officer with the judge’s rules. Failure to
comply with the judges rules when taking a statement fro m
prisoner will, no doubt usually result in the rejection of the
statement as evidence by the judge presiding at the trial. But it
must be kept in mind that the judges rules are administrative
rules, and that breach of them does not automatically result in the
exclusion of a statement. The breach is but one of the
circumstances, though an important one, for the trail judge to
take into account in deciding wither or not the statement was
voluntary, or was made in circumstances with render it unfair to
the prisoner that it should be admitted in evidence.”

Of course if the statement which has been tendered has been obtained in
contravention of the provisions of s 26,27 or 28 KEA (see infra) it will not be
admissible in evidence regardless of whether the judges rules have been
complied with.

b. Other statutory provisions not inconsistent

The court in Balbir SainJeshi v R (1951), 18 EACA 228 in which the

judges’ rules were first ruled applicable in Kenya noted statutory provisions
which must be taken into account in considering application of the Rules,
noting also that the provisions of ss. 25 and 26 IEA (ss 26 and 27 KEA) go
considerably further than the Rules in providing protection to a suspected or
accused person against being led into making incriminating statements by
question put to him by a police officer.
302
 The court also considered the provisions of what is now s. 22 of the
Police act (Cap 84) of Kenya, which gives broad powers for requiring
attendance at the police station, and requires the person so attending to
answer all questions that may be lawfully put to him (s. 22(2) Section 22 (2)
previse also provides that

“... not person shall be required to answer any question the

answer to which may tend to expose him to a criminal charge or a
penalty or forefeiture.”

Subsection 22(3) requires that a warning shall be given before recording any
statement from a person whom the police officer has decided to charge, and
that the statement shall, whenever possible be recorded in writing and signed
by the person making it after it has been read to him in a language which he
understands and he has been invited to make any corrections which he may
wish to make. These provisions are very similar to the Judges’ Rules, and as
the Court said on p. 231, are:-

“...in no sense incompatible with the principles underlying the Judges’

Rules.“

c. Cases involving the Judges’ Rules.

In Njuguna s/o Kimani v R., (1954) 21 EACA 316, the Court said that
Rules 1 and 2 apply to cases where the person questioned is not is not in
police custody, and in connection the .........said at . 319:-
303
 “The notion that the police scan keep a suspect in a lawful custody
and prolong their questioning of him by refraining from formally
charging him is so repugnant to the traditions and practice of
English law that we find difficulty in speaking of it with reprint.
it must be recognized that once a police officer has made up his
mind to charge any person it is his duty so to inform that person
as soon as practicable and thereafter to produce him before a
Magistrate as required ...” (by the CPC)

The spirit and intention of Rule 3, quite general as regards police

custody, was set out in ARCHBOLD’S CRIMINAL PLEADING, etc (33rd
Edn ) , 415 para 683 quoted in Njuguna’s case at p. 321:-

“Rule 3 is not intended to encourage or authorize the questioning

or cross examination of a person in custody, after he has been
cautioned, on the subject of the crime for which he is in custody,
and long before this rule was formulated and since, it has been the
practice for the Judge not to allow any answer to (giving
example).. Rule 3 is intended to apply to such cases and, so
understood, is not in conflict with or does not qualify rule 7 which
prohibits any question upon a voluntary statement except such as
is necessary to clear up ambiguity”.

The court then noted:-

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 “There is nothing in the powers confered upon police officer by
section 36 ( nows. s. 22) of the Police ordinance which authorizes
any departure from that rule.”

Rule 7 concerning questioning of accused persons has resulted in

statements being rule inadmissible in cases where the accused making a
statement was interrupted by questions put by a Police officer after having
made the first part of a statement voluntarily: George Migwa Wambugu v R
(1950) 24 KLR (1) 91 and where a magistrate recording a confession
subsequently nullified his previous caution and destroyed the voluntary
nature of the statement by asking incriminating questions R v Nyugindo s/o
Luhende (1948), 15 EACA 132. See also R v Victoro Abumani and Another,
(1945), 12 EACA all and R v Kingaru s/o Kabutui (1935), 2 EACA 60

The express terms of Rule 8 dealing with furnishing copies of statements

to co-accused has been modified in East Africa, In Oburungi s/o Omiyot and
Another v R (1955), 22 EACA 519, 520 the Court of Appeal observed:

“Rule 8 of the Judges’ Rules expressly forbids the police to read

the statement of one accused to other persons charged, but
provides.... Under the circumstances obtaining in these territories,
where a large proportion of accused person are illiterate it seems
clear to us that some modification of this rule must be allowed,
and we think that procedure adopted in the present case .... was
an entirely proper one and not out of keeping with the spirits of
rule. he ( a superintendent of Police read the statement over to
the appellants because they could not read themselves, but he
305
 made it quite clear to them that they need not make any statement
in reply and after they had both expressed a wish to make a
statement he again administered the usual caution.”

However the police practice of reading the confession of an accused to his co-
accused in the presence of the accused has been recently disapproved in R v
Kombe (1966) EA 69 (CA) and the Court said that had it been satisfied that
the course was taken in order to elicit a confession from the second accused it
would not have hesitated to exclude if from evidence.
6. The onus of proof of proving a confession was voluntary

The onus of proving a confession was voluntary lies on the prosecution. In R

v Nyngindo s/o Luhende, (1948) 15 EACA 132 133 the court said:-

“No consider that the prosecution failed to discharge the onus

which lay upon it of proving that the extra judicial statement in
this case was in its entirety, a voluntary one...”

See also R v Mitilande, (1939), 7 EACA 46; Mohamed Ali and Another v R
(1956), 29 KLR(2) 166, 167; Onyango Otolito v R (1959), EA 986, 988(K)

The head note in Njuguna s/o Kimani and Others v R (1954), 21 EACA 316 is
to the same effect, and Edog s/o Enat v R (1954) , 21 EACA 388 notes in
addition that where a trial judge has a doubt as to the allegation that the
accused was beaten, the onus has not bee discharge by the prosecution. See
also Akutendesena d/o Hamidi v R (1956) 23, EACA 487, 491, The quantum
of evidence required is also as full as under English law; R v Mbara bin Petro
306
(1936) 8 EACA 110. Despite a prima facie Misdirection on the part of the
Court in Mwangi s/o Njoroge v R (1954), 21 EACA 377, 379, it was held that
the Judge was aware of the case. The accused repudiated a statement and the
Judge recorded the ruling that:-

“ no ruling is required on the point As to the voluntaries it is

otherwise of exhibit 2 as accused denied making it and does not
say that he made it under duress. There is apparently no question
of duress inducing the statement”.

The court of Appeal said:-

“Before a confession is admissible... it must be affirmatively

proved that it was not preceded by any inducement by a person
in authority or that it was made only after such inducement had
clearly been removed; .. But the record shows that the learned
Judge did not in fact misdirect himself on this point since he had
earlier drawn Crown Counsel’s attention to the necessity of
showing that the statement was voluntary and made after proper
caution, etc. Such evidence was then led and apparently satisfied
the judge as to the voluntary character of the statement.”

7 Inducements.

26. A confession or any admission of a fact tending to the proof of guilt made
by an accused person is not admissible in a criminal proceeding if the making
of the confession or admission appears to be the court to have been caused by
307
any inducement, threat or promise having reference to the charge against the
accused person, proceeding from a person in authority and sufficient, in the
opinion of the court to give the accused person grounds which would appeal to
him reasonable for supposing that by making it he would gain any advantage
or avoid any evidence of a temporal nature in reference to the proceedings
against him.
******

a.. Person in authority.

It would appear from an examination of the cases, that an individual making

a threat or offering or inducement is a person in authority by virtue of the
position which he occupies at the time. The Courts have at various times
expressly stated, or stated by implication, that persons in authority include the
police (a basic Ochau s/o Osigai v R., (1956;): 23 EACA 586), Magistrates
(also a basic supposition; see, for example R v Nanta s/o Ndimi, (1944), 11
EACA 83), those acting in a police capacity (R. v. Shagenda s/o Gingili, (1948),
15 EACA 139; R.V. Nasorc s/o Barua (1940). 19 KLR (2) 125 and cases noted
therein) Chiefs (R. v. Maganda s/o Okurut, (1944), 11 EACA 81; R v Sawe
arap Kurgat, (1939), 18 148; R v Okello (1915), 2 ULR 261; R v Kyaiongka,
(1920) 2 U.L.R. 379), Headmen (see comment: “... for a headman is a person
in authority and is an agent of the police”... for headman is a person in
authority and is an agent of the police” in Gopa’s case at p. .....) and in
particular instances, an adjutant of the King’s African Riffless (R v Noronha,
(1922) 9 EALR. 12) U.L.R. 12, the Manager of a firm (R v Alikisi Sumuli and
Godiacai , (1919), 2 U.L.R. 323), and a Divisional Executive Officer (by

308
implication, in Athumani s/o Kassim v R; T.H. Ct Cr App. 932 - D - 67,
Tanzania High Court Digest, Vol 2 No. 3, case 143, p 17).

b. What constitutes inducement, threat or promise?

A mere exhortation, or urging, is not sufficient to make the statement in

inadmissible under the section. It was held in R v Nornha, (1922), 9 EALR 12
that words spoken by a person in authority after the accused said “I wish to
confess ”i.e. “You must tell the truth and no lies” were an exhortation to
speak the truth and did not constitute a threat or promise. The words
“confess, contess, and your punishment will be small, we won’t send you
before the Bwana if you confess”, made by chiefs, which resulted in a
confession (later retracted), were held in R v Okello; (1915), 2 U.L.R. 169 to
have been an inducement with reference to the charge against the accused.
Since it proceeded from persons in authority, it was unsafe to convict, for as
pointed out elsewhere, the police and chiefs are persons “of whom the accused
are likely to have stood in awe and to whom they may have felt bound to reply;
R v Ikojot and Angellu, (1917), 2 U.L.R. 261. Similarly a confession was rule
inadmissible when a manager of a firm from which the sum of money had
been stolen promised the accused they would not be prosecuted if the missing
money was returned, and the accused, though able to produce the money,
confessed that they had stolen it; (R.v. Alikisi Sumuli and Belitai, (1919), 2
U.L.R. 323.

Inducement or threats may be implied as well as direct, as in A wangi

s/o njerer v R., (1954, 21 EACA 377, where the words used were “you had

309
better think whether you are going to tell me or not” which were held to
contain on implied threat.

It is difficult to see, however, exactly what the distinction is between the

wards “You had better think whether you are going to tell me or note”, and
“It would or might be better for you to make a statement”, which were held in
R v Kathunge s/o Kuriumei, (1938), 5 EACA 154, not to be an inducement.
The court in the letter case did say that the police should be careful to avoid
addressing accused persons in these or similar words
..............................................................................................................................
that what had been said to him did infact operate as an inducement for as has
been noted, if there is any suspicion that any element or coercion or
persuasion or inducement has been present at the making of the statement,
the confession may be inadmissible; see R v ReFabian Kinene s/o Mukye and
others (1941) 8 L.R.C. 96, 99.

It should be noted, however, that the only duty of a magistrate before

recording a statement is to satisfy himself that the statement is voluntary and
has not been induced by any promise or threat, as it is in the interest of justice
that if an accused person genuinely wishes to make a statement he should be
allowed to do so and not dissuaded. Nathonge’s case supra.

From an examination of the reported cases, many of the distinctions

which the courts have attempted to draw in determining whether certain
types of similar statements constitute threats or inducements appear overly
310
refined. It is, after all, the trial court which has before it the evidence of the
surrounding circumstances and features of the evidence such as demeanour of
the witnesses which must have some effect upon the decision on any particular
case. Nor is the matter simplified by the use of the words “sufficient.. to give
the accused person grounds which would appear to him reasonable ....” in the
section. This must be a determination in each individual case. As was said
recently in Commissioners of Customs and Excise v Harz and Another, (1967)
H.C. 760 (H.L.):-

“It is true that many of the so called inducements have been

so vague that no reasonable man would have been influenced
by them, but one must remember that not all accused are
reasonable men and women; they may be very ignorant and
terrified by the predicament in which they find themselves.
So it may have been right to err on the safe side.”

An examination of the cases dealing with retracted confessions, infra, shows

the normal allegations of threats, physical violence, etc which are so
commonly noted in East African cases. A good example is Ochau s/o Osigai v.
R., (1956) 23 E C.. 586, where the accused was interrogated at length and
“finally broke and made a confession”, whereupon the accused was then
cautioned and made a statement, illustrative of a caution administered merely
as a matter of form, giving an entirely false description and appearance of a
voluntary confession.

It should also be noted that “ the objection to admissibility is not

confined strictly to the ambit of [s.25] “; Njuguna s/o Kimani and others v.R
311
(1954), 21 E.A.C.A. 316, 320; but that the Judges Rules and the Police Act are
also applicable.

c. Removal of inducement, etc

If such a confession as is referred to in section 26 of this

act is made after the impression caused by any such
inducement, threat or promise has, in the opinion of
the court, been fully removed, it is admissible.

Two cases dealing with the subject concern magistrates taking

statements after an alleged inducement. For example in R. V. . S/o Ndimi;
(1944), 11 E.A.C 83, 84, it was not alleged that the magistrate held out any
improper inducement, but that a previous improper inducement was still
operating on the mind of the accused.

“ the question is one of fact to be determined in

the light of the facts disclosed in each particular
case.”
Here, and in R.V. . S/o . (193c) 5 E.A.C.A 194, careful precautions
by the magistrate before taking the statement, lapse of time between the
inducement and the of the statement (in .. case), and a lack of any
allegation by the defendant that the confession was obtained by threat or
inducement (where one could possible have been present), in . Dau s/o
Okoba, (1962) E.A. 9 (C.A) led to findings that the inducement or threat had
ceased to be operative.

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Retracted and repudiated confessions.

The basic difference between retracted and repudiated confessions is, of

course:-

“ that a retracted statement occurs when the

accused person admits that he made the statement
recorded but now seeks to recant, to take back what
he has said, generally on the ground that he had been
forced or induced to make the statement, in other
words that that the statement was not a voluntary one.
On the other hand a repudiated statement is one
which the accused person avers he never made.
“Tuwamoi v. Uganda [1967] E.A. 84, 87

The obvious method for retraction or repudiation of a confession by an

accused is a clear or positive stand taken at the trial, but instances have arisen
when this has not been done, but has occurred, instead, by implication. In R.
v. Kayanda s/o Mkuyu and Others, (1943). 10 E.A.C.A 117, a memorandum
of appeal suggested that the appellant retracted his confession at the trial, for
when asked if he wishes to say anything, he had said “I deny that I told Mr.
Bates that I had killed anyone”, while the other appellant , who must have
heard what transpired between appellant no. I and the Judge did not allude
to his confession at all. In these circumstances the confessions were regarded
as expressly or impoliedly denied. The Court has also treated as impliedly
repudiated a confession signed by the appellant on the ground that there had

313
been some misunderstanding on the part of the Police Officer of the Swahili
conversation with the appellant, is that the Appellant at the trial denied that
he said what the Police Officer deposed he said, Erinayo Polo v. R., (1950), 17
E.A.C.A. 150. Similarly, after making a statement on oath before a
magistrate, an accused, by saying in an unsworn statement at the trial that he
has only heard that the deceased had been killed, without making any
reference to his extra-judicial statement or evidence before the magistrate,
impliedly retreated his confession; R.V. Kenga and Another, (1943), to
E.A.C.A 123. In similar circumstances when an accused in an unsworn
statement at the trial said “I ask permission to go home because at that time I
was sick. I had no senses. That is all I have to say.” the Court said:-

“This statement is capable of the interpretation that

the appellant intended to convey he did not know
what he was doing at the time of the crime, and
indeed, had no reallocation of the killing of Ndaje,
which he could not, therefore admit.”

The confession was treated as impliedly retracted; Chimilo s/o Baukunda v. R.

(195..), . 163. See also Ansoni v. R. [1966] E.A 66 (C.A.), statement
not specifically repudiated; misdirection that it was neither retracted nor
repudiated.

The Courts between 1935 and 1967 considered a long series of cases in
which distinctions were made between retracted and repudiated confessions,

314
however Tuwamoi’s case has laid down the present rules which cover both
instances, hence it is not necessary to set forward either the history or
progression of the cases. A complete list may, however, be found in
Confessions in East Africa, 4 E.A.L.J 70 at p.114.

In Tuwamoi’s case the Court of Appeal, per DUFFUS, Ag. V-P., set
forth the present rule which applies to retracted confessions throughout East
Africa (at p.89):-

“The present rule then as applied in East Africa in regard to a retracted

confession, is that as a matter of practice or prudence the trial court should
direct itself that it is dangerous to act upon a statement which has been
retracted in the absence of corroboration in some material particular, but that
the court might the so if it is really satisfied in the circumstances of the case
that the confession is true.” (emphasis added).

After next considering the history of the retracted-repudiated distinction as

applied in East Africa, the Court said:-

“On reconsideration of the position we find it difficult

to accept that there is any real distinction in principle
between a repudiated and a retracted confession.
This decision appears to narrow down considerable
the rule of practice laid down in 1940 in (R. v.
Keisheimeize, (1940), E.A.C.A. 67) and also, the
standard of proof required in a repudiated statement
315
 as set out in 1936 in R.v. Labasha.” (1939), 3 E.A.CA.
48).

And concluded:-

“We would summarize the position thus – a trial

court should accept any confession which has been
retracted or repudiated or both retracted and
repudiated with caution, and must before founding a
conviction on such a confession be fully satisfied in all
the circumstances of the case that the confession is
true. The same standard of proof is required in all
cases and usually a court will only act in the
confession if corroborated in some material particular
by independent evidence accepted by the court. But
corroboration is not necessary in law and the court
may act on a confession alone if it is fully satisfied
after considering all the material points and
surrounding circumstances that the confession cannot
be but true.”

The above quotation sets forth the approach which a court must take when a
confession is retracted or repudiated, specifically or by implication.

Confessions obtained by deceptions

316
 30. If a confession made by an accused person is otherwise admissible it
does not cease to be so merely because it was made under a promise of
secrecy, or in consequence of a deception practiced on him for the
purpose of obtaining it, or when he was drunk, or because it was made
in answer to questions which he need act have answered, whatever may
have been the form of those questions, or because he was not warned
that he was not bound to make such confession and that evidence of it
might be given.

If a confession is otherwise admissible, it does not become inadmissible

merely because it was made under a promise of secrecy, etc. The section has
been little considered in East Africa, and even SARKAR devotes only 5 pages
to its discussion; pp.316 – 321.

In R. v. Eriya Kasule and Others, (1948), 15 E.A.C.A. 148, the Court of

Appeal held that in interpreting the words “made in answer to questions
which he need not have answered”, the Legislature had in mind the case
where, in a confession which was otherwise voluntary, the person recording
the statement may have asked one or two questions. The Court said:

“We respect the trial Judge’s own remarks. ‘He (the

appellant) would probably never consider that he
could remain dumb’. In this connextion it is of
interest to note what appears in Kenney’s . ‘Outlines
of Criminal Law’, (15th) 1936 Edition at page 469: ‘It

317
 is not necessary that the prisoner should have been
pressed to confess guilt: it is sufficient if he were
pressed to say anything whatever. Thus, ‘it might be
better for you to tell the truth and not a lie’ will
suffice to exclude a confession , although ‘Speak the
truth if you speak at all’ is harmless.’ ”

The Court of Appeal appears to read the section together with the inducement
section, s.26 K.E.A., and the Judges’ Rules, and does not hinder the discretion
of the Judge to exclude the statement “If, in the words employed in R.V.
Voison, he thinks the statement was not a voluntary one in the sense above
mentioned, or was an unguarded answer made under circumstances that
rendered it unreliable, or unfair for some reason to be allowed against the
prisoner”, from Nayinda s/o Batungwa v.R., [1959] E.A. 688, 694 (C.A.). This
approach is reinforced by the introductory language of s.30: “If a confession
made by an accused person is otherwise admissible it does not cease to be so
merely because ”, etc., for the section does not make reference to the
reasons why a confession might be inadmissible, which would include
application of the Judges’ Rules.

Procedures for determining admissibility of confessions.

It is well settled that the decision on any question of law or fact upon which
the admissibility of any piece of evidence depends is for the court alone,
and when once the voluntary nature of a confession is challenged by the

318
 defence, the court should make a thorough inquiry; R. v. Njarura s/o
Ndugo(1943), 11 E.A.C.A. 377 it was said that whether or not a statement
tendered in evidence was or was not made by an accused person is a
question of fact for the trial Judge affecting the admissibility of the
statements, and it is necessary for a trial within a trial to be held and an
interlocutory ruling given on the issue as to whether an accused has given a
statement which he repudiates. The same is true for retracted confessions:
See R. v. Njarura s/o Ndugo, supra.

How does the issue arise

The question may arise in a variety of ways, by statements made by

prosecution witnesses, as in Hasana Ole Lakale Soi v. R., K.H. Ct. Cr. App.
No. 479/1966 (unreported); through cross-examination of prosecution
witnesses by the accused; for example Onyango Otolito v. R., [1959] E.A 966,
988 (K); or through specific allegations made at the time of tendering the
statement or when the accused is called upon to make his defence, although by
this time the question has usually been settled. Even if a specific objection is
not make, it is the duty of every judge and a magistrate to examine with the
closest care and attention all the circumstances in which a confession has been
obtained by a police officer from an accused, particularly when the accused
has been in police custody for a long period before making his confession;
Githinji s/o Njuguna and Another v. R., (1954, 21 E.A.C.A. 410, 413, quoting
Njuguan and Others v. R., (1954), 21 E.A.C.A. 316.

Before the evidence of an extra-judicial statement is admitted, when the

accused is not represented by an advocate, the Court should ask the accused
whether he intends to dispute the admissibility of the statement. Mohamed

319
Ali and Another v. R., (1956), 29 K.L.R. (2) 166; Onyango Otolito’s case,
supra, Lwase v. Uganda, E.A.C.A.. Cr. App. No. 3 , 1967 (unreported),
Hassan s/o Waliseme v. R., [1952] P.A. 800, 803 (C.A.). (Note that in Lwase’s
case the comment that it was said that it was desirable that the Judge
ascertain whether the comment is objected to in a case where the Court was
sitting with assessors. In Mohamed Ali’s case the Court said:

“The procedure laid down by the East African

Court of Appeal in (Zinyori Karunditue v. R., (1956),
23 E.A.C.A. 480), however, is expressly stated to be
applicable to the question of the admissibility of any
extra-judicial statement, or part thereof, made by the
accused either in writing or orally.”

The dangers of the magistrate not ascertaining when a statement is tendered

by the prosecution whether the accused intends to challenge its admissibility
was explained in M’Mugairi s/o Karegwa v. R., (1954), 21 E.A.C.A. 262 – 265
where the Court said:-

“ when the court follows the procedure of a ‘trial

within a trial’, the accused may elect to give evidence
and may call all witnesses limited to the one
particular issue of admissibility and, in such case,
neither he nor his witnesses can be cross-examined on
the general issue. If, however, his opportunity to
adduce evidence is postponed until he is called on to
make his defence to the charge then, although he may
restrict his own evidence in chief and that of his

320
 witnesses to the particular issue, yet nevertheless both
he and they once in the witness-box are exposed to
cross-examination on the general issue. There is
obviously a very real danger of prejudice here; the
defence may be caught on the horns of a dilemma – if
no evidence is given the statement will be admitted
and a conviction inevitably follow: if the accused goes
into the witness box, the probability is that he will
make such damaging admissions under cross-
examination that a conviction is almost as inevitable."

See also Israel Kamukolse and Others v. R., (1956), 23 E.A.C.A. 521 and
Hassan s/o Waliseme and Another v. R., [1959] E.A. 800, 803 (C.A.).

“Trial within a trial” procedure in magistrates’ courts

The procedure known as a trial within a trial is a rule of practice rather than
a rule of law; Magoyi v. Uganda, [1965] E.A. 667, 669 (C.A); and has been
developed to determine the admissibility of an extra-judicial statement made
by the accused when such admissibility has been challenged, either by
retraction or repudiation, or through allegations of coercion, failure to comply
with the Judges’ Rules, etc.

In trials with assessors, the procedure laid down in Kinyori Karuditu v.

R. (1956), 23 E.A.C.A. 400, 462 is controlling, and the Court of Appeal in
Magayi v. Uganda stated that they saw no good reason to alter it at present.
The phrase “trial within a trial” is not strictly applicable to the procedure
followed in a magistrate’s court when the issue of admissibility of a statement
is to be determined, since it normally indicates a trial of the issue by a judge in
321
the absence of the assessors. It is, however, a convenient phrase to describe a
corresponding procedure which the Court of Appeal has emphasized “ must
be adopted in a trial in a magistrate’s court”; see Hassan’s case p.802.

The procedure might more accurately be described as a “recapitulation

of the evidence”, indicating that once the issue of admissibility has been raised,
the magistrate should inquire into the circumstances leading up to the taking
of the statement in considerably more detail than has been done up to that
point. A good example is Masana Ole Lakale Soi v. R., K.H. Ct Cr. App.
No.479/1966 (unreported), on appeal from a magistrate’s court, where the
interpreter began his evidence with the usual phrases “he was cautioned”, he
elected to make a statement”, etc., and then divulged “The accused was told
that he would tell people who stole the cattle he would be released. The
accused mentioned other people.” The evidence clearly revealed a possibility
of an illegal inducement of promise with reference to the charge against the
accused, under s.26 K.E.A., and the appeal Court said:-

“We think at this stage it would have been proper to

have had a recapitulation of the police evidence
avoiding stock phrases or shall we say the usual

phrases and to have inquired precisely what was

said to the appellant and in what order.”

By doing so the magistrate elicits the circumstances under which the

statement was taken and, by also inquiring of the accused whether he objects
to the admissibility of the statement, learns of any other reasons which may
make the statement inadmissible, which may also be inquired into at the same
time.
322
 Although there is no specific authority or administrative direction given
in the case reports as to the exact procedures to be followed in
magistrates’courts, the following may be of assistance:-

1. Prosecution, through witnesses and using “standard phrases”, lay

foundation for introduction of extra-judicial statement or confession. (see
section 11, infra, Proof of confessions in court).

2. Magistrate inquires of accused whether he plans to

challenge the admissibility of the statement.

3.(a) If accused does not state that he wishes to challenge the

admissibility, magistrate determines question of admissibility on
the evidence as presented.

(b) If accused states objection to admissibility (or) if it has

become evident during course of prosecution evidence that there
may be an objection to admissibility;

1.Magistrate inquires in more detail as to circumstances in

which the statement was taken requiring of prosecution witnesses
that standard phrases be avoided, and evidence given include the
circumstances under which statement was taken, the actual words
used by police officers present, etc.

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 2. Accused is given right to cross-examine prosecution
witnesses on their evidence insofar as it concerns the taking of the
statement.

3.Accused is given right to call witnesses, give evidence on

oath limited to questions of admissibility, or give unsworn
statement limited to questions of admissibility.
4.The Magistrate makes determination from all the evidence on the
circumstances surrounding the taking of the statement as to whether the
statement is admissible, records finding on admissibility and reasons thereon
in the case record, and admits or excludes or excludes the statement
dependent upon finding.

Note that during this procedure, the inquiry is limited to admissibility of

the statement or confession, and no evidence should be allowed dealing with
the general issue.

No trial within a trial procedure in Preliminary Inquiries

The Court of Appeal considered the question of the admissibility of

extra-judicial statements by the accused at the Preliminary Inquiry in
Masson’s case, supra, acting that the accused has every right to remain silent.
In the formal situation it is sufficient, upon objection, for the magistrate to
note the objection to admissibility and include the statement with the
depositions, for the question must be decided by the trial court and even if the
statement is excluded there is nothing to prevent the prosecution from seeking
to have it admitted to the trial. The Court said:-
324
 “In the exceptional case was the exclusion of an extra-judicial statement
would result in the accused person having no other answer, the accused (or his
advocate) would, no doubt, cross-examine the witness for the prosecution with
a view to showing that the statement ought to be excluded, and the accused
would also, no doubt, avail himself of the opportunity to give evidence on the
point as provided by (the relevant section of the C.P.C.). If, on consideration
of the whole of such evidence the magistrate reaches the conclusion that the
extra-judicial statement is not admissible he would then presumably reach the
conclusion that the accused has no case to answer and refused to commit the
accused. There is no object to be achieved by trying the issue of admissibility
during the course of the preliminary enquiry, and it would seem contrary to
the provisions of (the relevant section of the C.P.C) to require the accused to
give evidence or make a statement on such an issue. We entirely agree that
no significance should be attached to the fact that an accused either has or h
as not taken objection at the preliminary enquiry to the admissibility of a
statement.” (P.803).

Proof of confessions in court

As a prelude, it goes almost without saying that the prosecution should not
place total reliance upon confessions in attempting to secure convictions.
In R. v. Kamau, (1922), 10 K.L.R. 8, quoted in Manibai Hira v. R., (1945), 7
E.L.R. 14, BARTH, C.J. said:-

325
 “Shortcuts are usually inexpedient, and every effort
should be made to prove the case alleged against the
accused without a reliance on a confession which can
as easily be retraced as made. The police should not
be satisfied that, a confession having been obtained, a
case is complete.”

Commenting upon this statement, the Court in Manibai Hira’s

case said:-

“The learned Chief Justice was in that case dealing

with a confession, but what he then said applies with
equal force to other made to the police by accused
persons in custody. Such statements are as easily
denied or retracted as made and the police should not
be satisfied that their investigation is complete unless
and until they have, apart from anything the accused
person may have said, obtained the best and fullest
evidence available to support the charge.”

Written confessions must be proved under the normal rules

governing proof of documents, however there are special
problems which arise in proving confessions, based both upon the
onus of proof of voluntariness and, for example, upon the use of
interpreters in taking statements or confessions; see Section 4(b),
pp 254 - 255, supra.

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 Proof at the trial

Where a confession has been taken in a prescribed manner, and the accused
subsequently pleads not guilty, the truth and voluntariness of the confession are
denied by implication. This is distinguished of course, from an event denial such as
retraction and repudiation of a confession, and the court, before it acts upon the
confession should inquire into all the material circumstances of the confession and
satisfy itself fully that it was true and voluntary Wanja s/o Mbago v. R., (1929), 12
K.L.R. 136, citing R. v. Kojot and Angulu, (1917), 2 U.L.R. 261. Consequently, as
was said Wamae’s case at p.137:-

“We (the Court of Appeal) are of the opinion that the

prosecution ought (to call) all other evidence first in
order that the court should be able to judge from the
surrounding circumstances whether (the confession) was in
fact true and voluntary. In all such cases we consider that
the evidence should be called to lead up to the confession
where possible rather than be called after the confession
which may possibly be found to be inadmissible
subsequently.”

The practices of some courts as a law statements to be admitted as soon

as it is produced has been .. In Yezefu Masabo s/o Sebukuraya
v. R., (1952), 19 E.A.C.A. 236, 267 the Court of Appeal said that:-

“ a trial Judge should be careful never to admit a

statement by which we mean it should not be read out in
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 open court, and it is properly proved by the evidence of the
interpreter as well as by the Magistrate or the police officer
who recorded it.”

In this case the danger was made manifest. The statement was marked for
identification, read in open court, and when the next witness, the interpreter, was
called, it transpired that he had not properly interpreted to the accused the usual
caution. The trial Judge then properly excluded it, but the danger was still present
that the Assessors had not been able to put the statement out of their minds.

The recorder of the statement is called as a witness both for the purposes of
identifying the accused with the person who made the statement and for the purpose
of giving the accused an opportunity of cross-examining him; R. v. Kamau wa
Macharia, (1924), 10 K.L.R. 8. In R. v. Msyago s/o Kabwiri and Others, (1943), 10
E.A.C.A. 98, where a magistrate recorded a statement and then proved it at the
Preliminary Inquiry, his deposition from the P.I. was admitted in evidence under
the (then) provisions of s.265 T.C.P.C after the magistrate’s transfer to another
District, on the ground that his attendance could not be procured without an
amount of delay, expense or inconvenience which, in the circumstances of the case
was unreasonable the court held that a statement from the Prosecutor could be
sufficient or the Court could call for something more as evidence on the point. This
would be unapplicable, however, without the previous proceedings, as under s.34
K.E.A., as the requirements of the section would not be fulfilled. However the
Court of Appeal has also held in another case, R. v. Esmail Huseinali Hasmani,
(1938) 5 E.A.C.A. 49, under (then) s.265 C.P.C that no consent on the part of the
defence could dispense with the necessity of complying with the provisions of that
section, which prescribes inter alia that the Judge should be satisfied from the oath
328
of a credible witness that witnesses were absent from the Territory before allowing
their depositions to be read. The time for deciding this point is the time during the
trial at which it is proposed to call the witness.
The Court in Yerimia Kalimedo v. R., (1956), 23 E.A.C.A. 503, deprecated the
practice thereby a judge calls for police statements at the beginning of the trial.
Here it appeared that the statements had been used for cross-examination purposes.
The Court noted on p.504:-

“We have no doubt that the learned Judge asked to be

supplied with copies of statements made by the witnesses to
the police in the course of investigation solely with the
object of assisting the defence of the accused. We think it
right, however, is say that we deprecate any practice
whereby a trial Judge calls for the whole of such statements
of the beginning of a trial. If, during the course of the trial
a Judge has cause to believe that there may be material
discrepancy between a witness’s testimony and the
statement made in the course of investigation and the
accused is not legally represented, we see no objection to the
Judge calling for the statement in question and using it as
material to test the credibility of the witness. But it is well
known that such statements often contain inadmissible and
prejudicial matter and the Judge might well, as a matter of
precaution, first inquire of Crown Counsel whether any
embarrassment is likely to follow from his seeing such a
statement. If however, when the accused makes more than
one statement to the police, one in which he admits the
329
 offence and the other in which he denies it, in the view of
the Court of Appeal the prosecution should tender all the
statements made by the accused in order that the court shall
have all the relevant facts before it when it comes to decide
the vital point as to whether or not the contents of any of the
statements are true, and not leave it to the defence to call
evidence to prove and produce the second statement.”

Severance of statements

The question has arisen whether a court may admit those portions of a
statement which have been proved to be voluntary, and exclude those shown to be
involuntary. In Leunzi s/o Ngenje v. R. [1958] E.A.A 487 (C.A) the procedure of the
recording magistrate had been to issue the proper warning, listen to the statement
when made by the appellant without warning, listen to the statement when made by
the appellant without recording it, and then ask the appellant to report the
statement slowly while he recorded it. In the course of actually recording the
statements, the magistrate questioned two of the appellants in the later stages of
recording in order to elicit any relevant assertion made previously which had been
omitted on repetition of the statement. The trial Judge considered the questioning
improper and such as to through doubt upon the voluntary nature of that part of
their statements subsequent to the questioning, and the question was whether, if any
part of the statement of an accused person was not made voluntarily, the whole
statement lost its voluntary character and became inadmissible. The court
considered and distinguished between earlier authority (R. v. Nyumando s/o
Luhende, (1946), 15 E.A.C.A. 132 and Akutendesana d/o Hazidi v. R., (1956), 23

330
E.A.C.A. 487) in which the question had been alluded to by obiter or implication,
and concluded:-

“In such circumstances we can see no reason why the parts

should not be severable. It would be fair to regard the part
of the statement properly obtained as being in itself a
complete statement. It may be that in a particular case the
earlier and later parts of the statement are so
interconnected that it is difficult to separate the two, or
correctly to interpret one part without the other, and in
such case, no doubt, the whole statement should be excluded.
Each case must, however, depend on its own particular
facts.”

The Court of Appeal has also ruled that if a prison makes a voluntary statement
amounting to a confession both of the offence charged in the indictment and other
offences, that portion of the confession relating to the other offences should
generally not be put in evidence, but the matter depends on the nature of the case.
The test is whether the evidence is relevant, viz whether the statements made by the
prisoner in regard to the other offences committed by him bear on the question
whether he is or is not guilty of the offence charged in the indictment. Kamonde s/o
Ngaru v. R., (1954), 21 E.A.C.A. 314.

C. Inadmissible confessions not to be used for other purposes.

If a confession is ruled inadmissible, it should not be admitted in evidence for

the purpose of proving that the appellant had on a previous occasion made a
331
statement inconsistent with his defence. R. v. Esmil Huseinali Hasmani, (1936), 5
E.A.C.A. 49, followed in Khamis bin Mohaed El Mawiya v. R., (1944), 7 Z.L.R. 13.

Statements not confessions – exculpatory purposes

R. v. Wilbald s/o Tibanyendela, (1946), 15 E.A.C.A. 111, 117, held that while
the statements in question, not amounting to confessions owing to the inclusion of
exculpatory material, though not admissible against co-accused under s.30 I.B.A.,

“ could and should have been admitted in evidence as a

statement exculpating the maker from the charge. The fact
that an accused person has made a statement denying his
guilt very soon after he had been charged with the offence
may often be very relevant indeed as showing the
consistency of his conduct at that early date with the version
of the facts given by him at his trial ”.

Adoption of inadmissible statement statement

A statement can become admissible if it is subsequently adopted in a statement

which has been proved to have been made voluntarily, even though the initial
statement, standing by itself, is inadmissible. As was said in Kaluma v. R., [1968]
E.A. (C.A.) at pp. 352-353:-

“We agree that (beatings of the appellants in Uganda after arrest) would
probably have resulted in their Uganda statements being rejected as involuntary in
a trial in Uganda. But these two appellants were removed to Kenya. Neither has
332
made the slightest allegation of having been beaten or offered inducements by the
Kenya Police. Both were properly charged and cautioned, and made statements
either adopting or repeating their Uganda confessions. Oboo even went as far as
sending for a Kenya police officer, to whom he made a further statement as to whose
voluntary nature there can be no doubt. Even if each Uganda statement, standing
by itself, were inadmissible, we consider that such a statement can become
admissible if subsequently adopted in a statement which has been proved to have
been made voluntarily.”

Confessions leading to discovery.

31.Notwithstanding the provisions of sections 26, 28 and 29 of this Act, when
any fact is deposed to as discovered in consequence of information received
from a person accused of any offence, so much of such information, whether it
amounts to a confession or act, as relates distinctly to the fact thereby
discovered, may be proved.

The section seems to have been first considered in East Africa in 1923 in
R. v. Kwacharu wa Obaru, (1923), 9 E.A.L.R.98, where the court held that
where a person under arrest said to a policeman, “here is the place I killed the
woman”, and a dead body of a woman was discovered in the vicinity, the
statement was only admissible as a guarantee that the part of the statement
referring to the discovery was not false, SHERIDAN, J. discussed the meaning
of the section (p.100) saying:-

“ the Section means that the fact that while

information leading to a discovery may when looked
upon as a whole amount to a confession of guilt
333
 nevertheless such part of it as leads to the act of
discovery may be given in evidence so far as it proves
corroborative circumstances. The principle embodied
in Section 27 (I.E.A.) is exactly the principle of the
English law of Evidence on the point (citing
TAYLOR ON EVIDENCE (11th Edn.), Vol. I, s.902,
p.614) the finding of the article is a guarantee that
the part of the confession referring to its discovery is
not false, although there is a possibility that evidence
of a statement might be fabricated for the purpose of
connecting the prisoner with the discovery. However
that may be, the words of the Section are sufficiently
clear to allow of evidence of such a statement being
given and it is a matter for the court to sift whether in
all the circumstances of the case the evidence is true
or false. In short it is a matter of weight not
admissibility.”

The Court in R. v. Tomu s/o Ngulombe, (1942), 10 E.A.C.A. 54, referred

to and approved of the commentaries in SARKAR, (6th Edn., p.245) stating
that the reason of the rule for the admissibility of a confessional statement
which is otherwise inadmissible is its confirmation of subsequent facts. (The
passage is now found on p.284 of the 11th Edn.). The Court also relied on the
following passage from SARKAR, p.250 of the 6th Edn.:-

“The word ‘discovered’ is used in a peculiar sense.

Thus when a man confesses to the Police that he
334
 murdered another person, the fact that he murdered
is not discovered by the statement. The test is that the
fact discovered in the sense that the proof of the
existence of that fact no longer rests on the credibility
of the accused’s statements but rests on the credibility
of the witnesses who depose to the existence of that
fact.”
The court considered whether evidence of the accused which an
Assistant Inspector of Police had marked on a plan was
admissible under the section. The Court summarized the
evidence and ruling by saying:-

“ a statement by the accused in the following terms:

‘Deceased was standing at point A when I shot the
first arrow and at point B when I shot her with the
second arrow’. The fact that the police officer
obtained knowledge that the arrows were fired while
deceased was standing at A and B is not a fact
discovered within the meaning of the section. What is
required under the section to let in as evidence any
part of the accused's statement is the discovery of a
fact which confirms the truth of the accused’s
statement that he fired the arrows at a particular
place. For example, the finding of an arrow at or
near the place where the accused said he fired it.
Were any other meaning to be given to section 27 the
result would be to render sections 25 and 26
335
 practically a dead letter.” (from pp.54 – 55 of the
decision).

Consequently the evidence was not admissible and could not constitute
corroboration for a retracted confession.

In R. v. Sawe arap Kurget, (1939), 18 K.L.R. (2) 166, an inadmissible

confession had been made to a chief, contained in which were certain
statements which led to discovery of stolen animals; the statements were held
admissible in evidence. Similarly, in Mwangi s/o Njoroge v. R., (1952), 21
E.A.C.A. 377, it was held , semble, that the discovery of “the article”, would,
by s.27 I.E.A., have made admissible some parts of statements otherwise
inadmissible.

a. When may the statement be made?

Section 27 I.E.A. read:-

“ in consequence of information received from a
person accused of any offence in the custody of a
police officer, ”.

The words “in the custody of a police officer” have been excluded in s.31
K.B.A. as enacted, resulting in difficulties in interpretation. The problem
appears to have been considered only in a ruling in a trial within a trial in the
unreported case of R. v. Thiongo Muna and Others, K. sup. St. Cr. Case No.
192/1964, which, of course, is not authority, but is illustrative of the problem
and presents the line of reasoning.
336
 The problem is whether the section as it now reads makes admissible
under s.31 statements made by a person not in police custody and before he is
charged with an offence, though he is accused of an offence at the trial where
the statement is tendered in evidence. Here one of the accused had said
something which the prosecution and the Court accepted as a confession
within the meaning of s.25 and therefore not admissible in evidence because
made to a person below the required rank. TREVELYAN, J. considered the
words “accused of any offence” in conjunction with the same words used in
s.29 dealing with confessions to police officers. Relying upon the authorities
which stated that the words in s.27that a confession is not admissible unless
the minor was not only in custody at the time but accused as well, he declined
to accept the argument that the words “accused of any offence” related to the
trial and had the same meaning as the words in s.29, i.e. that deletion of the
words “in custody if a police officer” changed the meaning of the section. In
his ruling the learned Judge said:-

“I readily confess that I feel that there is some illogic

in the rule and that it is difficult to see why there
should be the distinction as to whether or not a person
has been accused but, in my view, the distinction is
there and I must, however reluctantly, recognize it.
Moreover, Mr. Hobbs readily ceded that the words
were capable of more than one construction (The
section) being possible of bearing the construction to
which I refereed, and for the years having been
interpreted to bear that construction I do not consider
337
 that I am justified in departing from it . when
one bears in mind that the Indian section 25 is
absolute in purport and that section 27 is a proviso
thereto – that our section 29 is similarly absolute and
that section 31 is a proviso thereto, to support the
argument put forward by Mr. Hobbs would be to
reduce that absoluteness yet more. That, I believe, is
unjustifiable unless the proviso were more specific in
form and only possible of one construction. As it is,
for many years ‘accused of any offence’ in section 27
of the Indian Act has referred to the time when the
statement was made. I cannot give the words in
section 31 of our Act any different meaning much as I
would have liked to do so.”
An interesting point to note is the firm opinion of DESAI, J. noted in
SARKAR at p.288 discussing the judgment in Deonman v. S., A.1960, A.I,
dissenting judgment, that the distinction between a person in custody and a
person not in custody is purely accidental, i.e. that the draftsman who copied
s.150 of the Indian C.P.C. when the section was bodily transferred to the I.E.A.
in 1872, omitted the word “or”, with the result that the phrase “a person
accused of any offence, or in the custody of a police officer” in s.150 I.C.P.C.
read “ a person accused of any offence, in the I.E.A.. The judgment of
TRLVELYAN, J. is open to criticism.

b. Procedural difficulties under s.37

338
 AINLEY, C.J. had occasion to note the procedural difficulties
encountered in application of the section in Wambua Musai v.R. KA. Ct. Cr.
App. No.1086/1966 (unreported), during which a prosecution witness let slip
the information “The accused admitted stealing my goods and he offered to
take us where my stolen goods had been hidden. He took us to a shamba and
pointed out a bush ”, etc. The learned Chief Justice said:-

It is clear that the words ‘so much of such information as related distinctly
to the fact thereby discovered’ may impose a stringent limitation on what a
witness who is giving an account of ‘the information’ may say. Witnesses who
have been required to swear to tell the whole truth become confused when
told in effect that they may tell part of what an accused told them, but not all,
and on occasion it is well nigh impossible to prevent a witness from saying too
much once he is allowed to embark on an account of the accused’s words. So
great a is that risk, and so difficult and indeed so distasteful is the editing of a
witness’s evidence that in the majority of cases a wise prosecutor will stop the
witness at ‘he told me something’ and will then go on at once to elicit what the
witness did and what he found in consequence of what he was told the
‘information’ received from the appellant could probably have been reduced
to this form ‘I stole the property of (X). I will take you to the place where (X’s)
goods are hidden’. It is reasonably clear, I think, that under the provisions of
the section only the second half of the statement was admissible I will not,
in this judgement, discuss whether, had the appellant said ‘My share of the
loot is in younder us’ this should have been out to ‘ the loot is in younder
bush’ The highly artificial approach to evidence adopted by the Legislature
in Part III of the Evidence Act prompts such questions and many very nice

339
questions of that nature will provide abundant food for argument if
prosecutors insist on raising them.”

Confessions implicating co-accused

32.(1) When more persons than one are being tried

jointly for the same offence and a confession made by
one of such persons affecting himself and some other
of such persons is proved, the court may take the
confession into consideration as against such other
person as well as the person who made the confession.
(2). In this section “confession” means any words or
conduct, or combination of words and conduct, which
has the effect of admitting in terms either an offence
or substantially all the facts which constitute an
offence;
“Offence” includes the abetment of, or an attempt to
commit the offence.
..
The section is, for all intents and purposes, interpreted uniformly
throughout East Africa, for the definition of a confession as found in subs. (2)
is the same as that found in Swami’s case see p.244, supra. It is necessary to
keep in mind the distinction between the definition of confession in this section
and the definition in s.25, for a confession which might be admissible as
against the accused under s.25 may not be one which may be taken into
consideration against a co-accused under s.31, unless it also meets the
requirements of sbs.(2).
340
 Statements not amounting to confession either under the definition in
Swami’s case as incorporated in s.32(2) or under the definition in s.25 are not
evidence against any c0-accused insofar as the statement may implicate them.
See, for example, R. V. Sikila s/o Tukuzant and Another, (19.. ) 8 E..A.C.A. 91,
R.V. Peter Mukasa and Another , (1946), Others, (1946),
13 E.A.CA. 127, Ibrahim s/o Luaomia bin Ntande v. R. (1952), 20 E.A.C.A.
183; Njuguna Kagari v. R., (1952), 20 E.A.C.A. 32 Odundo s/oAnyango and
Others v. R., T. H. Ct. Cr. App. 5-M-67, Tanzania H. Ct. Digest, Vol.1, No.2,
No.66.

If, however, an accused, far from seeking to exculpate himself, “tars

himself with the same brush”, and the statement is sufficient by itself to
justify the conviction of the maker of the offence for which he is being tried
jointly with the co-accused, the statement may be taken into consideration
against the co-accused. R. v. Wadingombe bin Mkwanda and Others, 1941), 8
E.A.C.A. 33; Miligwa s/o Mwinje and Another v. R., (1952), 20 E.A.C.A. 255.

The reason is given in Wadingombe’s case:-

“The distinction between the two cases is found in the

fact that by making a real unqualified confession the
person who makes it has exposed himself to the pains
and penalties prescribed for the offence and we have
this guarantee, quantuvalent, for the truth of the
statement. This is especially where the confession is
made, as in the present case, under the protection of

341
 the court. It may be a weak guarantee, but it is some
guarantee.”

An unsworn statement made by a co-accused from the witness but

cannot be taken into consideration against a co-accused; Patrisi Ozia v. R.,
[1957] E.A. 36 (C.A); nor can these unsworn statements or statements not
amounting to confessions be used against a co-accused to corroborate the
confession of the accused where corroboration is required; Njuguna Kagari v.
R., (1952) , 20 E.A.C.A. 327. If, on the other hand, a co-accused gives evidence
on oath, such evidence may be used, although it must be regarded with
extreme caution; Patrisi Ozia’s case, supra. The only way in which such a
confession as is made by a co-accused can be “taken into consideration as
evidence; Wadingombe’s case, and it is strange that such an unsworn
statement made extra-judicially may be so “taken into consideration” against
a co-accused if it implicates the maker, but that a similar unsworn statement,
also implicating the maker and amounting to a confession; cannot be taken
into consideration against co-accused if made from the witness box in open
court. The Court of Appeal has, however, drawn a distinction between a
statement made from the witness box, and a prior extra-judicial confession
implicating co-accused to which the accused made no reference in the
unsworn statement, impliedly retracting it; the Court called the unsworn
statement “relatively valueless” in R.v. Kenga s/o Kayaa and Another, (1943),
10 E.A.C.A. 123.

The confession of an accused which implicates a co-accused cannot be

used as the basis of the prosecution case against a co-accused; but only lends
assurance to other evidence against him, evidence which only falls short by a
342
narrow margin of the standard of proof necessary for conviction; Anyuma s/o
Omolo and Another v. R., (1952), 20 E.A.C.A. 218; Karaya s/o Njonji and
Others v. R., (1952) 20 E.A.C.A 324. Thus the question, assuming that the
confession can be taken into consideration against the co-accused, is one of
weight, which is lessened where the accused obviously intends to implicated
his co-accused and not himself, although he actually does fully implicate
himself. Anyuma and Maraya’s cases. The courts have compared the
situation with that of an accomplice, wherein, even though the evidence is
given an oath, it is generally speaking unsafe to convict; see R. v. Mikaami
and Others, (1920), 2 U.L.R. 359; R.V. Ramji Hirji and Others, (1946), 13
E.A.C.A. 127; R.v. Juma bin Abdulla and another, (1934), 16 K.L.R.(2) 117,
122; Anyuma’s case.

The general rule then is that it is incorrect to regard a confession mad

by one accused in extra-judicial statement as a basis for a case against his co-
accused and to held that with some corroboration it is safe to convict. What is
needed is some independent evidence which, when linked with and supported
by the confession of the co-accused removes beyond any reasonable doubt the
question of innocence of the co-accused. See Karaya s/o Njonji and Others v.
R. (1952), 20 E.A.C.A. 322; Anyuma’s case, supra, R. v. .. wa Wanduru,
(1967)
.. R. v. Juma
bin Abdulla and Another (1934), 16 K.L.R. (2)117.
While a retracted confession can be taken into consideration against a
co-accused, the need for corroboration is not as great as where the confession
has not been retracted, Anyuma’s case.

343
 It should be noted that the co-accused must be on trial “for the same
offence”. In Musa Luinda v. R., [1960] E.A.C.A. 470 (C.A.)as pp.472 – 477,
there is a complete discussion of the issue in a case where one accused was
being tried for theft and the other for receiving, and the Court held that this
was not sufficient to satisfy the section. Also Kanyamosi v. .. [1967] E.A.
537 .

An interesting situation arose in R. v. Kaya . S/o Mkuyu and Others,

1943, 10 E.A.C.A. 117, where the appellant has against him only the evidence
of the confessions of co-accused and an inadmissible statement by the
deceased made to the police – inadmissible inasmuch as in this case the cause
of the deceased’s death was not in issue, s.32 I.E.A.. The Court pointed out
the need for corroboration and discussed why the dying declaration was not
admissible, and for the reasons set forth in .. bin Kasanga v. R., (1938), 5
E.A.C.A 20, held that there was no corroboration and released the appellant
insofar as this charge was concerned.
Where the only evidence against the accused was a statement made by a
co-accused in the presence of the accused to a police officer that he had
obtained stolen property from the accused, which the accused denied, it was
held in R. v. Ngariya s/o Otyano and Others (1919), 2 U.L.R. 305, that, while
the evidence was admissible with reference to conduct and demeanor under
s.8 U.E.O., in view of the accused’s explicit denial, it was of no value towards
establishing the truth of the statement made by the co-accused and no proof of
the guilt of the accused.

Inadmissible confessions may now be further used

344
 In Dala d/o Mwayi v. R., (1956), 23 E.A.C.A. 612, after a statement by the
accused had been ruled inadmissible because it was not taken in accordance
with the Judges’ Rules, counsel for the prosecution was allowed, over
objection, to cross-examine the accused on the statement while she was giving
evidence on oath. The Court ruled that this was highly prejudicial, and said:-

“In our view, statement made by a prisoner under

arrest is either admissible or it is not admissible.
If it is not admissible, nothing more ought to be heard
of it, and it is quite a mistake to think that a document
can be made admissible in evidence which is
otherwise inadmissible simply because it is put to a
person in cross-examination,” (emphasis added).
Because certain incriminating parts of the inadmissible statement are thereby
put into evidence. Similarly, in Yezefu Mukasa v. R., (1951), 18 E.A.C.A. 321,
there was a statement which was inadmissible because not made to a police
officer of the required rank. The prosecution sought to enter from the
Occurrence Book the statement which the Corporal had recorded at that time.
The Court held that there was nothing in s.5 U.E.O. (relevant facts) or s.33
(entries in public or other books, registers or records) which could be
construed as modifying the requirements of s.24 U.E.O. (confessions to police
officers), and that to hold otherwise would be a dangerous paring down of the
requirements for the admission of confessions.

345
ADMISSIONS

Under the Evidence Act an admission is defined as a statement oral or written

which suggests an inference to a fact in issue or a relevant fact made by one of the
parties to the proceedings.
Admissions are classified into
1. Formal Admissions;
2. Informal Admissions;

Informal admissions are those admissions that are made before any proceedings are
anticipated and this is covered at Section 17 to 24 of the Evidence Act.

Formal admissions are made in the context of specific proceedings and the effect
of formal admissions is that they dispense with proof with regard to the be made.
They will be made in answer to a notice to admit and they could also be made by
Affidavit. The distinction between formal admissions is that formal admissions are
made with respect to proceedings while informal are made with respect to
anticipated proceedings.

In the area of criminal law, admissions will be under what is called confessions.
Sections 25 –32 deal with confessions.

According to Section 24 admissions are not conclusive proof of the matters that
they admit but they could operate as estoppels and many writers on S. 24 wonder
346
why the legislators put that provision knowing that under Common Law
Admissions if admitted are conclusive proof. But essentially we are saying even
though they are not conclusive they amount to estoppel. The idea of estoppel in
admission is to prevent a person to assert things that are at variance with things
they had admitted before.

Section 61 deals with facts admitted in Civil Proceedings is to the effect that no
fact need to be proved the main principle is that once you admit certain facts,
you will not be required to prove those facts but unless the court may by discretion
require those facts to be proved.

347
 ADMISSION AND QUESTIONS

PART 1 - ADMISSION

The general definition of an admission is found in s. 17 K.E.A., which

must be read with ss 18 - 20, which refer to specific types of admissions.
Section 21 - 24 deal with proof and effect of admissions.

17. An admission is a statement, oral or documentary, which

suggest any inference to a fact in issue or relevant fact, and which
is made by any of the persons in the circumstances herein after
mentioned.

“Admissions. Statements, oral written, or inferred from

conduct, made by or on behalf of a party to a suit, and
admissible in evidence, if relevant as against this interest.
They are either formal or informal. (1) Formal admission for
the purpose of the trial may be made of pleadings, as e.g
where a contract and a breach is admitted, but infancy, or
fraud, is alleged in defence; on a notice to admit any
particular document or fact... in answer to interrogatories, or
by solicitor or counsel.

348
 (2) Informal admissions may be made before or during the
proceedings. In criminal proceedings admission may be plea
of guilty, or in the form of a confession”.
OSBORN, THE CONCISE LAW DICTIONARY.

PROM PHIPSON’S MANUAL OF EVIDENCE (8th Edn) pp 126 - 127:-

“Statements made by a party is to proceedings or by some person

having an identity of interest with him are admissible against but
not in favour of such a party to prove the truth of the facts stated.
The reason for this is said to be that it may be presumed that no
man would declare anything against himself unless it were true.
Although this presumption does not adequately explain all the
cases (e.g., those where a statement was received as an admission
although not known by the party making it to be against his
interest), the converse proposition that there is no presumption of
truth as regards statements in his own favour ensures the
rejection of such statements in proof of the facts stated. If it were
not so, every man would seek to improve his own position in
pending or possible litigation by making statements in his own
favour. However, this does not mean that a man’s previous
statements are never admissible in his they may be admitted as
part of the res gestae, or to prove consistency or goo faith where
such are relevant...

EXAMPLE

349
 Thus, if A sues B for the price of goods supplied, and entry
in A’s book that he debited C with the goods is admissible against
A to show that it was B who contracted the debt; .. but an entry
debiting B is not admissible in A’s favour to show that B
contracted the debt:...

The circumstances of an admission may always be proved to

impeach or enhance its credibility. Thus it may (unless amounting to an
estoppel) be shown by the party against whom it is tendered to be
untrue, or made under a mistake of law or fact or uttered in ignorance,
levity, or increases with the deliberation of the speaker and the
solemnity of the occasion”.

The whole statement in which the admission is contained should be

admitted in evidence. The Court in Zarina A Sharrif v Noshir P. Setha (1963)
E.A 239 (C.A. at pp 241 considered the matter in a case dealing with a
deposition in a criminal case. At the civil trial the appellants put in evidence
an extra judicial statement made by a respondent to the police in connection
with the accident which was the subject matter of the suit and his deposition
made before a magistrate in a criminal case in which the other respondent
was charged with two offfences arising out of the accident.
The Court said:-

“The general rule is that admissions by a party tot he proceedings are

admissible against, but not in favour of, such party, to prove the truth of
the facts stated. But, when an admission is tendered against a party, he
is entitled to have proved, as part of him adversary’s case, so much of
350
 the whole statement, or document containing the admission, as is
necessary to explain the admission although such other parts may be
favourable to himself. The usual practice is to tender the whole
statement or document containing the admission.

I accpet as a correct statement principle the following passage from

SARKAR ON EVIDENCE (10th Edn), p. 168:

“The first important rule with regard to admissions is, that the
whole statement containing the admission must be taken together;
for though some part of it may be favourable to the party and the
object is only to ascertain what he has conceded against himself
and what may therefore be presumed to be true, yet unless the
whole is received, the true meaning of the part which is evidence
against him, cannot be ascertained.... But though the whole of
what he said at the same time, and relating to the same subject
must be given in evidence, it does not follow that all the parts of
the statement should be regarde as equally deserving to crudity”.

c. Statements by party to suit or agent or interest person

18(1) Statements made by a party to the proceedings or by an agent to any

such party, whom the court regards in circumstances of the case as expressly
or impliedly authorized by him to make them, are admissions.
(2) Statements made by parties to suits, suing or sued in a
representative character, are not admission unless they were made while the
party making them held that character.
351
 (3)Statements made by -
(a) persons who have any proprietary pr pecuniary interest in the
subject matter of the proceeding, and who make the statement in the
character of persons interested or
(b) persons from whom the parties to a suit have derived their interest
in the subject matter of the suit, are admissions in they are made during the
continuance of interest of the persons making the statements.
****
OSBORN defines “agent” as follows:-

“A person employed to act on behalf of another. An act of an agent,

done within the scope of his authority, binds his principal. Agents are:-

(1) Universal - Appointed to act for the principal for all matter,
e.g. where a party gives another a universal power of attorney.
(2) General - Appointed to A act in transactions of a class, e.g, a
banker, solicitor. The scope of authority of such agent is the authority
usually possessed by such agents, unless notice is given to third parties
of some limitation.
(3) Special - Appointed for one particular purpose. The agent’s
scope of authority is the actual authority given him”

Before the admission can operate against the party to the suit, the
agency relationship must be established, and the statement must be shown to
fall within the scope of the agent’s employment, since the rule admitting the
statement is dependent upon the agent’s legal identity with the principal.

352
 By virtue of subs. (2) parties suing or sued in a representative capacity
may be held to have made admissions provided they were main while the
party held that capacity or representative character. Thus a statement by a
trustee could not be an admission if made before his appointment.

Persons jointly interested in the subject matter of the suit may make
admissions go long as the statements were made while the person was acting
in that character. In order for the statement to be received in evidence, it
must be shown that the statement was made during the continuance of the
interest. This subsection includes such relationships as partners, joint
contractors, co-sharers, co-defendants etc. It is important that the person
have a legal identify of interest, for if their interest are conflicting, the
statement of one is not receivable in evidence as an admission against the
other (sub.
The persons from whom the parties have derived their interest in
the subject matter of the suit may also make admissions, on the ground of
private; e.g the statement of a previous owner of property if made at a date
before the transfer of the property would be an admission, whereas any
statement made after he ceased to have any interest in the property would not
be an admission as against the person in possession. (subs 3(b).

Note the conditions precedent to the admission of the evidence of the

statement constituting the admission.

In a criminal case, the statement of an agent is not an admission when

the question of the principals criminality is in issue. SARKAR, quoting from
authority, p. 292:-
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 “An admission by an agent is never evidence in criminal as it
sometimes i.e in civil cases. In civil cases, the admission of and
agent made in the courts of his employment and in accordance
with his duty is binding upon the principal. But this has never
been extended to criminal cases. When a party is charged with
the commission of an offence through the instrumentality of his
agent, then it becomes necessary to prove the acts of his agent;
and in some cases where the agent is dead, his admission is the
best evidence of these acts which can be produced.”

An admission by an advocate on a point of law is not binding on his

client. SARKAR (p. 186) says:-

“An erroneous admission on a point of law is not an admission of

a thing so as to make the admission a matter of estoppel and the
court is not precluded from deciding the rights of the parties on a
true view of the law”.

The rule is borne out by Pushpa v Fleet Transport Co., (1960) E.A. 1025 (C.A.)
where the court said:-

“... the admission was however on a matter of law and if it was

incorrect it was not binding on the appellant.”

Admission may act as estoppels; see Chapter on, infra

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 As to the effect and weight of admission: evidence or oral admissions
ought always to be received with great caution, as it is subject to mistake;
either the party himself may have been misinformed or he may not have
expressed what he meant to say with clarity. It is also possible that the
witness misunderstood what was said. Once the admission has been received
in evidence, the effect is to shift the burden of proof to the party who made the
admission to prove that it is not true, if this is the case, or explain it away. It
is presumed to be true until disproved, but this is a rebuttable presumption.

A written admission in a document should be prrma facie accepted as

true as against the person who executed the document unless it can be shown
to be false by independent evidence.

b. Statements by persons whose position or liability must be proved as against

a party to the suit.

19. Statements made by persons whose position or liability it is

necesseary to prove as against any party to a suit, are admissions if such
statements would be admissible as against such persons in relation to
such position or liability in a suit brought by or against them, and if
they are made whilst the person making them occupies such position or
is subject to such liability.
********

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 In essence, this section, framed in obscure terms, means that if the
liability of a party to a suit depends upon the liability of one not a party to the
suit, often an admission by the stranger amounts to an admission by the party.
In this sense, since the section deals with statements by non parties, not
connected to a party by the type of legal relationship noted in s. 18, it is an
exception to the general rule of s. 18.

Example:

The question is whether a horse sold by A to B is sound. A says to be:

Go and ask C: C knows all about it.” C’s statement is in admission.

This in another exception to the general rule in s. 18, for the statement
comes not from a third person, a stranger to the suit. The reason is that if a
party expressly refers to a third person for information, he approves of what
the third person will say in anticipation, and adopts the statement of the third
person as his own, providing, of course, that the statements are strictly within
the subject matter in relation to which the references is made.

d. Proof of admission as against persons making them, and by or on their

behalf.

21. Subject to the provisions of this Act, an admission may be proved as

against the person who makes it or his representative in interest; but an
admission cannot be proved by or on behalf of the person who makes it or by
his representative in interest, except in the following cases -

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 (a) When it is of such a nature that, if the person making it were dead,
it would be admissible as between third persons under section 33 of this Act;
(b) when it consists of a statement of the existence of any state of mind
or body, relevant or in issue, made at or about the time when such state of
mind or body existed, and is accompanied by conduct rendering its falsehood
improbably;
(c) if it is relevant otherwise than as an admission.
*******

While an admission may be proved as against the person who made it,
or his representative in interest, it is admissible in his behalf only in those
instances which fall under the provisions of sub. (a) through (c) for to allow
persons to admit evidence of statements made in their own behalf other than
in the specific instances covered in the Act (e.g. for purposes of consistency, s.
165) would allow a party to support his own case by making statements
favourable to himself in front of witnesses which would then be admissible in
evidence.

If, however, the statement is of such a nature that it would be admissible

under s. 33 if the maker were dead, it may be admitted on behalf of the maker.
(subs. (a)

Example:-

A, the captain of a ship, is tried for casting her away. Evidence is given
to show that the ship was taken out of her proper course. A produces a book
kept by him in the ordinary course of his business showing observations
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alleged to have been taken by him from day to day and indicating that the
ship was not taken out of her proper court. A may prove these statements, for
they would be admissible as between third parties if they were dead under s.
33(b), statements made in the court or business.

To make statements as to the existence of any state of mind or body

admissible under subs. (b) on behalf of the maker, the admission must be
accompanied by conduct rendering the falsehood of the admission improbable.
(Note that s. 14, also dealing with state of mind or body, merely refers to
relevancy; see pp. 16 et seq.)

Examples:-

A is accused of receiving stolen goods knowing them to be a stolen. He

offers to prove these statements, although they are admissions, because they
are explanatory of conduct influenced by the acts in issue.

A is accused of fraudulently having in his possession counterfeit coin

which he knew to be counterfeit. He offers to prove that he asked a skillful
person to examine the coin as he doubted whether it was counterfeit or not,
and that the person examine it and told him it was genuine. A may prove
these facts for the reasons stated in the previous illustration.

If the statement is relevant other than as an admission, it is also

admissible in favour of the maker; see discussion ss. 6 - 15 dealing with
relevancy, Chapter 1

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e. Oral admissions as to the contents of documents.

22. Oral admissions as to the contents of a document may not be proved unless
and until the party proposing to prove them shows that he is entitled to give
secondary evidence of the contents of such document under the provisions of
this Act or unless the genuiness of a document produced is in question
*****
As to the proof of documents, see Chapter VII, p. 179 et seq. dealing
with dealing with primary and secondary evidence.

Section 22 deals with the situation where a party or representative in

interest makes an oral admission concerning the contents of a document, and
the opposing party wishes to give evidence concerning the admission without
production of the document itself. Under these circumstances there are only
two circumstances where evidence as to the admission of the contents of the
document may be admitted in evidence:-

1. the genuiness of the document produced is in question i.e. where the

opposing party has produced a document but has made an oral admissions, a
question which the party tendering the admission .... to prove in arguing
against its admission.

f. Admissions made without prejudice in civil cases.

23.(1) In civil cases no admission may be proved if it is made either upon an

express condition that evidence of it is not to be given or in circumstances

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from which the court can infer that the parties agreed together that evidence
of it should not be given.
(2) Nothing in subsection (10 of this section shall be taken to exempt
any advocate from giving evidence of any matter which he may be compelled
to give evidence under section 134 of this Act.
******

It is a basic aim of the law to settle disputes amicable, without the

necessity or a court case, and to further this end the parties, during
preliminary negotiations, will of times make admission and reveal facts which
they would not agree to in court. If these confidences were later freely
admissible in evidence, the result would be that it would soon become
impossible to secure amicable pre-trial settlements of civil disputes. Hence
these admissions are protected by s. 23.

SARKAR on p. 214 states the principle as followes:

“ In civil cases if an admission of liability is made by a party

upon an express condition that evidence of such admission should
not be given, that it has made for the purpose of buying peace
and settling disputes by compromise instead of legal proceedings;
or it an admission is made under circumstances from which the
court can infer that the parties agreed together that evidence or it
should not be given such admission is not relevant and is
protected by the section”.

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 Note that the I.E.A. used the phrase “no admission is relevant while the
K.E.A. altered the language of the section to read “no admission may be
proved” laying the stress on in admisability rather than on relevancy.

The application of the section is limited to those cases where there is a

dispute or negotiations and in which terms have been offered to settle the
dispute. There fore in other circumstances a writer cannot by putting such
terms as “without prejudice” in the letter or sending it “private” or
confidential” gain the protection of the section except where the dispute and
negotiation situation exists. Thus there are two circumstances which will give
rise to application of the section:-

1. an express condition that evidence of the admission is not to be given;

2. circumstances from which the court can infer that the parties agreed
together that evidence of the admission was not to be given.

Whether the circumstances referred to in (2) exists is a question of fact

for the Court.

For privilege of advocates, referred to in (2) exist is a question of fact for

the Court.

For privilege of advocates, referred to in subs. (2) see pp 116 at seq. If,
however, the advocate’s privilege is not applicable in the particular
circumstances of the case and the advocate may be compelled to reveal
communications, he is not exempted by s. 23(2).

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g. Admissions may act as estoppels.

24. Admissions are not conclusive proof of the matters admitted but
they may operate an estoppels under the provisions hereinafter
contained.
***
See chapter on Estoppel, infra

362
 CORROBORATION

The evidence Act does not define corroboration. But the term refers to evidence
which supports some other evidence that an accused has committed the offence
with which he is being charged. It is evidence which is relevant, admissible,
credible and independent and which implicates the accused person in a material
particular. And this is definition given by Keane in his book, The Modern Law of
Evidence, 1994 Edition

In the case of DPP v Kilbourne 91973) 1 ALL ER 440; (1973) AC 720, Lord Reid
asserts that ‘there is nothing technical in the idea of corroboration when in the
ordinary affairs of life one is doubtful whether or not to believe a particular
statement. One naturally looks to see whether it fits in with other statements or
circumstances relating to the statement. The better it fits in, the more one is
inclined to believe it. The doubted statement is corroborated to a greater or lesser
extent by the other statements or circumstances with which it fits in.”

And he goes on to say that, “Any risk of conviction of an innocent person is

lessened if conviction is based upon the test of more than one acceptable witness.

Essentially what all we are trying to do here is to define what corroboration is. And
we are saying that it is evidence which is offered to strengthen other evidence. And
all these things we are saying about it fitting in with others is basically fortifying
that statement. And the reason that you would need fortification for evidence is if
that particular evidence is given in dubious circumstances or it is given by a

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category of witnesses who may not be very creditworthy. And basically that is just
the context within which we discussing this issue.

What were the facts in the DPP v Kilbourne? And this will help us to see instances
in which the need for corroboration might arise. The respondent was convicted of
one offence of buggery, another offence of attempted buggery and five counts of
indecent assault on two groups of boys. The first four counts related to offences in
1970 and it was with regard to one group of boys and the second set, that is the
three others, were committed in 1971 against a second group of boys. The defence
put forward was one of innocent association. In essence what the accused was
saying is that he didn’t indecently assault the boys; he didn’t behave towards them
in an untoward manner, that he innocently associated with them.

The judge directed the jury that they would be entitled to take the uncorroborated
evidence of the second group of boys if they were satisfied that the boys were
speaking the truth as supporting evidence given by the first group of boys. So here
you have two sets of evidence. The one set given by one group of boys. Remember
we said that offence was committed in 1970, the other one in 1971. An what the
judge is telling the jury here is that if they are convinced that the second group of
boys are telling the truth, then they can use that evidence to support the evidence
that was given by the first group of boys. In essence that the evidence of the second
group of boys could corroborate the evidence of the first group of boys.

The accused was convicted. The Court of Appeal however quashed the conviction
and the
matter went to the House of Lords. And the House of Lords held that the judge’s
direction was proper and the respondent was properly convicted since the sworn
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evidence of a child victim could be corroborated by evidence of another child
victim of alleged similar misconduct. And this is so where the evidence is
admissible and indicative of the accused person’s guilt.

I should point out that this is not the position in this country. In this country the
evidence of one child cannot corroborate the evidence of another child. The
Criminal Law Amendment Bill, which I believe has been published again this year,
seeks to get to the position where the evidence of a child victim can be
corroborated by the evidence of another child victim. And this has been as a result
of campaigns by different actors and especially FIDA in a case they had where a
man was accused of having defiled his twin daughters and the court ruled that the
two girls could not corroborate each other’s evidence, which meant that because
there was no other independent testimony to fortify the evidence of the one child or
the other child, the accused could not be convicted . The evidence was seen as not
sufficient to sustain a conviction. Of course other issues were raised in that case as
to whether you could look for corroboration in other circumstances. For instance,
there was evidence that the two girls were found to have a venereal disease that
their father had which would offer the corroboration, other than just the evidence
of the children.

In the same case, Lord Hailsham stated that the word corroboration means no more
than evidence tending to corroborate other evidence. And he goes on to says that in
his view it is evidence which is partly admissible and also relevant. It is evidence
that is credible and relevant. And it is evidence which if believed confirms the
available evidence in the required parts. And here the assumption is that not all
evidence is going to need corroboration. But the evidence that needs corroboration,
the evidence that is going to corroborate it has to be evidence that is admissible and
365
evidence that is relevant and also it has to be evidence that is believed confirms
what evidence you have before the court. It is supposed to confirm support or
strengthen other evidence rendering that other evidence more probable than it is
standing on its own.

The same point on what corroboration is, is discussed in DPP v Kilbourne (1973)
1 ALL ER 440; (1973) AC 720 (1916) 2 KB 658, where Chief Justice Read says,
“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 had the evidence that the crime has been committed but also
that the prisoner committed it.”

And right there then in the rendition of DPP v Kilbourne, R v Baskerville and in
think in DPP v Hester, right there you have a clear definition of what
corroboration is.

So will now move to discuss what the rationale is. But even before the court goes
on to answer the question whether evidence needs to be corroborated, it has to
consider firstly whether the evidence it has before it is credible. Before you begin
to look for fortifying, strengthening, confirming evidence, you have to be
convinced that the evidence you have before you is credible because no amount of
corroboration can render incredible evidence credible. That is a principle of law
and you should look the case of R v Jipkering arap Kosgey. It is authority for the
proposition that no amount of corroboration would render incredible evidence
credible. So the court has first to inquire as to whether the evidence that it has

366
before it is credible before it even goes on to look for fortifying evidence,
strengthening or confirming evidence.

Secondly, the corroborating evidence must also be credible. It should be credible.

And again of course remember we said it has to be independent. It has to be
credible and independent and should not be mere repetition of the evidence on
record. And here again the principle to look out for is the principle at section 143
of the Evidence Act to the effect that “no particular number of witnesses shall, in
the absence of any provision of law to the contrary, be required for the proof of any
fact.”

So essentially you can prove your case by the evidence of one witness. You do not
need a requisite or specific number of witnesses. That being the case then you do
not just come to court to rehash evidence that is has been stated before. The
evidence that is coming in to corroborate has to be independent, it has to be
credible on its own. It shouldn’t be a mere repetition of the evidence on record.

And thirdly, except where statutes provide otherwise, each case stands on its own
facts and it is therefore not possible to say in advance which evidence will go to
corroborate the other in a particular case. Because every case except where a
statute expressly says otherwise, will stand on its own facts. It is not possible to
predetermine or to know in advance which evidence will go to corroborate the
other in a particular case. It is all a matter of practice and experience, turning on
the facts of each particular case.

As a general rule, there is no requirement that evidence be corroborated or that a

tribunal of fact be warned of the danger of acting on uncorroborated evidence. So
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as a generally rule really there is no requirement for corroboration. And remember
again we are going back to the principle at section 143 that there is no requirement
that you bring in the evidence of a specific number of witnesses. You can just have
one witness carrying the day.

A person is free to adduce evidence corroborating other evidence tendered and this
may help especially where their case is weak. But the court has the jurisdiction to
prevent administration of superfluous evidence for reason of cost and time.
Essentially what we are saying is, as a general rule there is no requirement for
corroboration or that the judge should warn the jury that it shouldn’t convict, or on
the dangers of convicting on corroborated evidence. That being said, a person can
bring in evidence to strengthen other evidence tendered especially where their case
is weak. But even in those circumstances, remember the court does not have
forever to sit and listen to people. So it has jurisdiction to say that that matter has
already been testified to and in the interests of saving time and money could
actually stop you from bringing in evidence especially where that evidence is
superfluous.

And all this is going to betray the main principle that we are making or that we are
stating that there is no requirement for corroboration. And in fact corroboration is
going to be in many cases a waste of the court’s time, which then would lead to the
point that you only ask for corroborating evidence where that is absolutely
necessary. And asking for corroboration or requirement is an exception to the
general rule. Like all rules of evidence the rule is larger than life but the exceptions
are even larger. There are exceptions to this rule that corroboration is not required.
And this falls generally into three categories:

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 1. firstly where corroboration is required as a matter of law. So there may
be instances where the law requires that certain kinds of evidence be
corroborated. And in those cases it will be because of the nature of the
evidence or because of the person that brings that evidence before the
court.

2. Where corroboration is not required as a matter of law but the tribunal of

fact or jury must be warned as a matter of law of the danger of acting on
uncorroborated evidence. Examples are where you have accomplices
testifying for the prosecution, where you have evidence of complainants
in sexual related offences.

3. There are those cases where corroboration is not required as a matter of

law but courts have evolved practice to warn themselves of the dangers
of acting on uncorroborated evidence. Examples are confessions which
are retracted or repudiated. It also covers confessions by mentally
handicapped persons and methods of identification. It is the nature of the
evidence that is being tendered that has made courts evolve this practice.

WHERE LAW REQUIRES CORROBORATION

1. 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
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 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. In
dealing with procuration it is required that the corroborating evidence
must be implicating the accused. Evidence which leads the accused
person to the offence charged. R. V. Goldstein (1914) 11 CAR 227

2. Speeding: The opinion of evidence of non-expert is as a general rule not

admissible. One of the exception to this general rule however relates to
speed. With speed you can opine even though you are not an expert
because the opinion is linked up to what you perceiver. Section 43(3) of
Traffic Act it is recognised that allowing for admission of opinion
evidence is opening up doors for wrong convictions, there is danger in
convicting on opinion evidence of non experts. This Section provides
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. The assumption of the law is that the opinion of one or two
persons that a vehicle has exceeded the speed limit is sufficient to justify
a conviction under this provision. It is required that their evidence
should relate to the speed of the vehicle at the same place and time.
Brightly V. Pearson 1938 4 AER 127 , there is also the case of Nicholas
V. Penny, 1950 2 KB 46 which held that the court could convict on the
evidence of a Police Officer who had checked a vehicle speed from a
speedometer of his own car which was driven at an even distance behind
the defendant’s care, i.e. there is no need for corroboration.
CROSSLAND V. DPP (1988) 3 AER 712 where it was stated at page
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 714 that it is plain that the subsection is intended to prevent the
conviction of defendant on evidence given by a single witness of his
unsupported visual impression of the defendant’s speed. In this case an
accident reconstruction expert had inspected the scene of the accident and
had even carried out tests on speed, .. the court held that this was not
solely the opinion witness of one witness because the witness had also
carried out other tests…

3. PERJURY: Under Section 111 of Penal Code a person cannot be

convicted of committing perjury or subornation of perjury solely upon
the evidence 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. Under this Section
corroboration need not involve a second witness or that it takes any
particular form.

4. TREASON: 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.

5. CHILDREN OF TENDER YEARS – under Section 124 of the

Evidence Act, notwithstanding the provisions of Section 19 of Cap 15
Laws of Kenya where the evidence of a child of tender years is admitted,
in accordance with that Section. Where the court considers that a child
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 understands the nature of the oath, the child will be sworn. This section
is dealing with instances where a child is sworn…. The accused shall not
be liable to be convicted on such… Who is a child of tender years, this
was defined in the case of Kibageni V. R The Appellant here was
convicted of murder, the conviction was based on the evidence of two
young boys who had been affirmed and they were between the ages of 9
and 14. there was no admission of the offence although the fact was
assumed at the trial. There was no corroborating evidence and no
warning was given as required. On Appeal, it was held that the evidence
of the two boys was of so vital a nature that the court could not say that
the trial judges failure to comply with the requirements for corroboration
was one which could not have occasioned a miscarriage of justice. The
second finding was that the failure of the trial judge to warn either
himself or the assessors of the danger of convicting on the evidence of
the two boys without corroboration was an additional ground for
allowing the appeal. At page 94 the court stated, ‘ there is no definition
in the Oaths and Statutory Declarations Act of the expression child of
tender years for the purpose of Section 19 but we take it to men any child
of any age or apparent age of under 15 years in the absence of special
circumstances. This definition is important when looking at competence
and compellability. Oloo s/o Gai V. R.,

Maganga Msigara V.R the Appellant here was convicted of murder, the
prosecution case depended on 3 witnesses included the sworn evidence of a
child. The judge did not warn either the assessors or himself of the
desirability of the evidence of child being corroborated. On Appeal it was
held that where there has been proper direction as to corroboration, the court
372
 will allow the Appeal even if there was no corroboration unless it considers
that no substantial miscarriage of justice has occurred. The court also held
that it would be unsafe to allow the verdict of murder to stand in this
particular case and allowed a conviction of manslaughter to be substituted
instead.

CORROBORATION WARNING REQUIRED AS A MATTER OF LAW

The law on accomplices for example does not require corroboration. In this
circumstance you have judicial authority or judge made law requiring that warning
be given even though the statutes don’t require.

AN ACCOMPLICE TESTIFYING ON BEHALF OF THE PROSECUTION

DAVIS V. DPP is the landmark case on Accomplice Evidence. It classifies as

accomplices the following persons
(a) Parties to the offence in question;
(b) Handlers of stolen property in case of thieves from whom they
receive being on trial for the theft;
(c) Parties to another offence committed by the accused in respect of
which evidence is admitted under the similar fact evidence rule.

The rule with regard to corroboration was stated in this case by Lord Simmons as
follows: Where a person who is an accomplice gives evidence on behalf of the
prosecution, it is the duty of the judge to warn the jury that although they may
convict on this evidence, it is dangerous to do so unless corroborated. Where the

373
judge fails to warn the jury in accordance with this rule, the conviction will be
quashed even if there be ample corroboration of the evidence of the accomplice.

WHY DO WE REQUIRE CORROBORATION FOR ACCOMPLICE

EVIDENCE?

The rationale is that the accomplice may have a purpose of his own to serve, he
may give false evidence against the accused out of spite or to exaggerate or even
invent the accused role in the crime in order to minimise his own culpability.
Section 141 provides that an accomplice shall be a….. the accomplice may be do
this to shield himself from liability.

Davies V. DPP

The defendant with other youths attacked another group of youths with fists. One
of the youths in the other groups died subsequently of stab wounds. Six youths
were charged with the murder but only the defendant was convicted. Ell was one
of the six youths charged but he was convicted of the lesser charge of common
assault. At the trial of the defendant, L testified for the prosecution as to the
admission by the defendant of the use of knife by him. The trial judge did not
warn the jury of the danger of accepting this evidence without corroboration. The
Defendant’s conviction was affirmed by the court of Appeal. On Appeal to the
House of Lords, it was held that in a criminal trial, where a person who is an
accomplice gives evidence for the prosecution, it is the duty of the court to warn
that although it may convict upon this evidence it is dangerous to do so unless it is
corroborated. Secondly the court stated that this rule, although a rule of practice
now has the force of law and thirdly where the judge fail to warn as above,
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conviction will be quashed. It is in this case where the court defined as to who an
accomplice is.

The court addressed its mind to the question of who is an accomplice and opined
that from the cases
1. Parties who are participes criminis in respect of the actual crime charged
whether as principles or accessories before or after the fact.
2. Receivers of stolen goods : R V Jennings (1912) 7 CAR 242
3. Accomplices, parties of another offences committed by the accused in
respect of which evidence is admitted under the similar evidence rule. R.
v Farad (1945) 30 CAR 168

R V Moorings
R V Hasham Jiwa – these cases are to the effect that an agent provocateur is not
an agent i.e. a person sent by the police as an agent provocateur is not an
accomplice and their evidence does not require corroboration.

What evidence amounts to corroboration

It has to be relevant and admissible
It has to be independent
Has to implicate the accused or link the accused with the offence – visit the case of
R v Baskerfield.

The requirement of corroboration warning in the case of accomplice evidence

extends to matrimonial evidence Galler V. Galler which held that in divorce
proceedings an adulterer who gives evidence of his own adultery is in the same

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position as an accomplice in a criminal case and hence the requirement for
corroboration.

Wilson Kinyua & Another V. R (1980) KLR

The Appellant and another person were charged with murder. Kinyua denied
involvement 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.

SEXUAL OFFENCES – corroboration has become the rule of law.

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, there is the very present danger that
the complainant may make a false accusation owing to sexual neurosis, jealousy,
fantasy, spite or a girl’s refusal to admit that she consented to an act which she is
now deeply ashamed. (the effect is to protect the perpetrator against the would be

376
malicious accusations levelled against a defenceless male although while trying to
do this you have more guilty people going free.

Maina V. R

Kongwea V R
The complainant was a middle aged lady who give evidence that while she was
going home, she was ambushed and raped. After the incident she said that the
rapist fell asleep and she escaped while the rapist was sleeping and went to
complain to her sister, the sister said that when the complainant came to her, she
was trembling, had grass on her hair and she gave a description of the accused
including the clothes he wore and a scar he had on the thigh whereupon the
accused was arrested and charged. He was convicted and on appeal the question
was whether there was sufficient corroboration. The court held that there was no
sufficient corroboration but that it would sustain the conviction because the
complainant appeared a truthful witness.

Njuguna Wangurimu V. R

The complainant here was a young girl who had gone to fetch firewood when she
was raped. She testified that prior to the incident that she was a virgin. There was
medical evidence of blood on her petticoat and the shorts of the accused person
had some blood with traces of semen. There was no evidence that the blood on the
accused shorts was the same group as that on the petticoat. A medical examination
on the girl showed that the complainant had been used to having sex, contrary to
her assertion that she was a virgin. The question was whether there was sufficient

377
corroboration. The court held that there was insufficient corroboration of the
complainant’s evidence and consequently the court could not convict.

R V. Ogendo (1940) 10 KLR 25

Where a young gal was found to suffer from the same sexually transmitted disease
as the alleged rapist it was held that that medical evidence was sufficient
corroboration of the assertion that one was raped.

Margaret V. R (1976) KLR 267

Where 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.

WHERE THE COURTS AS A MATTER OF PRACTICE REQUIRE

CORROBORATION

Roria V. R. EALR 383

R V. Turnbull (1977) QB224

Corroboration is not ordinarily required and where required –

Identification by single witness at night;

Repudiated and retracted confessions.
378
CORROBORATION

The Court may presume-

(b) that an accomplice is unworthy of credit, unless he is corroborated

in material particulars;
That accomplices are competent witnesses is set forth is s.141:- 141. an
accomplice shall be a competent witness against an accused person; and a
conviction shall not be illegal because it proceeds upon the uncorroborated
evidence of an accomplice.
-----------------
A. What is an accomplice?
The leading decision, on which the Courts in East Africa rely, is Davies
v- Director of Public Prosecution, [1954] A.C. 378, in the House of Lords,
wherein the following authoritative definition of accomplice was given:-

“.............the following persons, if called as witnesses for the

prosecution, have been treated as falling within the category:
(1) on any view, persons who are participes criminis
(participants in a crime) in respect of the actual crime charged,
whether as principles or accessories before or after the fact (in
felonies) or persons committing, procuring, aiding and abetting
(in the case of misdemeanours). This is surely the natural and
primary meaning of the term ‘accomplice. But in two cases,
persons falling strictly outside the ambit of this category have, in

379
 particular decisions, have been held to accomplices for the
purpose of the rule: viz.

(2) Receivers have been held to be accomplices of the thieves

from whom they receive goods on a trial of the latter for larceny.
(3) When X has been charged with a specific offence on a
particular occasion. and evidence is admissible, and has been
admitted, of his having committed crimes of this identical type on
other occasions, as proving system and intent and negativing
accident; in such cases the court has held that in relation to such
other similar offences, if evidence of them were given by parties
to them, the evidence of such other parties should not be left to the
jury without a warning that it is dangerous to accept it without
corroboration.”

The above quotation was quoted in apart in M’Nduyo M,Kanyoro v- R.,

[1962] E.A. 110 (C.A.) at p.112, where the Court emphasized on p.113 that the
Davies case now controlled hte definition of accomplice in Kenya.
1. Principles
The definition of principal offenders is found in s.20 P.C., and includes:-
a. every person who actually does the act or makes the omission
which constitutes the offence.
b. every person who does or omits to do any act for the purpose of
enabling or aiding another person to commit the offence;
c. every person who aids or abets another person in committing the
offence; and

380
 d. any person who counsels or procures any other person to commit
the offence.

Therefore those categories in the Davies case of accessory before the fact and
persons commiting, procuring, aiding or abetting in misdemeanours re
principal offenders under the Kenya Penal Code.
It Kamau v.R.’ [1965] E.A. 501, 504 (C.A.) it was said:-
“ it is not sufficient to constitute a person a principal in the second
degree that he should tactly acquiesce in the crime, or that he
should fail to endeavour to prevent the crime or to apprehend the
offenders, but it is essential that there should be some
participation in the act, either by actual assistance or by
countenance or “
2 Extent of participation or complicity in crime
As will be seen, the determination as to whether a witness was an accomplice
governs the rules concerning corroboration; therefore the problem arises as to
how much complicity in the commission of a crime will suffice to brand one an
accomplice. The present decisions would, for example, certainly be at
variance with such cases as Kichingeri nd Others v.R. (1908), 3 E.A.L.R.
where it was held that certain Africans having publicly assisted in putting a
suspected witch doctor to death according to tribal custom thinking they were
concerned in a legal and meritorious action, their evidence was not tainted in
the same manner as that of an ordinary accomplice in a crime

As noted in hte quotation form Zuhari’s case, there is a distinction

between................. in a crime, passively witnessing the ommision of an offence.
In [1965] E.A. 501 (C.A) the accused was jointly charged and convicted with
381
one N of murdering her husband, and the main evidence against her was that
of their mother who testified that she saw the accused striking the deceased on
hte back of hte neck with a panga. In holding that a passive attitude while a
crime is being committed or following the commission of a crime will not
ordinarily make a person a principal offender in the former case nor in
accessary after the fact under s.396P.C, in the latter, the Court said at p.504.
“It follows form whose authorities, in our view, that what a
person who aids and sheets the commission of a crime or assists
the guilty person who merely acquiesces in what is happening or
who fails a report a crime is not normally an accomplice but that
the weight to e given to such a person’s evidence will vary
according to hte reason for hte acquiescience. If it was apparently
based on approval of the crime, the evidence will be treated as no
better than that of an accomplice; if it was based on indifference,
the evidence will be treated with considerable caution; but if, for
example, it was the result of fear, there is no reason why hte
evidence should not be relied on.”

The “lion man” cases for example R. v. Munduli s/o Chui and Others,
(1948), E.A.C.A 47, and Sita v.R. [1957] E.A. 306 extent capable of classifying
prosecution witnesses as accomplices without raising them to the status of
principal offenders. In Munduli’s case the Court noted that both prosecution
witnesses “ were privy to the crime and took some part in its preparation”
(p.48), while in Sita’s case the evidence implicating one of the appellants was
given by a witness who himself stood charged with consipirac to murder, and
was therefore a principal.
3. Accessories after the fact.
382
The definition of accessory after the fact is found in hte Penal Code as
follows:-

396. (1) A person who receives or assists another who is, to his
knowledge, guilty of an offence, in order to enable him to escape punishment,
is said to become an accessory after the fact to the offence.
(2) A wife does not become an accessory after the fact to an offence of
which her husband is guilty by receiving or assisting him in order to enable
him, to escape punishment; or by receiving or assisting in her husband’s
presence and by his authority another person who is guilty of an offence in the
commission of which her husband has taken part in order to enable that other
person to escape punishment; nor does a husband become an accessory after
the fact to an offence of which his wife is guilty by receiving or assisting her in
order to enable her to escape punishment.
Prior to the Davies case the courts in East Africa did not acknowledge
that accessories after the fact were necessarily accomplices; see, for example,
R.v. Kinyangabwaru, (1942), 9 E.A.C.A. 90, followed in R.v. Nanta s/o Ndimi,
(1944) , 11 E.A.C.A 119. R.v. Erunaani Sokoni s/o Eria and Another, (1947),
14 E.A.C.A. 74 in effect followed these decisions, which also held that they
may be special circumstances in a particular case where the court should look
for corroboration before acting on the evidence of such a witness; see editorial
note. See also R.v. Ali Saleh, (1948), 23 K.L.R. (1) 40.
In 1956, however, in hte case of Githae s/o Gathigi and Another v.R.,
(1956), 23, E.A.C.A. 440, 441 the Court of Appeal noted that the rule had been
put beyond doubt by Davies, and that any previous decisions tot he contrary
were no longer good law, reiterated in Boota Singh R. R., [1960] E.A. 638
(C.A.)
383
 (a) Compulsion.
In certain types of cases the question arises as to whether a person
forced to assist a principal offender becomes an accessory after the fact even
though the assistance may be rendered only under complusion. This was the
type of question presented in Gitahe’s case where the witnesses had assisted in
carrying away a body under threat of death, however they were held to be
accessories and the question of compulsion or motive was not examined.
There are, however, a series of cases arising out of hte Emergency and the
illegal administering of oaths. The last in the line was M’Nduyo M’Kanyaoro
v.R., [1962] E.A. 110 (C.A.) where the defendant stood charged with
administering an unlawful oath and the witnesse were those who participated
in the ceremony. Neither witness had reported the incident to the police and
therefore could not rely on compulsion as a defence to the charge of taking an
unlawful oath had they been charged, to the charge of taking an unlawful oath
had they been charged, see s.63 P.C. If they had reported as required they
would, upon being charged, have been entitled to a defence of compulsion.
The magistrate did not treat the witnesses as accomplices. The Court of
Appeal, supporting the earlier decisions in Bedan Mugo s/o Kimani v.R.,
(1951) , 18 E.A.C.A. 139 and R.v. Mukwate and Another, Kenya Sup. Ct.
Emergency Cr. case NO. 64/1955 (unreported), held that a prosecution
witness who had been compelled unwillingly to take an oath and is not in fact
an accomplice, is not, when he is a witness in the prosecution of another
person for the offence of administering that oath, to be treated as an
accomplice; this even though were he to be charged with an offence, he would
be statutory presumed (under hte then s.63A) to have consented to the
administration of the oath, and the defence of compulsion would be curtailed
384
under s.63 P.C.. Contrast this with the situation in Philip Muiga s/o Churia
v.R., (1953), 26 K.L.R. 100 where the witness admitted he had taken an oath
at a meeting but had not reported. There was nothing in this case to suggest
that the oath had been taken under compulsion, and he was treated as an
accomplice whose evidence required corroboration.

(b) Motive
The motive with which assistance is given may be a determining factor
in a decision as to whether the assisted was an accessory after the fact. For
example, in Gathitu s/o Kiondu v.R., (1956), 23 E.A.C.A. 526 two of the
witnesses for the prosecution had assisted in burying a body and had not
informed the police. The witnesses claimed they had acted from fear of the
murders, who were Mau mau, and denied that they had any wish to help the
murders. On appeal the Court held that the question whether assistance
given to a murderer after the crime makes the assister an accessory after the
fact depends not on intention, but on the motive with which the assistance is
given, and that the direction of the trial judge that the witnesss “ were not
assisting persons who were, to their knowledge, guilty of an offence, to escape
punishment” was correct i.e. the witness were not participates criminis within
the meaning of the Davies case. as to motive; the Court said that “that was a
matter of fact for the decision of the learned trial Judge.” It was similarly
held in a “lion man” case, R.v. Duloo d/o Cidakungu and Another, (1947), 14
E.A.C.A. 132, that the failure of prosecution witnesses to report he plan of
murder to the authorities did not constitute them accomplices as there was
ample evidence that their silence was induced by fear.
Motive is also relevant in determining whether a person who invites the
commission of an offence is to be treated as an accomplice, i.e the “police spy”
385
or “police trap” cases. The general rule was set forth in R.v. John Fernandez,
(1917), 1 Z.L.R. 546, where it was held that a police agent who entraps a
suspected person by inviting him to commit an offence which it is believed he
is intending to commit is not an accomplice but a spy, if his purpose in
obtaining the commission of hte offence is simply to serve the public by
deceiving the suspect, and not to create an offence. His evidence, therefore,
does not require corroboration This is if the witness (viz. police spy) has made
himself an agent for the prosecution before associating with the wrongdoes, or
before the actual perpetration of the offence, but he may be an accomplice if
he extends no aid to the prosecution until after the offence is committed. See
also R. v. Sirasi Kiboya an Ibuliamu, (1918), 3 U.L.R. 294. It is for the court
to decide in each particular case what weight it will attach to evidence of this
kind, the decision depending on hte character of the particular witness and
the circumstances surrounding the setting of the trap; Baji Daya v.r., (1944), 1
T.L.R. ® 274. which also held:
“ it is desirable in the nature of the case that the movements and
actions of the decoy should be subject to control and surveillance
by a responsible police officer for the purpose of checking and
authenticating his activities.”

he reason for the rule is, as was pointed out in Habib Kara Vesta and Another
v.R., (1934), 1 E.A.C.A 191, 195, that the complicity extends only
the...................an not to the mens rea The Court did also none that if the
constigater of the offence is not employed by the public authorities and did not
communicate with them until after the offence had been committed. This
“may be ground for a cautious examination of his evidence”. As here where

386
one Lees, taking it upon himself he suppress the drug traffic in Mombasa
induced the accused to supply a drug.
Similarly in r.v. hasham Jiwa, (1949), 16 E.A.C.A. 90; one Njoroge
attempted to purchase rationed foodstuffs without the require coupons. The
defendant quoted prices which Njoroge thought to be too high. so he went to
consult with the .C.’s clerk, who reported to the D.O, to make the purchase,
and the defendant was then arrested for his “black market” operations.
Njoroge gave evidence. and on appeal it was held that while there were
grounds for saying that it was originally the intention of the witness to carry
through the illegal transaction for his own profit, that intention completely
disappeared when he hear the price at which hte defendant wished to sell the
goods, and form that moment ceased to be accomplice and became a police
spy before any offence had been committed by the defendant.
Habib’s case and that of R.v. parentis, (1937), 1 T.L.R.(R) 208 were
both discussed in R.v. Dalpatram Harishanker Mehta, (1946) the court
examined the character of the witness, the nature and extent of his
participation in the acts of the accused and the motive which induced him.
and, acting that the evidence of a person who take part in a police trap stands
on a higher plane then the ordinary accomplice, nonetheless said that the
judge was entitled ot hold that the witness required corroboration, as in
Parentis’ case,. See R.v. Katemi and another. (1910). 3 E.A.L.R. 79.
4 Other situations involving accomplices.
Examination of the following cases will illustrate how the rules
concerning accomplice evidence have been applied in different situations.
Bhimji Nathoo v.r. 91941) , 19 K.L.R. (2) 90, where the accused was
charged under a section of the Game Ordinance with having purchased two

387
leopard skins without a permit, the court held that the sellers of the skins.
Who appeared as witness for the prosecution, were accomplices.

Davda v.r. [1965] E.A. 201 (C.A) . Charge under the Prevention of
Corruption Act. s.3(1) of Tanganyika. Intermediary corruptly solicits for
money for a third party. Both intermediary and third party charged. avie v.
D.P.P. applied. Held that there was ample evidence that he person solicited
and his brother were not accomplices; see discussion pp.207-9.
Circulars to magistrates NO.13/1947, (1947), 22 K.L.R. (2) 80. Fact
situation to determine whether part played by one witness in charge of
stealing and possession of stock implicated him as an accomplice.
R.v. Awath him Ali and Others, (1918) 3 E.A.L.R. 82 - conspiracy,
evidence of a statement by one of several conspirators in reference to the
common design is relevant for showing parts taken by other conspirators.
Witness held accomplice.
Haji Moledina v.R. [1960] E.A. 678 (U). witness not an accomplice on
count no. 1, demanding money with menaces, as the offence was complete
when the demand was uttered and there was no evidence establishing him as
an accessory after the fact; on court no.2 witness was accomplice (corruption)
since he had bargained as to the amount of the gift and other evidence
materially corroborated his evidence.
D.R. Khetani v.R., [1957] E.A , application of principles of Davis v.
D.P.P. to fact situation to determine whether certain prosecution witnesses
were accomplices and required corroboration.
Abdulrasul s/o Jivraj v. R., (1931), 1 T.L.R. 667. When a witness
admits he was cognisant of the offence and took no steps to communicate his
knowledge with a view to preventing the commission of the projected offence,
388
he must ordinarily be taken to be in sympathy with the criminals and so to be
a witness upon whose evidence a count will act only after the closest scrutiny.
Here the court drew no inference form hte silence f an unsophisticated and
presumably uneducated African who heard a European or an Indian
instigating the commission of an offence. Presumably the courts today might
take a different view.
Israeli Kasukolse and Others v. R., (1956), 23 C.A. 521, 524,. It is well-
settled that an extra-judicial confession is to be treated as accomplice evidence
and no weight is to be given to it as against any person other than the party
making it unless it is corroborated by independent testimony; a fortiori when
the confession has been retracted. (See chapter on Confessions, s.32 K.E.A.,
infra.)
Mohamed Farah Musa v.R., (1956), 23 E.A.C.A. 469. Appellant had
been convicted on three counts, the first and second of harbouring, contra
Emergency Regs. 8(E) (2), and the third of withholding information contra
Reg. 27. The witnesses knew of the harbouring but their mere knowledge did
not make them accomplices. Thus even if they and been accomplices of the
appellant on the charge of withholding information, so that corroboration was
necessary, that fact would not make them accomplices as regards the first two
counts, even though the offences were related.
Hilda Laperte and Another v. R, (1952), 25 K.L.R. 147, 151:- “...
there mere fact that a person addresses an illegal demand to
another does not make hte latter an accomplice in the offence
constituted by the illegal demand.... we refuse..... to admit that a
person who is the victim of an illegal demand can be said to be an
accomplice to it. Of course... it is the law in Kenya that when a
person to whom a demand is addressed complies with it and gives
389
 a pecuniary consideration which is taken, both the giver and the
taker have committed offence: And when money is said by a
witness to have been given in response to an illegal demand, his
evidence as to the giving should be regarded as the evidence of an
accomplice.”
Receiving. Charge of receiving stolen property. Evidence
of thief. Held that the evidence of a self-confessed thief, as an
accomplice, required adequate corroboration. George Migwa
Wambugu v.R.., (1950), 24 K.L.R. (1) 91. See also R.v. Bhaiji
Murbhai, (1939), 6 E.A.C.A. 110. approved in R.v. Taibali
Mohamedhabi, (1943), 10 E.A.C.A. 60. See also Murdin Ali
Rhemtulla and Another v.R., (1956),23 E.A.C.A. 430. For
application to fact situations, see Circular to magistrates No.
32/1946, (1946), 22 K.L.R. (1) 94; Joseph Mbebi s/o Mati v.R.
[1957] EA. 426 (K)

R.v. Fataki Sakhair, (1920), 8 U.L.R. 11. Adultery. Wife was held to be
an accomplice though not liable to prosecution and the evidence should not be
accepted without corroboration. (Note: if the recommendations in the Report
of the Commission on the Law of marriage and divorce is implemented, s.168
of the Law of Matrimony Act 196 will provide that adultery is an offence, and
this rule may well become applicable in Kenya.)

5 Corroboration
(a) Principles behind the requirement of corroboration in accomplice
cases.

390
 The Court in R.V. Hasahm Jiwa, (1949) 16 E.A.C.A 90, 94, quoted
with approval WOODROFFE’S LAW OF EVIDENCE, (9th Edn.), p. 952
which sets forth the reasons why evidence of an accomplice must be treated
with special rules:-

“Principle - The testimony of accomplices, who are usually

interested, and nearly always infamous witnesses, is admitted
from necessity, it being often impossible, without having recourse
to such evidence to bring the principal offenders to justice. But
the practice is to regard the statements of such persons as tainted
because, from the position occupied by them their statements are
not entitled to the same weight as the evidence of an independent
witness. Accomplice evidence is held untrustworthy for three
reasons.-

(a) because an accomplice is likely to swear falsely in order

to shift the guilt form himself;
(b) because an accomplice is a participator in crime, and
consequently an immoral person, is likely to disregard the
sanction of an oath; and
(c) because he gives his evidence under promise of a pardon,
or in expectation of an implied pardon, if he discloses all he knows
against these with whom he acted criminally, and this hope would
lead him to favour the prosecuted.”

See also R.v. Asumani Legeni s/o Muza, (1943), 10 E.A.C.A. 92 where the
same principles are reiterated.
391
 (b) definition of corroboration.

The leading decision defining corroboration is R.v. Baskervile, 91916), 2

K.B. 658, found in, for example, R.v. Manilal Ishwerlal Purchit, (1942), 9
E.A.C.A. 58, 61, where the Court summarised the definition by saying:-
“...the corroboration which should be looked for is, as laid down
in R. v. Baskerville... some additional evidence rendering it
probable that the story of he accomplice is true and that it is
reasonably safe to act upon it. It must be independent evidence
which affects the accused by connecting him or ending to connect
him with the crime, confirming in some material particular not
only the evidence that the crime has been committed but also that
he accused committed it. It is of course not necessary to have
confirmation of all the circumstances of the crime corroboration
of some material particular tending to implicate the accused is
enough and whilst the nature of the corroboration will necessarily
vary according to the particular circumstances of the offence
changed, it is sufficient if it is merely circumstantial evidence of
his connexion with the crime. Corroboration may also be found
in the conduct of the accused.”
It is obvious, of course, that it is not necessary that everything which the
accomplice says be corroborated or confirmed by other independent evidence,
for if this were the case, the evidence of the accomplice would not be
necessary at all.

(c) findings and direction required

392
The first duty of the court is to make a finding that the is, in fact, an
accomplice. As was said in R. v. Ndaria s/o Kariuki and Seven Others, (1945),
12 E.A.C.A. 84, 86,:-

“ A paint which is sometimes lost sight of in considering

accomplice evidence is that the first duty of the Court is to decide
whether the accomplice is a credible witness. If the Court, after
hearing all hte evidence, feels that it cannot believe the accomplice
it must reject his evidence, and unless the independent evidence is
of itself sufficient to justify a conviction the prosecution must fill.
If, however, the Court regards the accomplice as a credible
witness, it must then proceed to look for some independent
evidence which affects the accused by connecting or tending to
connect him with the crime.... But in every case the Court should
record in its judgment whether or not it regards the accomplice as
worthy of belief.’ (emphasis added).

It should be kept clearly in mind the distinction between the need for a finding
as to whether the accomplice is worthy of belief and the basing of a conviction
on uncorroborated accomplice evidence. The words used continuously by the
courts that it is “unsafe to convict” (see below) on uncerroborated evidence do
not mean that such a conviction is “illegal” - see s. 141. In Uganda -v- Shah,
[1966] E.A. 30, 31 (C.A.) the Court said:-

“ It was argued for the respondent that hte learned resident

magistrate in his judgment, after directing himself correctly on
393
 the principles to be applied, erred in his approach to the evidence
of accomplices in that he reached he decision that he witnesses
were to be believed before he looked for corroboration of their
evidence. The learned judge who heard the first appeal upheld
this submission, holding that the learned magistrate had ‘put the
cart before the horse’ by first deciding that he believed the three
accomplies and then looking for corroboration. With respect, we
cannot agree and we think that there was nothing wrong in the
learned magistrate’s approach. The absence of corroboration or
he inadequacy of the corroboration of the evidence of an
accomplice is not of itself a reason for disbelieving that evidence
but merely preludes the court (save in exceptional circumstances)
from basing a conviction on it. Of course, quite apart from any
question of corroboration, a court should never accept or reject
the testimony of any witness or indeed any piece of evidence until
it has heard and evaluated all the evidence in the case. At the
conclusion of a case, the court weighs all the evidence and decides
what to accept and what to reject. When it accepts the evidence of
an accomplice, it then, save as aforesaid, looks at the other
evidence which it has accepted to see if it affords corroboration of
the evidence of the accomplice.”
Again in the headnote to R.v. Kipkering Arap Koske and Another (1949), 16
E.A.C.A. 135 where it was held that:-

“........whether by law or practice corroboration is needed or not,

the testimony of a witness may be so utterly unreliable that no
reliance whatever can be placed on his evidence, and in such case
394
 no amount of corroboration can render it safe to rely upon his
evidence in support of a conviction. When a witness is of this
character, a conviction can only be had on entirely independent
and reliable evidence from another witness or other witnesses
proving the accused guilty of the offence.”
After making - and recording - a finding that a witness is an accomplice, and
whether he is worthy of belief, if he is so worthy the court must make and
record a direction to itself or the assessors that it is unsafe to convict unless
the evidence of this witness is corroborated in some material particular. A
sample warning is found in the guide to practical procedure on p.82, infra The
requirement of corroboration, while a rule of practice, has practically
attained the status of a rule of law, and it is only in exceptional circumstances
that a conviction based upon uncorroborated accomplice evidence will be
upheld. (See (d) below).
When a court is in doubt as to whether or not witnesses are, in fact,
accomplices and use the same procedures as in cases where there is no doubt
as to their status; as was done in Kanyumbi s/o Katungi and Another, (1954),
21 E.A.C.A. 336. See also R,v. Ndaria s/o Kariuki, (1945), 12 E.A.C.A. 84.

(d) Unsafe to convict in the absence of special circumstances.

The Court of Appeal in Ganisio s/o Walwa v. R., (1956), 23 E.A.C.A.
453 discussed at length pre -Davies cases which suggested that a court should
never convict on uncorroborated accomplice evidence “in the absence of
special or exceptional circumstances.” and on p.456 said :-

“It is moreover, to be noted that any rule of law requiring

‘special’ or ‘exceptional’ circumstances to be proved in order to
395
 justify a conviction on uncorroborated accomplice evidence would
as seems sometimes to be overlooked, be inconsistent with section
133 of hte Indian Evidence Act (s. 141, K.F.A.), which provides
without exception or limitation that ‘a conviction is not illegal
merely because it proceeds upon he uncorroborated testimony of
an accomplice.
The Court called this “the practical desirability of, as opposed to the legal
necessity for, evidence corroborating that of an accomplice.” (p.457)
In Davies v. D.P.P. said that the “true rule” had been accurately
formulated in three proposition:-

“First proposition.
In a criminal trial there a person who is an accomplice gives
evidence on behalf of the prosecution, it is the duty of the judge to
warn the jury that, although they may convict upon his evidence,
it is dangerous to do so unless it is corroborated.
Second proposition:
This rule, although a rule of practice, now has the force of a
rule of law.
Third proposition:

Where the judge fails to warn the jury in accordance with

this rule, the corroboration of the evidence of the accomplice,
unless the appellate court can apply the proviso to section 4(1) of
the Criminal Appeal act, 1907.”
(Note: for a Kenya case applying the equivalent section of the C.P.C, s. 381(c)
(now 382), see Kantibhai C. Patel v.R., [1957] E.A. 890, 892 (K). However hte
396
Revised Supplement, 1964, deleted the references to misdirection, both subs.
(c) and hte word misdirection in hte provise when jury trials were abolished.
Patel’s case involved a trial before a magistrate without jury or assessors, and
it is submitted that application of the (then) s.381(c) was technically incorrect.
It is an arguable proposition that the section as it now reads is not statutory
authority for an appeal court upholding a conviction where there is a
misdirection on corroboration even though the section contains a reference to
irregularity in the judgment, although the practice of the Court of appeal is
will to quash a conviction and allow the appeal unless there is overwhelming
evidence of corroboration which would irresistably have led to the same
conclusion despite the lack of direction.
Departure from the general practice of not convicting on
uncorroborated evidence is, however, justified in what the Court in Canisio’s
case called “exceptional cases”. The Court at p.458 set forth the determining
factors as follows:-

“... there are exceptional cases in which a departure from that

general practice is justified. The critierion as to whether such an
exceptional case has arisen is the credibility of the accomplice or
accomplices combined with the weight to be attributed to the facts
to which they testify. The principal factors to be considered when
assessing their credibility are not only their demeanour and
quality as witnesses but also their relation to the offence charged
and the parts which they played in connection therewith, that is to
say, the degree of their criminal complicity in law and in fact. A
departure from the general rule of practice is only justifiable
where, an applying the criterion in that manner, is clearly appears
397
 that the accomplice evidence is so exceptionally cogent as to
satisfy the Court beyond reasonable doubt, and where
accordingly the judge or judges of fact, while fully conscious of
the general inherent danger of any such departure, is or are
convinced that in the particular instance concerned the danger
has disappeared.’ (emphasis added).

As to the degree of complicity see general discussion, para.(2) p.70), in R.v.

Wanjara, (1944, 11 E.A.C.A. 93, the Court held that the witness ‘was only an
accomplice in a very secondary sense” owing to the circumstances of her
complicity in the crime, and that “whilst corroboration of her evidence was
desirable it was not essential.”
Other examples of “exceptional cases” are Kichingeri and Others v.R.
(1908), 3 E.A.I .R 1 where the degree of complicity of villagers who assisted in
putting a witchdoctor to death (see p. 70 was held to be such that their
evidence was not tainted in the same manner as that of an ordinary
accomplice in a crime.” Cases which may be examined to show circumstances
where the courts have held it “unsafe to convict”, there being no special
circumstances justifying upholding the appeal are Wawa s/o Kilonzo v.R.,
(1950), 17 E.A.C.A. 152, R.v. Taihali Mohamedbhai (1943) , 10 E.A.C.A 60;
r.v. Asumani Logoni s/o Muza, (1943), 10 E.A.C.A. 92; Mohameddi s/o Saidi
and Others v.R., (1944), 11 E.A.C.A. 93; R. v. Haji Mohammed Sale
Mohamed; (1933), 15 K.L.R. 109, R. v. Thakar Singh, (1934) 1 E.A.C.A. 110

(e degree of corroboration required may vary.

398
 In Murdin Ali Rhamtulla and Another v. R, (1956), 23 E.A.C.A 430,
counsel argued that these two men are representative of the worst type of
accomplice, and that their evidence requires stronger corroboration than in
the case of ordinary accomplices, and that the learned Judge did not
specifically address his mind ot the question that they were accomplices of the
worst type, so that he accepted as constituting corroboration particulars
which in the circumstances of this case were not sufficient, citing authority
which held that an accomplish who changes his story or whose credibility is
otherwise strongly suspect needs to be strongly corroborated. The Court of
Appeal accepted this proposition, but held there that the accomplices did not
fall within that category.

(f) corroboration in part corroborates the whole.

Noting that the definition of corroboration in Baskerville’s case includes

hte words “confirming in some material particular”, it should be kept in mind
that if an accomplice is corroborated, not only may that part of his evidence
which is corroborated be relied but also that apart which is not corroborated,
the corroboration if a material part being a guarantee of the truth of his
evidence as a whole. See R. v s Taichai Magamedbhai, (1943), 10 E.A.C.A
60. see also: Fazel Jaffer v.R,g (1928), 1 T.L.R. 157.

(g) examples of what may or may not be corroboration

In as much as, in the words of R.V. Baskerville, “ the nature of the

corroboration will necessarily vary according to the particular circumstances
of the offence charge.”, it is not possible to give examples of corroboration
399
which will cover more than a small variety of circumstances. Reference to the
cases cited on the subject will provide guidance as to the approach of the
courts in various instances, but there are certain cases which have considered
whether certain general kinds of evidence can amount to corroboration.

1 A witness may not corroborate his own evidence

Githae s/o Gathigi and Another, (1956), 23 E.A.C.A. 440, 441. “ The
third item said to have corroborated (the accomplice’s) evidence was ‘the fact
of his ability to point out to the police where the deceased’s body had been
buried.’ This involved he erroneous proposition that a witness can
corroborate himself. In truth the only result of (the accomplice’s) ability to
disclose the site was to establish his credibility as a witness who asserted that
he took part in the burial; his disclosure of the site was no corroboration in
the true sense of that term, namely, independent testimony which tends to
connect the accused with the crime charged, for neither was it independent of
(the accomplice’s) testimony, nor did it implicate the appellants.”

In R. v. Shah Hirji Popat, (1947), 22 K.L.R. (2) 38, the appellant was
convicted of offences under hte Price Control Regulations, and the evidence
against him had been that of two accomplices. The magistrate found
corroboration of the evidence given by hte accomplices in contemporaneous
entries made by one of the accomplices in a personal book, and by the other
accomplice in his firms’s cash book. The Court said on p.40:-
“An accomplice cannot properly be held to have corroborated his
own testimony by his previous statement, if admissible, and
whether written or oral, any more than such testimony could
400
 properly be held to be corroborated by the evidence of another
accomplice... These previous book entries written
conemporaneously by the two accomplices... did not amount to
independent evidence affecting he appellant by tending to connect
him with the crime.”

2. One accomplice cannot corroborate the evidence of another

accomplice.

“.... the witness Maina cannot be treated as corroborating Wambugu,

since one accomplice cannot corroborate another.” Githae s/o Gathigi
and Another v.R., (1956); 23 E.A.C.A. 440, 441. see also R.v. Atanas s/o
Mwamere (1936) 17 K.L.R. (1) 60; R. v. Shah Hirji Popat, (1947), 22
K.L.R. (2) 38, 40.

3 More opportunity, as distinct from exclusive opportunity, will not

suffice as corroboration.

See Circular to Magistrates No. 3/1943, (1943), 19 K.L.R. (2) 93, setting forth
the order in R.v. James Okumbu s/o Ndenina,, Conf. Case 610/1942. Thus if
there is evidence which is independent of the evidence of the accomplice which
indicates that the accused was the only person who had opportunity to commit
the offence, this would be sufficient corroboration, but if it is shown that the
accused was only one of several who had hte opportunity, this would not
constitute corroboration of the accomplice’s evidence.*

401
 1. It is doubtful that the mere fact that an accused person did not deny
statements made by the accomplice is corroboration. It was held in Francis
Barrrallon v.R., (1920), 8 E.A.L.R. 119 it was held that non-denial of an
accomplice’s statement may be corroboration of it. The Court here relied on
he case of R.v. Feigenbaum, (1919), 14 Cr. App. R. 1. In R. v. Juma s/o Mara,
(19430, had been doubted in R.v. Keeling, 28 Cr. App. App. R. 121, but
neither of the East African decisions has been referred to since decided.
Similarly, in R. v. Gas Ibrahim, (1946), 13 E.A.C.A. 104, the accused was one
of nine army deserter. To avoid detection he killed a woman, and evidence
against him was given by two of the other deserters who had gone on their
way without attempting to assist the woman. The Court there held that
although the witnesses were not accomplices to the act, yet in these special
circumstances they required corroboration, noting also that although non-
denial of material facts by the accused when deposed to by the prosecution
witnesses could in certain cases constitute corroboration, lack of
corroboration could not be remedied by the mere fact that an accused puts up
a false and perjured defence. Although neither of the earlier cases were
referred to in Ibrahim’s case, the query remains as to whether there would
be a distinction between non-denial of statements made by an accomplice and
non-denial of statements made by one not an accomplice but still requiring
corroboration?

5. Circumstantial evidence may be corroboration.

The Court in Baland Singh v.R., (1954), 21 E.A.C.A. 209, 211 noted the
distinction between circumstantial evidence as corroboration and the basing
of a conviction on circumstantial evidence (see discussion,, Introduction, p.
vii-ix supra):-
402
 “... circumstantial evidence, although not wholly inconsistent with
innocence, may be of great value as corroboration of other
evidence. It is only when it stands alone that it must be
inconsistent with any hypothesis other than guilt.”

6. A lie told by the defendant may be corroboration.

From Bassan and Baukobia v.R., [1961] E.A. 521, 530 (C.A.):-

“... a lie told by the appellant to a police offier was also capable of being
corroboration. in the latter connection the Lord Chief Justice (in
Crodland v. Knowler, 35 Cr. App. R. 48) said:

“... one has to look at the whole circumstances of the case. What
may afford corroboration in one case may not in another. It
depends on the nature of the rest of the evidence and the nature of
the lie that was told.”

7. A statement made by an accused person, whether amounting to a

confession or not, may in a proper case amount to corroboration of
accomplice evidence, even if the statement is retracted by the accused after it
was made.

See Bassam amd Watboa v. R., [1961] E.A. 521 (C.A.); S.G. patel v. R., [1957]
E.A. 881 (K) ; R.v. Ndaria s/o Kariuki and Others, (1945), 12 E.A.C.A 84;
Obeli v. Uganda [1965] E.A. 622 (C.A). If the accomplice is a co-accused.
403
The rules re different; see discussion on s.31 K.E.A. in chapter of confessions.
Although generally corroboration is required in the case of retracted
confessions; see Tuwamoi v. Uganda, [1967] E.A 84 (C.A.), in Bassan’s case
it was held that while it is true that, as a general rule, evidence which itself
requires corroboration cannot provide corroboration of other evidence also
requiring corroboration, retracted statements are not of the same quality as
accomplice evidence, therefore, a statement made by an accused person,
whether amounting to a confession or not, say in a proper case amount to
corroboration of accomplice evidence.
8. A refusal to give evidence on oath cannot amount to corroboration of
accomplice evidence, which must itself be corroborated.

in Omari s/o Hassani, (1956), 23 E.A.C.A. 580 it was held that while a judge is
entitled to take into account a refusal to give evidence on oath, such refusal
cannot be used to belster up a weak case or to relieve the prosecution from
proving its case beyond reasonable doubt, nor can such a refusal amount of
itself to corroboration of evidence which itself requires corroboration, citing
Jackson’s case, 37 Cr. App. R. 43 at 48. See also Lubege v. Uganda, [1967]
E.A. 440 444 (C.A.).

9. A hearsay statement may not amount to corroboration.

In Lubege’s case, supra, it was held that the trial judge had gone beyond what
was allowed by s. 155 U.E.A. (s. 165 K.E.A. - proof of consistency of former
statements) by allowing the evidence of one prosecution witness concerning
what another prosecution witness had told him to corroborate the evidence of
the other witness.
404
 10 Expressions of intention prior to the crime may afford corroboration.

In R.v. Okecha s/o Olilia, (1940), 7 E.A.C.A. 74 it was held that the evidence of
a previous threat, being an expression of intention, went beyond mere motive
and tended to connect the appellant with the killing. Similarly, Byamungu s/o
Rusiliba v. R., (1951), 18 E.A.C.A. 233, where hte Court, citing Okecha’s
case, said on p.235 that evidence of a prior conspiracy to kill the deceased,
although evidence of something antecedent to the crime, with, if believed,
afford good corroboration in law.

11 First report as corroboration.

See discussion under s. 165 K.E.A., infra, where evidence of a first report
corroborates a witness’s later testimony as to the same facts in the sense of
showing consistency. See, for example, Majabu Kizito v. R., (1955), 22 e.a.c.a.
458.

12 Evidence equally as consistent with the defence case as with the

prosecution case is not corroboration.

r.v. Munyambo s/o Mumo, (1939) 18 K.L.R. (2) 164 involved a charge of
official corruption where the accused had made entries in his register
purporting to show that three women were dead, whereas in fact they were
alive, and he was alleged to have received a bribe in connection with each
entry. His defence was that he entered the register in accordance with
information given him by a headman, and that if it was incorrect, it was not

405
his fault. Evidence was given by witness held by the court to be accomplices.
The court said on p. 165:-

“ Were the evidence supported by the entry in the register

showing that a woman who was alive was entered as dead and the
entry was in the accused’s handwriting then, in the absence of an
explanation that might reasonably be true, that would be
corroboration of the accomplies’ evidence. But where, as in this
case, the register is or may be consistent with the defence that the
entry as made on representation of the headman Kitati that the
woman was dead, then the position is different, for the register in
such a case does not corroborate the commission of hte offence
charged in any way.”Fashinder Rai v. King Emperor, I.L.R.
Patna, Oct. 1939, part X, 704 cited as authority, wherein it was
said:-

Even, however, could (the evidence) have been accepted, it did not
amount to corroboration, because it was equally consistent both
with the version of the prosecution and with that of the defence.”
There are a number of other situations where corroboration is required,
for example corroboration of the evidence of children, on examination of
those instances and cases cited will provide additional examples of the
application of the general rules.
For the relief regarding the requirement for corroboration of the evidence of
a thief in trials for receiving (see p.63 et seq.) see Joseph Mbati s/o Mati v.
R.,[1957] E.A. 426 (K), and Gecree Kigwa Wambugu v. R., (1950), 24 K.L. R.
(1) 91. In the reverse situation, a trial for theft when the receiver is a witness,
406
although the receiver was (before Davis v. D.P.P.) not an accomplice of the
thief unless he participated in hte theft (whereas the thief was an accomplice
in the crime of receiving), his evidence was considered no better than that of
an accomplice, and the general rule that it is generally unsafe to convict in the
absence of corroboration was applied; Mikidadi s/o urari and Another v. r.,
(1952), 1 T.L.(R) 368.
(h) Procedural notes,

When the Indian C.P.C. was in effect, under s. 337 a court could tender
a pardon to a person accused, on the condition that he make a full disclosure
of the.. of his knowledge concerning the circumstances of the offence, and it
was held that the evidence of a witness suspected of being an accomplice
should not be accepted until the pardon was tendered and his evidence was
freed from the suspicion of being dictated by self-interest; R. v. Ouma s/o
Achoda, (1915), 2 U.L.R. 152, although the person so pardoned was still on
accomplice and it was unsafe to convict in the absence of corroboration; R.v.
Bagunda Lwakikara and Others, (1920), 3 U.L.R.1. The present C.P.C. in
effect contains no similar provisions for a tender of a pardon, but is
interesting to contrast this approach with the present decisions on procedure.

In R.v. Umari bin Abdalla, (1942), 20 K.L.R. (1) 81, the Court noted
that if there were two accused charged with the same offence, and hte first
pleads guilty, the second pleading not guilty, and then the first gives evidence
against the ............. it is desirable that sentence be passed on the first accused
before the trial of the second accused,. Similarly in R.v. Sabakaki and Lewe,
(1919), 2 U.L.R. 308, there was a joint trial for theft and receiving. The
second accused pleaded guilty and was then examined by the magistrate,
407
giving answers which implicated the first accused as a thief. The second
accused was then convicted and sentenced and evidence was aken from him
and recorded in the same file, and on this hte first accused was convicted. The
Court held that hte first accused should have been discharged at the
conclusion of the case for the prosecution, and if it had even desired to
proceed with the case against him a new trial should have been instituted, in
which the second accused could have been called as a witness.
A practical procedure for use when dealing with accomplice evidence.
The following procedure, in outline form, with reference to pages of the
text where the substantive law if found, should be of assistance in ensuring
that the attention of the magistrate is drawn to the requirements of the law
and that the case record accurately reflects these requirements.
1. Determine whether a particular witness is an accomplice (definition,p.69,)
or should be treated as an accomplice.
2 Make a finding that the witness is an accomplice or should be treated as an
accomplice and record that finding on the cs record. (Para.5(c), p. 75).
3. make a finding that the witness is an accomplice or should be treated as an
accomplice and record that finding on the case record. (Para.5(c). p.75).
3. make a finding as to whether the accomplice is unworthy of belief, and
reasons for this should be given), disregard his evidence and indicate on the
case record that you are doing so.
4. If you decide that the accomplice is worthy of belief, proceed to lack for
corroboration of his evidence (definition, para. 5(b), p. 75).
6. If you find corroboration for the evidence of the accomplice, record this fact
on the case record and explain what this corroboration is.
7. If you do not find corroboration for the evidence of the accomplice, record
this fact on the case record.
408
8.If the evidence of the accomplice is the only evidence upon which hte
accused could be convicted, and if you do not find corroboration for his
evidence, you should warn yourself on the case record in words similar to the
following:-

I now warn myself that since A in an accomplice, even though I

have found him to be worthy of belief, and though I am aware
that s.141 K.E.A. provides that a conviction shall not be illegal
because it proceeds upon the uncorroborated evidence of an
accomplice, nevertheless it is dangerous to convict in the absence
of corroboration unless there are exceptional circumstances which
provide strong reasons for doing so.
9. Examine the criteria laid down in Canasic’s case, s.70, and determine
whether you have strong reasons for convicting. Record there are strong
reasons in the case record. It would be well to cite Canacid’s
case ...................................

10 If you do not have strong reasons for convicting despite the lack of
corroboration, state on the case record that after reviewing the criterion in
Canici’s case, the required exceptional circumstances do not exist and acquit.

409
 DOCUMENTARY EVIDENCE

a. No definition of document in Kenya Evidence Act.

As a general definition, OSBORN defines a document as :-

“Something on which things are written, printed or

inscribed, and which gives information; any written thing
capable of being evidence.”

The definition which was contained in the I.E.A., and is presently found in
the Uganda and Zanzibar Acts is:-

“any matter expressed or described upon any substance by means

of letters, figures or marks, or by more than one of those means
intended to be used, or which may be used for the purpose of
recording that matter”(s.3)

In the T.E.A. the definition is even broader in scope:-

“ ‘Document’ means any writing, handwriting, typewriting,

printing, Photostat and every recording upon any tangible thing,
any form of communication or representation by one of those
means, which may be used for the purpose of re-cording any

410
 matter provided that such recording is reasonably permanent and
readable by sight”.

The K.E.A. contains no definition of “document” in these terms but it may

be assumed that the definition would be no less narrow that that in the I.E.A. upon
which the Kenya legislation was based.

b. Classification of documents.

All documents without exception are divided into two classifications, public
documents and private documents, and the distinctions important owing to the
different rules governing the admissibility of documents in the different categories

79. (1) The following documents are public documents-

(a) documents forming the acts or records of the acts-

(i) of the sovereign authority or

(ii) of official bodies and tribunals; or
(iii) of public officers, legislative Judicial or
executive, whether of Kenya or any other
country

(b) Public records kept in Kenya of private documents.

411
 *******
The test for determining into which category a document falls is prima facie
an easy one: if the documents does not fall within the list of documents found in S.
79 (1) (a) and (b) which lists public documents, it is a private document.

Public documents are, in fact exceptions to the hearsay rule since the persons
who made the statements in the documents are not called as witnesses. They are
however , admissible in evidence on the ground that the facts which they contain
are in the public interest, and the statements were made in the course of official
duty by authorized and competent agents of the public.

The distinction between public and private documents is important because

of the differences in the rules governing admissibility and the procedure to be
followed, for example, secondary evidence may be given of the existence,
condition or contents of a public document under the provisions of S. 68(1)(e)
K.E.A. whereas the rules concerning secondary evidence of private documents are
more restrictive, See Infra.

SARKAR on P. 688 notes Lord Blacburn’s definition of a public document

in Sturla v. Freccia, 5 A.C 541, a s a “document that is made for the purpose of the
public making use of it, and being able to refer to it. it is meant to be where there
is a judicial or quasi-judicial duty to inquire”, note the importance of this right to
inspection in Tootal Broadhurst Lee quotation commencing P. 173 In Nercer v
Denne, (1904), Ch. 538, Farwell, J. said:-

“That test of publicity as put by Lord Blackburn is that the public

are interested in it and entitled to see it, so that if there is
412
 anything wrong in it they would be entitled to protest. In that
sense, it becomes a statement that would be open to the public to
challenge or dispute, and therefore it has a certain amount of
authority”.

The “test of publicity” attains importance under S. 80, certified copies.

Among the many kinds of public documents are the following listed in s. 92
K.E.A ( as amended by LN 22/1965):-

 Proceedings of the East Africa: Central Legislative Assembly or the legislature

of any country in the Commonwealth;

 acts, orders or notification of the executive government of Kenya, the High

Commission, any local authority, or a ministry or department of and of the
forgoing;
 proceedings of a local authority or of any corporate body created by Act or
ordinance;
 proclamations, decrees, orders , and other judicial proceedings of any court: of
justice in such country;
 affidavits, pleadings and other legal documents filed or deposited in such court
as required by S. 7 of the Evidence Act, 1851, of the United Kingdom;
 public documents of any other class n a foreign country.

Note how these examples meet the requirements listed in subs. (a)(i) - (iii) of s.
79(1)

413
 Total Broadhurst Lee Co. ltd v Alimahomed Haji Ahmed & Sons, Ltd.,
(1954), 24 K.L.R. (2) 31, was a case for damages or equitable relief for
infringement of design registered in Great Britain. The plaintiffs relied on a
document bearing the seal of the Patent Office of Great Britain purporting to be a
copy of the certificate of registration of the design, together with a certificate
bearing the seal of the Patent Office of the Great Britain.

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

The court quoted from s. 74(1) (iii) I.E.A. (s. 79(1)(e)K.E.A.), ss. 76 and 77
I.E.A. (ss.79-81 K.E. A.), and s. 82 I.E.A. (s. 84 K.E.A), and said on p. 32:-

“The documents on which the plaintiffs rely 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 la. (vide section 18 Registered Designs Act, 1949, which
reproduces section 51 of the Patents and Designs Act, 1947). It
seems to me, therefore, that the certificate 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.

414
 Subsection 79(1)(b) states that public records of private documents kept in
Kenya are public documents. The fact that a document is registered does not make
the document itself a public document; only the record of the registration is a
public document. The “registration” referred to is that provided for by law, e.g
Cap 285, Registration of Documents Act (pertaining to land). The theory is that
these registrations are in the public interest, and the statements in the registers
concerning the documents registered are made by authorized and competent agents
of the public in the course of their official duty.

Entries of this kind have been classified as falling under the classification of
statements made under special circumstances, s. 38 K.E.A.; see discussions Infra.

c. Proof of public documents by certified copies.

The proof of public documents differs from proof of private documents,

generally by certification of a copy of the document, or in certain instances by
authentication.

80.(1)Every public officer having the custody of a public

document which any person has a right to inspect shall give that
person on demand a copy of it on payment of legal fees therefore,
together with a certificate written at the foot of such copy that it
is a true copy of such document or part thereof, as the case may
be and such certificate shall be dated and subscribed by such
officers with his name and official title, and shall be sealed
415
 whenever such officer is authorized by law to make use of a seal,
and such copies so certified shall be called certified copies.

(2) Any officer who by the ordinary course of official duty is

authorized to deliver copies of public documents shall be deemed
to have the custody of such documents within the meaning of this
section.
****
81. Certified copies of public documents may be produced in proof of
the contents of the documents or parts of the documents of which they
purport to be copies.
*******
Note that the right to receipt of a certified copy of the document depends
upon public right of inspection as well as the document falling under the
definitions in s. 79.

The importance of the accurate compliance with these requirements is

shown in the Tootal Broadhurst Lee case, supra p. 172 There the court, having
reached the decision that the document in question was a public document, went on
to say (pp 32-33):-

“It is not, however, all public documents that can be proved by

means of certified copies but only those ‘which any person has
right to inspect’ There is no evidence before me and I can see
nothing in the law to the effect that the Registrar of designs
keeps or is bound by law to keep a copy of every certificate of
416
 registration which he issued for inspection by the public. He has
to keep a register in which he must enter certain prescribed
particulars concerning every registered design which is open to
public inspection but I cannot see how a certificate of registration
itself which can only be given to the proprietor of the registered
design can be inspected by any member of the public. It seems
to me, therefore, that a certificate of registration does not come
within the category of public documents which can be proved by
means of certified copies. There is another objection to the
admissibility of the documents produced. it is one of form only
but nevertheless valid for that. Section 76 Indian Evidence Act
requires a certificate to be written at the foot of the copy and not
on a separate sheet of paper as has been done here. In my view,,
therefore, the document on which the plaintiffs rely to prove their
ownership of the designs are not admissible under section 74 to
77 Indian Evidence Act.” (ss 79 to 81 K.E.A.)

Owing to the simpler procedure for proof of the contents of public

documents under s. 80 and 81 K.E.S. than those procedures required for the proof
of private documents, it is important that the requirements laid down in ss.79 - 81
be strictly proved before a document tendered in evidence be admitted as a public
document by means of certified copy.

d. Proof of certain public documents.

Section 82 as amended by LN 22/1965 applies:-

417
82. Without prejudice to any other mode of proof, prima facie evidence of
the following public documents may be given in the manner hereinafter
shown, that is to say-
(a) revoked LN 22/1965
(b) revoked LN 22/1965
(c) proceedings of the East Africa Central Legislative Assembly, or
of the legislature of any country in the Commonwealth, by the
journals thereof, or in the case of such Assembly or legislature as
aforesaid, by copies of such journals purporting to be printed or
published by or under the authority of the government of any such
country;
(d) acts, orders or notifications of the executive government of
Kenya , the High Commission of the Organization, or any service
thereof, or any local authority, or of a ministry or department of any
of the foregoing-
(i) by the records of the service, ministry or department certified by
the head of the service or department, or in the same case of a ministry by
the permanent secretary thereof; or
(ii) by any document purporting to be printed or published by the
Government printer;
(e) proceedings of any local authority, r of any corporate body created
by Act or Ordinance, by a copy of the proceedings certified by the person
having the lawful custody of the original thereof, or by a public document
purporting to be printed or published by or by the authority of such authority
or corporate body;

418
 (f) proclamations, treaties and other acts of state of any foreign country or of
any party of the Commonwealth, and judgments, decrees, orders and other judicial
proceedings of any court of justice in such country or part, and all affidavits
pleadings and other legal documents filed or deposited in any such court, by the
procedure required by section 7 of the Evidence Act, 1851 of the United Kingdom
(g) public documents of any other class in a foreign country, by the
original, or by a copy thereof bearing a certificate under the seal of a notary public
or of a British consular officer or diplomatic agent that the copy is duly certified by
the officer having the lawful custody of the original thereof, and upon proof of the
character of the document according to the law of the foreign country.
*****
Note that these special procedures for proof of the listed public documents
are without prejudice to any other mode of proof; i.e these public documents may
also be proved by the other methods set forth for proof of public documents.

Section 7 of the Evidence Act, 1851 (14 & 15 Vict. c.99), referred to in subs.
(f) above, is found in HALSBURY’S STATUTES OF ENGLAND (2nd Edn), vol
9, pp. 566-573; s. 7 reads as follows:-

Proof of foreign and colonial acts of state, judgments, etc.

All proclamations, treaties, and other acts of state of any foreign state or of
any British colony, and all judgments decrees, orders and other judicial
proceedings of any court of justice in any foreign state or in any British
colony, and all affidavits, pleadings, and other legal documents filed or
deposited in any such court, may be proved in any court of justice, or before
any person having by law or by consent either by examined copies of by
419
 copies authenticated as herein-after mention; that is to say, if the documents
sought to be proved be a proclamation, treaty, or other act of state, the
authenticated copy to be admissible in evidence must purport to be sealed
with the seal of the foreign state or British colony to which the original
document belongs and if the order sought to be proved be a judgment,
decree, order or other judicial proceeding of any foreign or colonial court to
which this original document belongs, or in the event of such court having
no seal, to be signed by the judge, or if there be more than one judge, by any
one of the judges of the said court, and such judge shall attach to his
signature a statement in writing on the said copy that the court whereof he is
a judge has not seal, but if any of the aforesaid authenticated copies shall
purport; to be sealed and signed as herein before respectively directed, the
same shall respectively be admitted in evidence in every case in which the
original document could have been received in evidence, without any proof
of the seal where a seal is necessary, or of the signature, or the the truth of
the statement attached thereto, where such signature and statement are
necessary, or of the judicial character of the person appearing to have made
such signature and statement.

e. Proof of documents other than public documents.

Before a document tendered may be admitted into evidence, it must be

proved to be genuine, i.e. it must be proved to be what it purports to be. In
addition, the party tendering the document must offer the best evidence of the
documents which is available, whether this be primary or secondary evidence of
the contents.

420
 Genuineness is a question of prime importance, since the mere production of
a document which purports to have been written or signed by someone is no
evidence of its authorship. As was said in Stamper v Griffin (1856) 20 Ca. 312,
320.

No writing can be received in evidence as a genuine writing until

it has been proved to be a genuine one, and none as a forgery
until it has been proved to be a forgery. A writing of itself, is not
evidence of the one thing or the other. A writing, of itself, is
evidence of nothing, and therefore is not unless accompanied by
proof of some sort, admissible as evidence.
“
In the case of certain kinds of documents, a rebuttable presumption of
genuiness is applied to the document by statute, see infra.
The proof of public documents is covered supra.

1. Proof of execution of documents required by law to be attested.

“To attest” means to witness any act or event, e.g the signature or execution
of a document. Certain documents, wills mortgages, etc., are required by law to be
attested. In these instances:-

71. If a document is required by law to be attested it shall not be used as

evidence until one attesting witness at least has been called for the purpose
of proving its execution, if there is an attesting witness alive and subject tot
he process of the court and capable of giving evidence:

421
 Provides that it shall not be necessary to call an attesting witness in
proof of the execution of any document which has been registered in
accordance with the provisions of any written law, unless its execution by
the person whom it purports to have been executed is specifically denied.
*****

If a document is tendered which is required by the law to be attested, and

there is an attesting witness who:

a. is alive, and
b. is subject to the process of the court, and
c is capable of giving evidence

the witness must be called for the purpose of proving the due execution of the
document before it will be admitted.

Section 72 provides for a procedure where no attesting witnesses are found,

but before that section can become operative, all the process of the court must be
exhausted. Merely taking out a summons and warrant for the attesting witness is
not sufficient

If the document has been registered, objection to its admission on the

ground of denial of due execution must be taken at the trial or it will be held
to have been waived. In Govindji Popatlal v Nathoo Visandji (1962) E.A
372 (p.c) involving a suit on a mortgage which requires attestations by law.
The charge had been registered under S. 32 of the Registration of Titles
422
ordinance (cap. 160) of Kenya Their Lordships said at pp 374 -375:- “The
only other point argued before the Board was a contention by the defendant
that the plaintiff had failed to prove the execution or attestation of the charge
upon which his claim was founded by his failure to call one attesting witness.
This contention was based on s. 68 of the Indian Evidence Act which is in
the following terms:

(S.68 quoted; identical in substance to s. 71 K.E.A.)

It is to be observed that this point was not taken before the Supreme Court,
but only arose out of an additional ground of appeal lodged on the day on
which the case came on for hearing before the court of Appeal. The Court
of Appeal allowed this additional ground of appeal to be argued, but they
rejected it. Their Lordships consider that they were right in doing so.

If the appellant had objected under s. 68 to the admission of the

charge when this document was tendered in evidence by the respondent, the
learned judge would then have had to consider whether the objection was
well founded. If he had sustained the objection the respondent would then
have had an opportunity of complying with the terms of s. 68 by calling
one of the attesting witnesses or by resort to s. 69 (s.72 K.E.A). But no
objection was taken by appellants counsel and no cross examination was
directed to the respondent. The case thereafter proceeded upon the footing
that the charge had been validly executed and the appellant’s argument
before the trial judge was principally directed (to other matters). Their
lordships consider that where a case has been conducted upon the footing
that a document has been properly admitted in evidence, it is not open to a
423
 party on appeal to argue that owing to some defect in the proof the document
ought not to have been admitted.. The charge was not inadmissible, but
could according to s. 68 and s. 69 be proved in a certain manner. The
objection could only be to the mode of proof.. In the whole circumstances
their lordships are satisfied having regard to the conduct of the trial the
appellant must be held to have waived any objection to the admissibility of
the charge”.

See also Coast Erick Works v Raichand ltd (1964) E.A. 187, 195 (C.A.); (1960)
E.A. 361, 364, 365 (C.A.) Popatlal’s case in the Court of Appeal where
WINDHAM, J.A discusses how s. 68 I.E.A. is overridden by the provisions of the
Registration of Titles Ordinance.

“The only other point argued before the Board was a contention by
the defendant that the plaintiff had failed to prove the execution or
attestation of the charge upon which his claim was founded by his failure to
call one attesting witness. This contention was based on s. 68 of the Indian
Evidence Act which is in the following terms

(S. 68 quoted; identical substance to s. 71 K.E.A.)

It is to be observed that this point was not taken before the Supreme Court,
but only arose out of an additional ground of appeal lodged on the day on
which the case came for the hearing before the Court of Appeal. The Court
of Appeal allowed this additional ground of appeal to be argued, but they
rejected it. Their lordships consider that they were right in doing so.

424
 If the appellant had objected under s. 68 to the admission of the
charge when this document was tendered in evidence by the respondent, the
learned judge would then have had to consider whether the objection was
well founded. If he had sustained the objection, the respondent would then
have had an opportunity of complying with the terms of s. 68 by calling one
of the attesting witnesses or by resort to s. 69 (s.72 K.E.A.). But no
objection was taken by appellants counsel and no cross examination was
directed to the respondent. The case thereafter proceeded upon the footing
that the charge had been validly executed and the appellant’s argument
before the trial judge was principally directed (to other matters).. Their
lordships consider the where a case has been conducted upon the footing that
a document has been properly admitted in evidence, it is not open to a party
on appeal to argue that owing to some defect in the proof the document
ought not to be have been admit. ... the Charge was not inadmissible, but
could according to s. 68 and s. 69 be proved in a certain manner. The
objection could only be to the mode of proof.... In the whole circumstances
their lordships are satisfied having regard to the conduct of the trial the
appellant must be held to have waived any objection to the admissibility of
the charge”

See also Cost Erick Works v Raichand ltd (1964) E.A. 187, 195 (C.A. (1960) E.A.
Popatlal’s case in the Court of Appeal where WINDHAM J.A discuses how s. 68
I.E./A. is overridden by the revisions of the Registration of Titles Ordinance.

Section 71 is, however subject to a number of exceptions: see SARKAR, pp

644 - 645 These are:-
425
 1. When the executing party admits the execution for purposes of the
trial.

33. The admission of a party to an attested document, of its execution by

himself, shall be sufficient proof of its execution as against him, though it be a
document required by law to be attested.

*****

This admission must be unqualified and goes only to the execution of the
document, which means here not only admission of his signature on the document,
but also admission of valid attestation of the signature of the attesting witness.

2. When the opponent, by his prior conduct, is estopped from denying

execution

See chapter on Estoppel, Infra

3. When the document is in the possession of the adverse party who

refuses to produce it after notice

In these circumstances, the provisions of s. 95 K.E.A. apply

95. The court shall presume that every document called for and not produced after
notice to produce was attested, stamped and executed in the manner required by
law.
426
*****

This presumption fulfills the requirements of proof of genuineness under the

circumstances set forth, and secondary evidence may then be given of its existence,
condition and contents under S, 68(1) In addition, the party who has refused to
produce the document after notice cannot afterwards use the document as
evidence without the consent of the other party or the order of the court: s. 172
K.E.A..

4. When the opposing party produces the document and claims an

interest under it.

By claiming an interest under the same document; the opposing party admits
the validity or genuineness of the document by implication.

5. When document is 20 years old or older

See discussion of s. 96 K.E.A., documents twenty years old, under section
dealing with presumption relating to documents, Infra

6. When the document is tendered as against a public officer who is bound

by law to have it executed and who has dealt with it as a document duly
executed.

7. When the attesting witness has signed the instrument merely in pursuance
of a ruin in some court and such court has subsequently recognized the
validity of the instrument by acting upon it.
427
 9. When the attesting witness refuses to testify

For example, when the attesting witness is privileged and cannot be

compelled to testify or even if he is not privileged, the proponent should be
excused provided that there is no provable collusion.

10. When the document has been registered under the provisions of any
written law.

The proviso to s. 71 supra applies. If the document is registered, the

attesting witness need not be called unless the person who purportedly executed
the document specifically denies that the did infact, execute it.

11. If the attesting wittiness does not recollect or denies the attestation

74. If the attesting witness denies or does not recollect the execution of a
document, its execution may be proved by other evidence.

*****
2. Proof where no attesting witness found.

Assuming that a document which is required by law to be attested is, in fact

attested, the problem arises as to how the document is to be provided if the
attesting witnesses have, in the normal passage of time, died moved away, or
otherwise become unavailable to prove their own attestations.

428
 72. Where evidence is required of a document which is required by law to be
attested, and none of the attesting witnesses can be found, or where such
witness is incapable of giving evidence or cannot be called as a witness
without an amount of delay or expense which the court regards as
unreasonable, it must be proved that the attestation of one attesting witness
at lease is in his handwriting, and that the signature of the persons executing
the documents is in the handwriting of that persons

******

The conditions precedent to admission in S. 72 are similar to the

requirements in ss. 33, 32, 35(1) and 63(2) except that the death of the
attesting witness is not specifically listed.

After proof of the applicable condition precedent to there must be further

proof (a) that the attestation of one of the attesting witnesses is in his handwriting,
and (b) that the signature of the person executing the document is in his
handwriting. See pp. 125 etc on roof of handwriting.

3. Proof of attested documents not requiring attestation.

Where a document is attested, though not required by law to be attested,

proof fall under s. 75

75. An attested document not required by law to be attested may be proved as if it

was unattested.

429
******

4. Proof of the contents of documents.

64. The contents of documents may be proved either by primary or by secondary

evidence

****

The distinction between primary evidence and secondary evidence is

important in that public documents, for example, may usually be proved by
secondary evidence in the form of certified copies, etc., where as private
documents may be proved by secondary evidence only in certain limited situations.
Definitions of the terms are founding ss. 65 and 66

a. Primary and secondary evidence of documents

65.(1) Primary evidence means the document itself produced for the inspection of
the court.
(2) Where a document is executed in several parts, each part is primary
evidence of the document.
(3) Where a document is executed in counterpart, each counterpart being
executed by one or some of the parties only, each counterpart is primary evidence
as against the parties executing it.
(4) Where a number of documents are all made by one uniform process, as in
the case of printing, lithograph or photography, each is primary evidence of the

430
contents of the rest; but where they are all copies of a common original they are
not primary evidence of the contents of the original.

66. Secondary evidence includes:-

(a) certified copies given under the provisions hereinafter contained;

(b) copies made from the original by mechanical processes which in
themselves ensure that accuracy of the copy, and copies compared with such
copies;
(c) copies made from or compared with the original;
(d)counterparts of documents as against the parties who did not execute
them;
(e) Oral accounts of the contents of a document given by some person who
has himself seen it

******

The existence of primary evidence normally excludes admission of

secondary evidence unless one of the conditions set forth in s. 68 is shown to exist.

The equivalent section of the I.E.A. (s.68) includes the following illustrations of
secondary evidence:-

a. A photograph of the original is secondary evidence of its contents, though

the two have not been compared, it is proved that the thing photographed was the
original.

431
 b. A copy compared with a copy of a letter made by a copying machine is
secondary evidence of the contents of the letter, if it is shown that the copy made
by the copying machine was made from the original.

c. A copy transcribed from a copy, but afterwards compared with the

original, is secondary evidence; but the copy not so compared is not secondary
evidence of the original, although the copy from which it was transcribed was
compared with the original.

Unlike certified copies of public documents which are presumed to be

correct under the provisions of s. 83, the correctness of other copies must be
proved by proper evidence.

Counterparts. Where an instrument is executed in duplicate or triplicate, and

each party signs all the copies and each keeps one copy, each instrument is treated
as an original document and is primary evidence of all the other parts. When each
of the instruments is executed or signed by the party who is to be bound by it, and
each party delivers to the others, the documents are called “counterparts” and each
is evidence against the party who executed it and is secondary evidence of the
other.

Note the distinction. In the first instance all parties have signed each
document, each keeps a copy signed by all, each is an original and each is primary
evidence of all the others. Counterparts are not executed by all the parties but by
“one or some of the parties only” (s. 65(2), and each counterpart is primary
evidence only as against the party or parties who signed that document.

432
 The approach to the problem of determination of whether a document is an
original or a copy is illustrated by D.P.P Tanzania v Mathani, (1966) E. A 13 (C.A.)
facts set forth on p. 85 In considering the admissibility of the cyclostyled loose leaf
volume purporting to be an agency list issued by the I.A.T.A., the court at pp 15 -
16 said: -

“By s. 64 of the Indian Evidence Act as applied to

Tanzania, a document must, except in the cases referred to in s.
65 be proved by primary evidence. By s. 62 primary evidence
means the document itself.. That section also provides that
where a number of documents are all made by one uniform
process such as printing each is primary evidence of the contents
of the rest, but where they are copies of a common original they
are not primary evidence of the contents of the original. The
document produced in this case is a loose leaf volume apparently
produced by a process capable of making any other documents
uniform with he leaves of the volume produced. The Chief
Justice stated that the document was clearly not an original nor
was it authenticated in any way. With respect to the Chief
Justice it is not clear why he considers that it was not an original
document nor why he considers that it was not authenticated in
any way. As regards the authentication it was produced by the
secretary of the I.A.T.A. Agency Investigation Board for East
Africa as the ‘official list of agency’ for Africa and it purports on
its face to be the I.A.T.A. agency list. It is not clear what further
authentication is necessary. As regard the question of it being a
copy and not an original, it is not clear of what the Chief Justice
433
considers it to be a copy. There is not suggestion that there
exists a signed or certified original and we consider in the
absence of evidence to that effect that it is extremely unlikely
that any such signed or certified original exists or ever existed.
There are probably a considerable number of precisely similar
documents in existence all made by a uniform process and all
therefore originals. it may well be that in one or more countries
throughout the world there is an officer whose duty is to amend
and keep up to date a particular volume. But by that very fact
the other documents are not copies of the amended document nor
by virtue of an amendment to a particular document, do the other
documents cease to be originals - they continue to be originals of
the particular edition of the document. From time to time,
doubtless cyclosstyled leaves with the amendments incorporated
are sent to their holders of these volumes so that these leaves can
be inserted in place of the existing relevant leaves. It is for this
reason, probably that the documents are prepared in loose leaf
form. These amended cyclostyled leaves are themselves
originals and it is almost certain that the manuscript amended
copies of the leaves are destroyed as no longer being of any
value once each amended leaf in cyclostyled leaves are
themselves originals and it is almost certain that the manuscript
amended copies of the leaves are destroyed as no longer being of
any value once each amended leaf in cyclostyled form has been
produced. Be that as it may, there is no evidence that this
document is a copy of any other document nor do we see any
reason to assume that such is the position. For these reasons we
434
 are, with respect, unable to agree with the Chief Justice that the
documents was not properly proved and that there was no
evidence that the Dar-es-Salaam Office was neither approved nor
listed.”

b. The “best evidence” requirement.

67. Documents must be proved by primary evidence except in the cases

hereinafter mentioned

**********

68.(I) Secondary evidence may be given of the existence, condition or contents of

a document in the following cases -
(a) When the original is shown or appears to be in the possession or power of
(i) the person against whom the document is sought to be proved or
(ii) a person out of reach of, or not subject to, the process of the court; or
(iii) any persons legally bound to produce it, and when, after the notice required
by section 69 of this Act has been given, such person refuses or fails to produce it.
(b) when the existence, condition or contents of the original are proved to be
admitted in writing by the person against whom it is proved, or by his
representative in interest;
(c) when the original has been destroyed or lost or when the party offering
evidence of its contents cannot, for any other reason not arising from his own
default or neglect, produce it in a reasonable time;
(d) When the original is of such a nature as not to be easily moveable;

435
 (c) when the original is a public document within the meaning of section 79
of this Act;
(f) when the original is a document of which a certified copy is permitted by
this Act or by any written law to be given in evidence;
(g) when the original consists of numerous accounts or other documents
which cannot conveniently be examined in court, and the fact to be proved is the
general result of the whole collection
(2)(a) In the cases mentioned in paragraphs (a), (c) and (d) of subsection (1) of this
section, any secondary evidence of the contents of the document is admissible.
(b) In the case mentioned in subsection (1)(b) of this section, the written
admission is admissible.
(c) In the cases mentioned in paragraphs (e) and (f) of subsection (1) of this
section, a certified copy of the document, but no other kind of secondary evidence,
is admissible.
(d) In the case mentioned in subsection (1)(g) of this section, evidence may
be given as to the general result of the accounts or documents by any person who
has examined them, and who is skilled in the examination of such accounts or
documents,
*********

In addition to listing seven specific instances where secondary evidence of a

document as defined in s. 66 may be produced rather than the original, the section
sets forth limitations on the kind of secondary permissible in each instance. In
summary, these are:

1. When the original is or appears to be in the possession of power of -

a. the opposing party; or
436
 b. a person not subject to the process of the court; or
c. someone legally bound to produce it;

When the document is not produced after demand by notice under s. 69 Any
secondary evidence of the contents of the document is admissible

The reason for the exception is that the party tendering the secondary
evidence has done all in his power to secure the original but has been unable to do
so.

Lakman Ramji v Shivi Jessa & sons (1965) E.A 125 (K) considered a
situation where the document was in the power and possession of the person
against whom the document was sought to be proved; s. 68 (1)(a)(i).

This suit for payment in respect of extra work done under a building contract, and
the defence was raised that the parties had discussed the claim and it was agreed
that a set sum would be accepted in settlement, and that a cheque had been
tendered and accepted .
At the trial, evidence was called to show that the cheque was sent to the
appellant in an envelope with a letter which state that the cheque was in full
settlement of the account. The appellant claimed that there was an agreement
and alleged that he had received only the cheque without the covering letter.
A carbon copy of the letter was produced, and the magistrate relied on the
letter as well as the receipt on the back of the cheque and the respondents
evidence concerning the agreement. On appeal the point was raised whether
the magistrate had properly admitted the copy of the covering letter to prove
its contents. The court said on p. 127:-
437
 “It is a question as to whether the copy of the covering
letter was proved to have been delivered to the appellant with the
cheque sufficiently to allow secondary evidence of its contents to
be proved by a carbon copy of the letter which the magistrate
was satisfied had been in fact written to contemporaneously to
accompany the cheque which the appellant said had been put
into an envelope together with the cheque for delivery to the
appellant and of course it was clear that the appellant had in fact
received the cheque. In the circumstances I think it was not an
unreasonable inference that the appellant had also received the
covering letter.

There does not appear to have been any objection the lower
court to the admission of secondary evidence of the contents of the
covering letter though of course its receipt was denied.
In all the circumstances I am not inclined to say that the admission of
secondary evidence was wrong
68(1)(a)(iii)
As to a. “any person legally bound to produce it”, the difficulties in interpretation
of the clause have been noted by SARKAR on p. 618.

“The interpretation of this part of cl. (a) is not free from difficulty and
commentators have speculated upon its true intention, whatever the
wording may be. It purports to provide for a case where the original
is in possession of ‘any person legally bound to produce it’ As to the
latter, a witness may be justified in refusing to produce a document
438
 where it is, e.g (giving examples)... and which that other would
himself be justified in withholding .. In such cases a witness is not
compellable by law to produce the document. If, on the other hand, a
document is in the possession of a person (not a party) who has not
privilege of the above kind withhold it an who is therefore ‘legally
bound to produce it’, a party would under the plain works of cl. (a) be
entitled to give secondary evidence straightway when the stranger
fails to produce the document after notice under s.66 (I.E.A.) without
even having to take out summons or other compulsory processes...
That would be strange, although that is the result if the clause is
literally interpreted. Is that the meaning of the clause and does it
apply only to such a case? Markby is of opinion that the intention was
to reproduce the English rule and what was probably meant was not
legally bound to produce it’, the word ‘not’ being inadvertently
omitted. This would make the meaning quite intelligible. (workby, p.
158)”

2. When it is proved that the opposite party or his representative in interest)

has admitted the existence, condition or contents of the document in writing, the
written admission is admissible. The reason is that the written admission is
sufficient guarantee of truth.

3. When the original is lost, destroyed, or cannot be produced in a

reasonable time, but not if this is a result of the default or neglect of the party who
wishes to produce it; any secondary evidence of the contents of the document is
admissible. The reason is that the party tendering the secondary evidence has done
all in his power to secure the original but has been unable to do so.
439
 If the document has been lost or stolen, it must be proved, (a), that an
original document existed ; and (b) that a diligent search has been made and all
sources have been exhausted. If the document is claimed to have been destroyed,
evidence must be present of the actual destruction, or at least sufficient to raise a
strong presumption that it was, in fact destroyed.

4. When the original document is of such a nature as not to be easily

moveable, any secondary evidence of the contents of the document is admissible.
The reason is considerations of convenience.

5. When the original is a public documents (s.79) , a certified copy of the

document is admissible, but no other kind of secondary evidence. The reason is
considerations of convenience.

6. When the K.E. A. or any other written law allows a certified copy of the
document to be admitted, the certified copy is admissible but no other kind of
secondary evidence.

7. When the originals consist of numerous accounts or other documents

which cannot be examined conveniently in court, evidence may be given as to the
general result of the documents by any person who has examined them and who is
skilled in the examination of such accounts or documents. The reason is
convenience and to save public time.

J.B. N. D’Sa v R., (1957) E. a 627 (U) dealt with the requirements of subs (g)
K.E.A. ... The appellants bank clerks were convicted of fraudulent false
440
accounting and stealing from their employer. At the trial a Bank Inspector gave
evidence for the prosecution of his searches in books of account of the bank. On
appeal the appellants contended that neither the original accounts referred to in the
Inspectors evidence nor copies were adduced, and accordingly the Inspector’s
evidence being secondary evidence, was inadmissible. The court said on pp 629-
630:-

“For this evidence to be admissible under s. 63 or the Evidence ordinance,

the following requirements had to be satisfied;-

(1) the witness had to be skilled in examination of the documents in question;

(2) the witness must himself have examined the documents;
(3) the documents must consist of numerous accounts or other kinds of
documents, not capable of being conveniently examined in court;
(4) the secondary evidence must be for the purpose of proving the general
result of the whole collection.

The first two of the above requirements were clearly satisfied, and were not
in dispute. For the purposes of the third and fourth requirements one must consider
precisely what the original documents were. The witness spoke of the saving bank
detail book and also of ‘all the savings account ledger sheets in the bank but still
open and those closed since 1953’ terminating in the three relevant sets of digits.
The result of his researches, the witness said, was that the he could find no entries
in those documents corresponding to the three entries in the tellers sheet which the
prosecution alleged to be false.

441
 I think it quite clear that requirements No. 4 was satisfied. As to
requirement no. 3 it is argued that the accounts were not ‘numerous’. In particular
it is said that the number of savings bank accounts bearing an identifying number
ending in the same three figures could not be large. On this point there was not
precise evidence beyond the witness’s statement that he examined ‘all’ such
accounts. But, from what the witness had said I think the magistrate was justified
in finding that the accounts in question were at least to numerous to make it
convenient to carry out examination of them for the purpose of proving the non -
existence of particular item in court. Accordingly I think the requirements of s. 63
were satisfied and that the secondary evidence was admissible.”( )

Note that the party producing the secondary evidence is not relieved of his
obligations to prove the execution of the document just as if he were producing the
original document, except in the case of an ancient document (s.96)

As a general rule there must be evidence of the execution of a document

before there is evidence of its contents, but under s. 144 the court may allow
evidence of contents first provided that the party tendering the document assures
the court that proof of execution will be presented. Then, of course, one
magistrate must ensure that such proof of execution is forthcoming if the
document is considered.

If there is no objection to the admission of secondary evidence, the party

failing to object waiver his right to object, and cannot later object to the document
having been admitted. See Govindji Popatlal v Nathoo Visanji (1962) E. A. 372
(P.C. Supra pp. 178 -177.

442
 Notice to produce a document; as applied to s. 68(1)(a).

69. Secondary evidence of the contents of the document referred to in section

68(1)(a) of this Act shall not be given unless the party proposing to give such
secondary evidence has previously given to the party in whose possession or power
the document is, or to his advocate, such notice to produce it as is required by law
or such notice as the court considers reasonable in the circumstances of the case:

Provided that such notice shall not be required in order to render secondary
evidence admissible in any of the following cases:-

(i) when the document to be proved is itself a notice;

(ii) when from the nature of the case, the adverse party must know that he
will be required to produce it;
(iii) when it appears or is proved that the adverse party has obtained
possession of the original by fraud or force;
__________
*
The question as to whether an investigation officer of the rank of inspector was a
person “skilled in the examination of such documents” arose in J.N.L. Brown v R
(1957) E. A 371, 373 (C.A.).
The court discussed how the evidence had come to be given and in the
circumatances, concluded that it was admissible.

(iv) when the adverse party or his agent has the original in court;

443
 (v) when the adverse party or his agent has admitted the loss of the
document;
(vi) when the person in possession of the document is not of reach, of
not subject to, the process of the court; (vii) in any other case in which
the court thinks fit to dispense with the requirements.
*********

The object of the requirements is to give the opposing party an opportunity

to produce the document if he wishes. If the document is not produced, the party
giving the notice may present secondary evidence of its contents under s.66 (1)(a).
Notice to produce under these circumstances does away with the argument that the
party asking for production has not done all in his power to procure the original
document for submission to the court.

Read together, the two sections present some difficulty. Section 69 refers
only to the “contents” of the documents mentioned in s. 68(1)(a), whereas the latter
refers to secondary evidence of the existence, condition and contents of the
document. It would appear therefore, that in those instances when the notice is
required secondary evidence, after refusal or failure to produce, may be given only
of the contents of the documents, and not its existence or conditions; on the other
hand, in those instances where the notice is not required for one of the reasons
listed in the proviso to s. 69 secondary evidence may be given of the existence and
condition of the document, as well as the contents.

If the documents is in fact produced after notice has been given, the party
calling for its production is bound to use its evidence.

444
 171. When a party call s for a document which he has given the other
party notice to produce, and such documents is produced and
inspected by the party calling for its production he is bound to give it
as evidence if the party producing it requires him to do so and if it is
admissible.
*************
On the other hand, if the party in whose possession or power the document is
refused to produce it, that party cannot thereafter use it as evidence without the
consent of the party who called for its production, or by order of the court.

172.When a party refuses to produce a document for which he has had

notice to produce, he cannot after words use the document as evidence
without the consent of the other party or the order of the court.
******
Non - production may raise the presumption that the document, if produced,
would prove to be unfavorable to the person who fails to produce it; s. 119,
illustration (g), see p. 88, supra.

If the document is not produced, there is a presumption of due execution

under s. 95:-

95. The court shall presume that every document called for and not
produced after notice to produce was attested, stamped and executed
in the manner required by law.

d. Production of documents of doubtful admissibility

445
170. (1) A witness summoned to produce a document shall, if it is in his possession
or power, bring it to court notwithstanding any objection which there may be to its
production or admissibility, but the validity or any such objection shall be tried by
the court.

(2)(a) The court, if it sees fit, may inspect the document unless it is a document to
which the provisions of section 131 of this Act are applied, r take other evidence
to enable it to determine on its admissibility.

(b) If for such purpose it is necessary to cause any document to be translated,

the court may, if it thinks fit, direct the translator to keep the contents secret,
unless the document is to be given in evidence.
*******
The provisions of the section are mandatory, and apply whenever the
witness summoned has the document in his possession or power regardless
whether an objection will be made to its production under a claim of privilege (e.g
the privilege relating to official records under s. 131) or to its admissibility.
Determination of admissibility rests solely with the court, which may either inspect
the document (Unless the claim of privilege is made under s. 131) or take other
evidence on the question.(*)

5. Proof of allegation that persons signed or wrote a document

70. If a document is alleged to be signed or to have been written wholly or in part

by any person, the signature or the handwriting of so much of the document as is
alleged to be in that persons handwriting must be proved to be in his handwriting.
*******
446
 On proof of handwriting, see pp. 125 - 130 supra. The section is directed
towards proof of genuine of the document.

6. Proof of documents by certificate without witness called

a. Reports by Government analysts and geologists.

77.(1) In criminal proceedings any document purporting to be a report

under the hand of a Government analyst or of any geologist employed
in the public service upon any matter or thing submitted to him for
examination or analysis may be used in evidence.

(2) The court may presume that the signature to any such document is
genuine and that the person signing it held the office and
qualifications which he professed to hold at the time when he signed it.

(3) When any report is so used the court may, if it thinks fit summon
the analyst or geologist, as the case may be and examine him as to the
subject mater thereof.
----------
* In this connection, see Civil Procedure (revised) Rules, 1948, as amended,
orders XII and XIII.

This section did not appear in the I.E.A... The analyst or geologist must be
classified as an expert witness, but the section is an exception to the requirements
of appearance of the expert and the presentation of fact before opinion, for the

447
report deals with facts found by or through the examination or analysis rather than
with matters of opinion. (see p. 124 supra)

The section formerly appeared in the C.P.C. as s. 195 deleted by Act

46.1963, second schedule.

Note that the section applies only to criminal proceedings, in which the
section raises a presumption as to the genuine of the signature which the document
bears and the qualification which the sinner professes to hold at the time of signing.
It appears that in civil proceedings a report by a Government analyst or geologist
must be produced and authenticated in the normal manner.

The section is similar in terms to s. 234 C.P.C. dealing with the admission of
signed reports by medical officers in preliminary inquirers by subordinate courts
which reads:-

234.(1) AT any preliminary inquiry under this part, any

document purporting to be a report under the hand of a medical
officer or other medical practitioner upon any examination or
analysis carried out by him shall, if it bears his signature, be
admitted in evidence.

(2) The magistrate may presume that the signature to any such
document is genuine and that the person signing it hold the
office or qualifications which he professed to hold at the time
when he signed it.

448
Section 234 C.P.C. covers report by medical officers employed by the Government,
and reports of other medical practitioners, whereas s. 77 refers only to Government
analysts and geologists. A question is raised as to whether a medical examination
may be classified as an “analysis” so as to allow a report to be admissible before
the High Court under s. 77 K.E. A. Note however, ss 209 C.P.C. dealing with the
admissibility of the deposition of a medical witness in a subordinate court and 304
C.P.C dealing with the deposition of Government analysts, medical officers or
other medical practitioners.

Under s. 77 KEA and s. 304 CPC the court may, if it thinks fit summons and
examine the analyst making the report or the medical officer or practitioner who
made the deposition. This provision is not found in s. 234 CPC hence at a
preliminary inquiry, medical officer or medical practitioner who made the report
may not be summoned and examined on the subject matter of the report.

It was noted in the case of Kapoor Singh s/so Harnam Singh v R. (1951), 18
E.A.C.A 283, 266 in considering the equivalent section in the Tanganyika CPC (s.
154) that the section.

“.... is merely an enabling section authorizing the reception in

evidence of the report of a Government Analyst and dispensing with
formal proof of the signature to such report. It does not preclude the
prosecution or the defense from proving the nature of an exhibit by
other expert evidence”

b. Photographic evidence - admissibility of certificate

449
 78. (1) IN criminal proceedings a certificate in the form in the
schedule to this Act, given under the hand of an officer appointed by
order of the Attorney General for the purpose, who shall have
prepared a photographic print or a photographic enlargement from
exposed film submitted to him shall be admissible, together with any
photographic prints, photographic enlargement and any other annex
referred to therein, and shall be evidence of all facts stated therein.
(2) The court may presume that the signature to any such certificate is
genuine.
(3) When a certificate is received in evidence under this section the
court may, if it thinks fit summon and examine the person who gave it.
*******

This is another section deleted from the CPCP by virtue of Act 46/1963; s. 196.
The photograph are primary evidence under s. 65(4):-

“Where a number of documents are all made by one uniform

process as in the case of ... photography, each is primary
evidence if the contents of the res....”

The problem with photographs is one of establishing genuineness, i.e. no

retouching or altering; of either negative or print. The certificate, reproduced
below, certifies genuine as well as establishing the chain of possession” (from the
schedule to the Act.

450
I, _____________ to__________ being an officer appointed by
the_____________ under __-- Gazette Notice NO. _______ of_______) hereby
certify as follows:-
(1) on the ..... day of ..... 19...... at .... I received a sealed packet
numbered...... purporting to be signed by........exposed photographic films (s) and /
or enlargements(s).
(2) The said letter and packet were each signed and dated by me and are
attached hereto as annexes 1 and 2 respectively..
(3) In pursuance of the said request : ( I processed) the said film(s) were
processed under my supervision and (prepared) therefrom photographic prints(s)
and / or enlargement(s) (each of ) were prepared which I have signed and meet
attach hereto as annex(es).......
(4) The photographs print(s) and / or enlargements (s) attached hereto as
annex(es) .... is / are nearly as may be (an) exact reproductions(s) from the exposed
film(s) submitted to me as aforesaid and have in no way bee retouched, altered or
otherwise interfered with in the process of their preparation.
Given at_____________under my hand this__________day
of__________19----------
(Signed)________

In civil cases the method of proving genuiness and possession of

photographic negatives and prints is the same with the exception that the
photographs or enlargements are not admissible under a certificate. The same
information must be given, but by the person who did the processing and printing
under oath in court and subject to cross examination. Normally the photographer
is also called, if he did not do his own developing and printing, to give information
as to time of day, exposure and other technical information, Camera angles etc.
451
f. Admissibility as to statements in documents when made under special
circumstances

Certain kinds of statements in documents are admissible because of the

“special circumstances” under which they were made which raise presumptions of
genuiness or accuracy. (see presumptions as to documents section, infra. Sections
37 -41 state the rules as to the admissibility of these statements.

1. Entries in books of account.

37. Entries in books of account regularly kept in the course of business are
admissible whenever they refer to a matter into which the court has to inquire, but
such statements shall not alone be sufficient evidence to charge any person with
liability.
...................

SARKAR notes on pp 383 - 384:-

“ The principle of admissibility is the same as in the case of

entries by deceased persons ‘in the ordinary course of business’ ...
Here there is the same circumstantial guarantee of
trustworthiness. The expression ‘regularly kept into he course of
business’ is for all practical purpose the same be ‘ in the ordinary
course of business’. It is enough to say that any form of books, if
regularly kept as a book of account’ can answer the description.
Loose sheets or scraps of paper are obviously very unsatisfactory
452
 and can hardly be called books of account. ... An individual
memorandum or casual entry does not satisfy the requirements
There must be a system or regular habit of making entries in the
course of business. The system need not be elaborate and the
nature of the business determines in meet cases the form of
books to be kept.....
It must be shown to be in a book, that must be book of
account and that account must be regularly kept in the course of
business. The term book ... signifies a collection of sheets of
paper bound together with the intention that such binding shall
be permanent and the papers used collectively in the volume.
Unbound sheets of paper, in whatever quantity, though filled up
with one continues account are not a book of account within (the
section)”

As to “regularly kept in the course of business”, SARKAR from p. 384:-

“Regularly or systematically means that the accounts are

kept according to set of rules or a system, whether the
accountants have followed the rules closely or not. The system
need not be elaborate or reliable. .... This section simply requires
that entries in accounts should be regularly kept in the course of
business. The existence or non existence of personal knowledge
of the person making or dictating the entries is a question which
affects the value, but not the admissibility of the entries”.

453
 The entry in the book of account need not necessarily have been made
contemporaneously, i.e. at the exact time as the occurrence, providing it was made
within a reasonable time so that the memory of the event is still fresh.

As to “such statements shall not alone be sufficient evidence to charge any person
with liability”:-

If the case involves charging a person with liability, either civil or criminal,
the entry or statement alone is not sufficient. In other words, the entry must be
corroborated by some other material evidence before liability can be charged. No
particular kind of corroboration’s required, and the normal rules concerning
corroboration apply. (see pp. 75 - 81, supra) for example, in R v Shah Jirji Popat
(1947), 22 KLR (2) 30, p. 79 supra, the appellant had been convicted of offenses
under the Price Control Regulations, and the Magistrate admitted in evidence
contemporaneous entries made by one accomplice in a personal book, and entries
by another accomplice in his firms cash book. The court said at p. 39:-

“Now even if the entries in the ‘Top money’ book and the case book can be said to
have been properly admitted as evidence under section 34 of the Indian Evidence
Act, it seems plain, quite apart from the considerations to which we will come,
threat they in themselves cannot amount to independent primary evidence. In the
commentary be wood roffe on section 34 (law of Evidence 9th edition p 377) it is
said with reference to authority - books of account when not used to charge a
person with liability (civil or criminal ) may be used as independent evidence
requiring no corroboration but when sought to be so used they must be
corroborated by other substantive evidence independent of them’. However, it has

454
been argued .... that those previous entries by the accomplices amount to evidence
legally corroborative of (their testimony)...”

The court then discussed what is new s. 165 K.E.A. in deciding whether the entries
admitted could themselves provide corroboration’s.

2. Entries in public records.

This section 38 deals with what are, in fact, public documents under subs.
79(1)(b) which states that public records of private documents kept in Kenya a
republic documents.

38. An entry in any public or other official book, or register on record stating
a fact in issue or relevant fact, and made by a public servant in the discharge of his
official duty, or by any other person in performance of a duty specially enjoined by
the law of the country in which such book, register or record is kept, is itself
admissible.
...............

The ground of admissibility of entries under the section in that it is the

public duty of the person making the entries after satisfying himself that they are
true. Therefore the entries are admissible to prove the truth of the facts contained
in the entry as well as to prove the fact that the entry was made by a public officer.
Since a public record is a public document (s79(1)(b), if the conditions precedent
for admissibility set forth in s. 38 are not the procedures for admitting the entries
455
will be the procedures used for admitting public documents. Note, however,
SARKAR’S discussion on p. 428 as to the appropriate reasons for not using the
term “public document” in the section.

The court in Manji Suleman Ladha and others v R. G. Patel and others,
(1960 E.A. 38 (T) considered whether a report of an inspector of vehicles fell
under the definition of “public or other official book, register or record” under the
section in the I.E.A., and said on pp 38-39:-

“The document produced to me is market ‘Police form 93’

and is headed ‘vehicle inspection report’. It contains a space for
‘Defects’ with a space below for the signature of the inspector.
A second part of the form provides for a certificate that the
vehicle has been passed for use in connection with passengers
and goods. The form is numbered and perforated and bears the
word ‘original’. I presume therefore that these forms are bound
up in books and are completed in duplicate, the original being
torn out and handed to the owner of the vehicle and the duplicate
retained for the use of the police.
Now it seems to me quite clear that his is not a ‘public’
record in that it is not intended for the use of the public or any
section of the public, nor so far as I am aware is it available for
public inspection. The original of the form is for the use of the
owner of the vehicle, telling him what repairs or adjustments he
ought to carry out to make the vehicle roadworthy: the duplicate
is presumably for the use of the traffic police, so that they can
check whether the necessary work has been done and if it has not
456
been done can institute proceedings or notify the licensing
authority, as may be appropriate.
Secondly, the record is not in any sense a permanent one.
I do not know how long these particular records are in fact kept.
As I have said, there seems not good reason for keeping them
once the vehicle has been made road worthy or an order has been
made under S. 63(1) of the Traffic Ordinance. The underlying
philosophy of s. 35 of the ordinance Act seems to be that special
credence can be given records which have been prepared by
responsible officials and which were intended to be enduring
records. NONIR, in his PRINCIPLES AND DIGEST OF THE
LAW OF EVIDENCE (2nd Edn) at p. 340 says
‘The working of the section.... imports that the entry will
be of a permanent nature...’
I respectfully agree and I think this absence of any element of
permanence would alone suffice to exclude these vehicle
inspection report from the scope of s. 35.
Thirdly, I think that the records, to come with the
provisions of s. 35 of the Evidence Act, must substantially be
records of facts, even though s. 35 itself merely refers to an entry,
to be admissible, having to be an entry stating a fat. In general,
and ignoring for the amount the particular document before the
court, Vehicle Inspection Reports will, I think, be records of
opinion and not of facts. The most important questions with
which they are likely to deal, such as the degree of efficiency of
brakes or steering or the question whether tyres are worn as to be
dangerous, are essentially matter of opinion, that is to say matters
457
 in respect of which the right of cross examination may be vitally
important.
For all these reasons, I have no hesitation in holding that a
vehicle Inspection Report or Police form 93 is not a public or other
official book, register or record’ for purposes of s. 35 of the Evidence
Act”

Note the reasons for which the document was ruled not to fall under the section:

1. the definition of ‘public record’, similar to that of ‘public document’ i.e.

intended for the use of the public of any action of the public and available for
public inspection, in addition to having been made by a public officer;
2. the element of permanence of the record; and
3. the inclusion of opinion, whereas the entry should consist only of facts.

Entries made by “any other person specially enjoined by the law” were
discussed at length in Chandaria v R (1966) E.A. 246 (C.A) considering s. 38
K.E.A.. There the defendant had been charged with a violation of the exchange
Control Act, and the question of the residence of the defendant was material. The
prosecution sought to prove residence by certain forms which had been completed
by the defendant and his wife and delivered to the immigration authorities. The
documents were then kept in a file and produced out of official custody. It was
submitted by the prosecution that the forms constituted part of an official record
and had been made by the defendant and his wife “in performance of a duty
specially enjoined by the law” of Kenya so as to be admissible under s. 38 It was
never suggested that they were admissible on any other basic.

458
 On appeal to the High Court, the argument of the prosecution was rejected.
The High Court said, (quoted on p. 248 of the Court of Appeal decision):-

“The difficulty arises over records made by public serves

but it does not seem clear that when ‘any other persons’ are
spoken of the legislature has not committed the absurdity of`
saying that every form which under some rule or regulation a
citizen is required to complete before he can do this, or get that
becomes under this section evidence of the truth of the entries
made, not only as against the maker, but also as against a person
who has never seen or heard of the maker. The persons in
contemplation of the legislature are surely persons who though
not public servants, are given the duty of keeping public or
official books and records. We give as an example clergyman
charged with he duty of keeping parish registers, but other
examples can obviously be found.“

After quoting the above passage, the Court of Appeal, per SPRY, J.A., continued

“ Section 38 was derived from s. 35 of the Indian Evidence

Act, 1872, which it follows with only verbal alterations, and it is
certainly wider that the law of England. Counsel for the
Republic argued that we should not allow ourselves to be
influenced by Indian decisions. The Indian Evidence Act dates
back to 1872, when most of the forms that burden life today were
unknown. The Kenya Evidence Act was enacted in 1963 and
must be interpreted against a modern background. he argued that
459
on a natural interpretation ‘any other person’ would include
Kimohand and his wife and he submitted that they were under a
duty imposed by the Immigration Regulations to complete these
forms.

Counsel for the Republic argued that it is a mere matter of

administrative convenience that members of the public are
required to complete these forms: the regulations might equally
well have required immigration officers to question travelers and
record their answers in books. Such books, in counsels submit
would be admissible under s. 38 and there is no logical reason
why the forms which take their place should not also be
admissible.

With respect, we cannot accept that argument. There is a

great difference between forms completed by member of the
public and records made by officials in that an official will or
should apply his judgment to what he records; he will make sure
that the person is interviewing understands the questions put to
him and will challenge any reply which appears to be incorrect.
As their Lordships of the Judicial Committee said in relation to s.
35 of the Indian Act, in Lekraj Kaur v Mahpal Sing (1839) 5 Cal
at p. 754:

‘Then when we find the statements are recorded and

authenticated in the manner that has been mention, and
place in the Government records, ought it not to be
460
 implied that the officer has in effect arrived that the
information embodied in the recorded statements was
true..?

Again, we do not think that the interpretation which

counsel would place on s. 38 gives any value to the use of word
‘specially’. Special is the reverse of general and when the statute
speaks of persons acting in the performance of duties specially
enjoined on them, it would seem that it is referring to duties
which are imposed on particular individuals or the holders of
particular officers or a particular class or category or persons: we
do not think it can apply to duties which devolve in particular
circumstances on every member of the general public

Reading s. 38 whole, we think it is clear that ‘ any other

person’ means any person, not a public servant, who finds
himself under a specific duty to maintain or make entries in any
record of a public or official nature. The learned judges of the
High Court gave an example; others might be the secretaries or
other officers of statutory boards and possibly of public
corporations. We do not think it includes members of general
public completing forms necessary for their individual purposes,
whether or not those forms will eventually form part of the
archives of any Government department. “(emphasis added). In
connection with s. 167 K.E.A., refreshing memory by reference
to contemporaneous writing, in criminal case where a question of
identification arises, and the initial description of an accused has
461
 been recorded at the time in an occurrence book Diary or any
other form of writing, such book wiring should be put in
evidence if admissible under s.38 for the purpose or refreshing
the witness’s memory.

See R. v Mohamed bin Allui (1942), 9 E. A. C. A 72 @ 73.

Note, however, the holding in Yosefu Mukasa v. R.,

(1951), 18 E.A.C.A. 321 where it was said that there is nothing
in s. 33 U.E.O. (the identical section in the Uganda legislation)
which could be construed as modifying the requirements of s. 24
U.E.O. dealing with confessions made to police officers of a
certain rank, so that a confession recorded in an occurrence Book
by an officer below the required rank was not admissible. (The
rank requirement has since been lowered; s.22 substituted by Ord.
20 of 1955, s. 2).

3. Statements, etc., in maps charts and plans.

39. Statements and representations of facts in issue or

relevant facts made in published maps or charts generally
offered for public sale , or in maps or plans made under the
authority any Government in the Commonwealth, as to
matters usually stated or represented in such maps, charts
or plans are themselves admissible.
............

462
 The presumption of accuracy of maps or plans sec. 89, infra, extends only to
those made or published by the authority of the Government or any department of
the Government of any country in the Commonwealth, hence the presumption does
not apply to maps prepared by private sources, whether or not offered for public
sale e.g road maps prepared by oil companies. These maps are however,
admissible in evidence under s. 39 which refers to ‘ published maps or charts
generally offered for public sale” but their accuracy must be proved.

If a map once offered for public sale is withdrawn, it is no longer admissible

under s. 39.

The “matter usually stated or represented in such maps”, etc to which the
“statements and representations of facts in issue” refer, evidently mean
geographical facts such as physical features, boundaries, distances, relative
position of geographical features, districts, towns, villages, etc.

If the officers commissioned to make Government maps ere specially

commissioner to note down certain things, for example the boundaries of estates,
the maps are admissible in evidence as to the boundaries of the estates, and the
information would be presumed to be accurate under S. 89 however for the reasons
stated in the in the discussion of s. 89 infra they would not be evidence of
ownership.

Section 93, presumptions as to books, maps and charts, is also applicable to

maps admissible under this section
463
4. Statement of fact contained in laws and official gazettes etc.

40. When the court has to form an opinion as to the existence of

any fact of public nature, any statement of it shall be admissible
which is made -

(a) in any written law of Kenya, or in any notice purporting to be

made in pursuance of any such written law, where or notice (as
the case may be) purports to be printed by Government printer,
or

(b) in any written law in force in any country in the

Commonwealth, or in any written notice purporting to be made
in pursuance of any such written law, where the law or notice (as
the case may be ) purports to be printed or published by or under
the authority of the Government of that country
.............

As to judicial notice of laws, etc in force in Kneya, see s. 60 (1)(a) p. 143

supra. Proof of public documents of certain types see s. 82 p. 174 supra as to the
presumption of the due making and tenor of the written law or notice, and Gazettes,
after introduction and admission into evidence, see s. 85 infra. Presumptions as to
foreign Gazettes from countries in the Commonwealth, see s. 86 infra

5. Statements at to law contained in books

464
 41. When the court has to inform an opinion as to a law of any
country, any statement of such law contained in a book
purporting to be printed and published under the authority of the
Government of such country and to contain any such law, and
any report of a ruling of the courts such country contained in a
book purporting to be a report of such rulings in admissible.
..........

Statements of law in Acts etc., published under the authority of Government

are made by authorized agents acting in the course of their public duty, and the
official imprimatur guarantees their accuracy. Unofficial books of the rulings of
courts, even though they may not be published under authority, are in constant use
and open to criticism, and it is probable that they are accurate (although in fact
among lawyers some series of the reports are known to be less accurate than
others).

After admission in evidence, the court shall presume the geniuses of the
book under S. 90 see infra.

It should be kept in mind that these statements made under special

circumstances are in effect exceptions to the hearsay rule in that they are made by
persons not called as witnesses.

g. Extent to which statement is admissible.

42. When a statement of which evidence is given forms part of a

longer statement, or a conversation, or of an isolated document,
465
 or is contained in a document which forms part of a book or of a
connected series of letters or papers, evidence shall be given of
so much and no more of such longer statement, or of such
conversation, document, book or series, as the court considers
necessary in the particular case to a full understanding of the
nature end effect of the statement, and of the circumstances in
which it was made.
*****

This rule is founded upon the principles of justice and convenience; on

convenience, for it is only logical that the court not be burdened with amounts of
irrelevant materials which may be part of the longer statements and series and on
justice, for the court by considering as much as is necessary for a full
understanding; of the nature and effect of the statement will be able to view the
relevant portion of the longer statement within its correct context to that the portion
considered will not give a false or misleading impression.

The section may be outlined as follows:-

When the statement of which evidence is given forms part of:-

a. a longer statement or
b.a conversation, or
c. an isolated document, or
d. is contained in a document which forms

466
 1. part of a book or
2. part of a connected series of letters or
3. part of a connected series of papers

evidence shall be given of so much of the longer statement as the court considers
necessary, in that particular case, to a full understanding of:

a. the nature and effect of the statement, and

b. the circumstances in which it was made, and no more.

If a plaintiff, for example, puts into evidence only a portion of a longer

statement, the defendant may, if he feels it necessary for completed understanding,
put the reminder of the statement into evidence.

h. Presumptions as to documents

In addition to the general presumptions under ss. 4 and 119 (see pp 61 - 91,
supra), the K.E. A lists certain specific presumptions which apply to particular
types of documents.
Note that in ss 83 - 91 the sections contain the words “the court shall
presume”, or a variation of the phrase, which is a mandatory direction to the court
that once the conditions precedent in the sections have been met, the presumption
must be applied. Sections 92 - 94 and s. 96 however, contain the phrase “the court
may presume”, which places discretion with the court as to whether the
presumption will or will not be applied. In both instances, however, the
presumption may be rebutted by the presentation of evidence to the contrary.

467
 Therefore, under the definitions found in s. 4 K.E.A. in ss 83 - 91 and 95,
the court, after the conditions precedent have been met, shall “regard such fact as
proved unless or until it disproved’ (s.4(2), and in the case of ss. 92 - 94 and 96 the
court “may either regard such fact as proved, unless and until it is disproved, or
may call for proof of it”. (S.4(1).
In essence, these sections deal with question of admissibility of documents
of certain kinds, for the presumptions are directed towards proof of genuine.

1. Certified documents.

83.(1) The court shall presume to be genuine every document purporting to be a

certificate, certified copy or other document which is-

(a) declared by law to be admissible as evidence of any particular fact and

(b) substantially in the form, and purporting to be executed in the manner,
directed by law in that behalf; and
(c) purporting to be duly certified by a public officer

(2) The court also presume that any officer by whom any such document purports
to be signed or certified held, when he signed it, the official character which he
claims in such document.
********

Note that the section does not apply to original documents, but only to
certificates, certified copies or either documents which meet the requirements set
forth in subs. (1)(a) through (c).

468
 There are two presumptions:-

(a) that the document is genuine, and

(b) that the officer who pruportedly signed the document or certified it, held,
At that time, the official character he claims in the document

2. Records of evidence.

84. Whenever any document is produced before any court, purporting to be

a record or memorandum of any evidence given in a judicial proceeding before any
officer authorized by law to take such evidence, and purporting to be signed by a
judge or magistrate or any such officer as aforesaid, the court shall presume -
(a) that the document is genuine;
(b) that any statements as to the circumstance in which it was taken,
purporting to be made by the person signing it are true and
(c) that such evidence was duly taken.
*****

This section dispenses with the necessity of formal proof of genuine, but
does not deal with the questions of admissibility and relevancy. (see, for example,
S 34 p 160 et seq)

469
 The present section in the KEA differs in wording from s. 80 IEA from
which it was derived, which read (deleted portions underlined);-

80. Whenever any document is produced before any Court purporting

to be a record or memorandum of the evidence, or of any part of the
evidence, given by a witness in a judicial proceedings or before any
officer authorized by law to take such evidence or to be a statement or
confession of any prisoner or accused person, take in accordance with
law and purporting to be signed by any judge or Magistrate or by any
such officer as aforesaid, the court shall presume - (etc)...

The removal of the underlined words from the present section as well as the
repeal in 1930 (ord. No. 11/1930) of those section in the old C.P.C. setting forth
the manner in which a confession should be recorded by a magistrate clearly
removed the effect of those decisions which had indicated that there was no onus
upon the prosecution to prove the voluntariness of a confession tendered in
evidence, e.g. R v Ikojot and Angellu, (1917) 2 U.L.R. 261 Also inapplicable at
the present time are cases such as R v Mabara bin Petro (1936), 3 E.A.C.A 110,
interpreting the phrase taken in accordance with law” in relation to an extra judicial
confession, and R v Sarwan Singh (2951), 21 E.A.C.A 183, considering the same
phrase in a prosecution for perjury.

On the question of the onus of proof and the former s. 80 I.E.A see Durand,
Confessions in East Africa, 4 E.A.L. J. 79 @ p. 104.

470
 In s. 78 U.E.A. there is included a presumption “that the evidence recorded
was the evidence actually given” see e.g. R v Allibhai Mithin (1945), 12 E.A. C. A
54., These words are not contained in s. 65 K.E.A nor were they found in s. 80
I.E.A. There is, however some indication of the feeling of the Court of Appeal on
the matter from the following obiter is found in Antoine Enesta v R 1962 E.A. 505
(c.a. at pp 508 - 509:-)

“Without finally coming to a conclusion on the matter, we are

prepared to accept for the purpose of this appeal that the
production of a record containing the testimony of a witness
taken in accordance with the law is evidence of the testimony
given by the witness. Whether such evidence is the best
evidence of such testimony and whether it can be rebutted we
leave for consideration on another occasion, as the matter does
not arise in this case.”
The matter has not been considered since this decision, and the question as to
whether the obiter would be applied to s. 84 K.E.A. in its present form is still open.

As to depositions, see Magoti s/o Matogali v R., (1953), 20 E.A.C.a 232,

where a deposition was used to impeach the credit of a witness. The court noted
that it was unnecessary to call the clerk from the Magistrate’s court to prove the
deposition, as it was transmitted to the High Court under relevant provisions in the
C.P.C and formed part of the record; also depositions are signed by the committing
magistrate (again under the CPC) as well as by a witness and “ may generally be
put in evidence without further proof (section 80 Indian Evidence Act). It is only
in the rare case where some objection is made to the signatures or to the accuracy
of the record that further proof is required.” (emphasis added).
471
 On this point of impeaching credit through previous written statements, see
discussion of s. 153, infra.

3. Gazette, etc to be prima facie evidence

85. The production of a copy of any written law, or of a copy of

the Gazette containing any written law or any notice purporting
to be made in pursuance of a written law, when such law or
notice (as the case may be) purports to be printed b the
Government printer, shall be prima facie evidence in all courts
and for all purposes whatsoever of the due making and tenor of
such written law or notice.
******
If the law or notice purports to have been printed by the Government Printer,
its production in courts is prima facie evidence that the law was duly made, as well
as prima facie evidence of its tenor, i.e, its general import; or its exact wording.
Note, however, that the evidence is open to rebuttal.

4. Cassetes, newspapers and documents produced from

proper custody.

86.(1) The court shall presume the genuiness of ever document

purporting to be -

472
 (a) the London Gazette, the Edinburgh Gazette, or the official
Gazette, or the official Gazette of any country in the
Commonwealth;
(b) a newspaper or journal;
(c) a document directed by any law to be kept by any person, if
such document is kept substantially in the form required by law
and is produced from proper custody.
(2) Documents are said to be in proper custody if they are in the
place in which and under the care of the person with whom they
would naturally be; but no custody is improper if it is proved to
have had a legitimate original, or if the circumstances of the
particular case are such as to render such an original probable.
******

The Gazette need not be formally tendered into evidence; it is sufficient if

the court has the Gazette before it. The presumption is rebuttable, as for example,
an order in a Gazette may be rebutted by production of another Government order
from proper custody.

The definition of “proper custody” in subs (2) is the same as that found in s.
96(2), documents over twenty years old.

The production of a newspaper raised a presumtion as to its genuiness, but

mere production is not proof of the contents of the newpaper, for these are merely
anonymous statements, even though the nespaper is admissible in evidence
without formal proof.

473
 If the law directs that a document be kept by anyperson, the genuiness of the
document is presumed, profived (a) that the document is kept sustantially in the
form required by the law, and
(b) it is produced from proper custody.

As to the definition of “Proper custody in subs. (2), SARKAR notes on p.

735, in relation to the definition as found in s. 96(2):-

“..... the custody contemplated is not necessarily that which is

strictly proper or legal and .... there is no one custody which is
considered necessary. The document must come from custody
which is natural and reasonable under the circumstances. As
PARKE, J., said: ‘It is not necessary. The document must come
from the most proper custody; it is sufficient if it comes from a
place where it might reasonably be expected to be found’. (The
section insists) on a satisfactory account of the origin of the
possession being given by the party relying on the document.
The custody might not be strictly legal but the origin must be
explained. The court must examine the surrounding
circumstances and for that purpose contemporary events assume
importance. The question of proper custody should be
determined by the trial court on the consideration of the
particular case and the appellate court would be slow to interfere
with the discretion of the trial court in refusing or admitting the
document. Mere production of the document in court is not
enough; the custody must be proved by evidence.” (citing
authority) which, such publication or any party thereof was
474
 edited, printed or published or any part thereof was contributed,
it shall in any proceedings for an offence under any written law
or for contempt of any court, be presumed, until the contrary is
proved that such publication or part thereof was edited, printed or
published, or that such part thereof was contributed, by or on
behalf or under the sponsorship of such person, or at such place
or on such date, as the case may be.
******
Example:-
Kariuki publishes a newspaper which is declared to be a prohibition
publication under s. 52 F.C... After the order prohibiting the publication appears in
the Gazette, Kariuki publishes another issue and is charged with an offence under s.
53 P.C... At the trial the issue of the newspaper is introduced in evidence. The
court must presume that the newspaper was published under the sponsorship of
Kariuki at the place of publication on the date published unless or until the
contrary is proved
------------
6. Documents admissible in England.

88. When any document is produced before any court, purporting to be a

document which, by the law in force for the time being in England, would be
admissible in proof of any particular in any court of Justice in England, without
proof of the seal or stamp or signature authenticating it, or of the judicial or official
character claimed by the person by whom it purports to be signed -
(a) the court shall presume that such seal, stamp or signature is genuine, and
that the person signing it hold, at the time when he signed it, the judicial or official
character which he claims in such document; and
475
 (b) the document shall be admissible for the same purpose for which it
would be admissible in England.
*****

This section is based on ss. 9 and 10 of the Evidence Act, 1851 of England.
The effect of the section is that documents which are presumed to be genuine in
England and are therefore admissible without proof to the seal, stamp or signature
of the person authenticating them are also admissible in Kenya. The question must
therefore be answered as to whether the document would be admissible under these
circumstances in Kenya.

In particular cases, the answer may be found n s. 82 K.E.A., Proof of certain

public documents. In other cases reference must be made to the statue law of
England.

The equivalent section of the I.E.A., s. 82, was considered in Venn v Venn,
(1958) E.A. 264(K) where an affidavit of service upon the woman named in the
divorce cause was sworn before a Commissioner for Oaths in England. The
Registrar granted under r. 29 of the matrimonial Causes Rules (cap 145, a
certificate that the pleadings and proceedings were in order subject to the
petitioner’s advocate satisfying the trial judge that such affidavit was admissible.
The court held that the affidavit was admissible and, after quoting s. 82 I.E.A said:-

“An English commissioner for oaths can take an affidavit anywhere in

Her Majesty’s Dominion or indeed elsewhere and it will be admissible
in evidence in England and in my opinion having regard to s. 82 it
will also be admissible in Kenya.”
476
Again in the Tootal Broadhurst Lee Co., ltd. case (see p.172 supra), the Court,
having decided that the registration certificates issued by the controller General of
Patents and Designs under the authority of law were public documents but not
admissible under the authority of law were
public documents but not admissible under ss. 74 - 77 I.E.A. went on to quote s.
82 and say:-

“For a document to be admissible under the section it is only necessary

that it should be one which is admissible in England in proof of the fact
which t is intended to establish without proof of authentication. If one
examines the documents produced one will see that they are a
combination of two things, viz., the first part of the documents purport
to certify as true the copies of the certificates registration attached to it
while the matter part con of a certificate that to designs in question
were registered in 1907 to 1946, in class on the therein stated and
that a copyright of five years was grated. It seems to me without doubt
that such documents would be admissible in England to prove the
registration of the designs to which they refer under section 24 of the
Registered Designs Act, 1949, and corresponding provisions of the
prior notes repealed by that act.”

The court then continued with the discussion of the applicable English law and
concluded that the document were admissible in evidence under s. 82 E.A., even
though not admissible under ss. 74 - 77.

7. Maps or plans
477
 89(1) The court shall presume that maps or plans purporting to
be made or published and are accurate.
(2) Maps or plans specially made for the purposes of any cause
or other proceeding, civil or criminal must be proved to be
accused.
****

This section, setting forth he presumptions of publication and accuracy,

should be read with s. 30 which deals with the admissibility of statements and
representations of facts in issue or relevant facts made in the maps, charts or plans
listed in the section. The general ground of the presumption is that the maps or
plans contain the results of inquiries made by competent officers with publicity
concerning matters in which the public are interest. SARKAR on p. 717 notes:-

“The presumption is in respect of the accuracy of the maps

but it does not extend to the statement of other facts made in or
on the maps. The word ‘accurate’ means accuracy as to drawing
and correctness of the measurements, i.e. accuracy with regard to
the drawing of the map. The accuracy certainly does not refer to
the laying down of boundaries between estates according to the
rights of the parties, names of proprietors, etc. These depend on
the correctness of the information which the.... draftsman
obtained from other persons.”

478
 The necessity for proper proof or those maps or plan specially prepared for
the purpose of a civil or criminal cause or proceeding was emphasized in Magoti
s/o Natofali v R. (1953, 20 E.A.C.A 232, 233:-

“A plan of the locus (exhibit) E) was made and produced in evidence

by a police corporal. Barious points on the plan are marked with
letters and it bears a legend showing what these points represents. In
the course of his evidence the police corporal testified as to the
distance between these points which he had paced out himself. That
was unobjectionable; but as to what each point represented he merely
said ‘ I got the information from Antonia; (P.W.2) as to positions and
ownership. This was of course hearsay... In the present instance of the
plan was not very material to the case as the court and assessors
visited the scene, but we take this opportunity of once again drawing
attention to the necessity of proper proof of sketch plans, because it
may well occur that in some other case where the plan is material the
court will be hindered in its task for want of this evidence”

The court in Mohamed s/o Rashidi v R (1951), 18 E.A.C.A. 298, 302 commented
on the proper method of proving a sketch plan of this sort:-

“ In proving a plan in a case of this sort, the prosecution should

prove that the person who made the plan accompanied the witness,
that the witness pointed out a certain place as the spot where the
witness stood or where some event occurred and that the place is
marked on the plan in some way which enables it to be identified;

479
 further the witness, if available should corroborate the fact of having
pointed out the place to the person who made the plan.”

6. Laws and Judicial reports.

90. The court shall presume the genuiness of every book pruporting to be printed
or published under the authority of the Government of any country and to contain
any of the laws of that country and of every book purporting to contain reports of
decisions of the courts of any country.
******
This section should be read with s. 41 which makes such statements of laws
and reports of decisions admissible when the court has to form an opinion as to the
law of any country.

9.. Powers of attorney.

91. The court shall presume that every document purporting to be a power of
attorney, and to have been executed before the authenticated by a notary public or
commissioner for oaths or any court, judge, magistrate, or British consular officer
of diplomatic agent, was so executed and authenticated.
*****
OSBORN THE CONCISE LAW DICTIONARY, P. 260, defines a “power of
attorney” as

“... a formal instrument by which one person empowers another

to represent him, or to act in his stead for certain purposes;
usually in the form of a deed poll, and attested by two witnesses.
The donor of the power is called the Principal or constituent; the
480
 domes is called the attorney. .. The attorney is not entitled to
exercise his powers for his own benefit.”
10. Certified copies of foreign judicial decrees.

92. The court may presume that any document purporting to be a copy of a
judgment or judicial record of any country not forming part of the Commonwealth
is genuine and accurate, and that such judgment or record was pronounced or
recorded by a court of competent jurisdiction, if the document purports to be
certified in any manner which is certified by a British consular officer of
diplomatic representative in or for such country to be the manner commonly in use
in that country for the certification of copies of judgments or judicial records.
****
“This section lays down that the court may presume the
genuiness and accuracy of any document purporting to be certified
copy of any judicial record of any foreign country, if such copy is duly
certified in the manner and according to the rules in use in the country
for the certification of the copies or judicial records. There must be an
additional certificate by a representative of (Her) Majesty .. in or for
that country or state, to the effect that the copy has been certified in
conformity with the rules in force in that country or state. When a
certified copy of a foreign judicial record thus certified by a
representative of (her ) Majesty is produced, the court may presume it
to be genuine or accurate. The presumption is rebuttable and the court
may call for other proof.”

11. Books, Maps and Charts

481
93. The court may presume that any book, to which it may refer for information
on matters of public or general interest, and that any published map or chart, the
statements of which are admissible facts and which is produced for its inspection
was written and published by the person and at the time and place by whom or at
which it purports to have been written or published.
*****
The presumption here concerns publication, authorship, etc., but not
accuracy. See also s. 39, statements maps, charts, and plans, and s. 60(2) where
the court may resort to appropriate books and documents of reference for its aid in
matters of judicial notice, public history, literature , science or are. Treatises are
covered in s. 63(2), see pp. 146 - 148 supra.

12. Telegraphic messages.

94. The court may presume that a message forwarded from the telegraph
office to the person to whom such message purports to be addressed,
corresponds with a massage delivered for transmission at the office from
which the message purports to be sent; but the court shall not make any
presumption as to the person by whom such message was delivered for
transmission.
Not the distinction between the presumption concerning the message
transmitted, and the direction that there is no presumption as to the identity of
the sender
13. Presumption as to due execution, etc
95.(1) Where any document purporting or proved to be not less tan twenty
years old is produced from proper custody which the court in the particular
case considers proper, the court may presume that the signature and every
other party of such document, which purports to be in the handwriting of any
482
particular person, is in that persons handwriting, and, in the case of a
document executed or attested, that it was duly executed and attested by the
persons by whom it purports to be executed and attested.
(2) Documents are said to be improper custody if they are in the place in
which and under the care of the person with whom they would naturally be;
but no custody is improper if it is proved to have had a legitimate origin, or if
the circumstances of the particular case are such as to render such an original
probable.
*******

After a document reaches a certain age, twenty years under the K.E.A.
(thirty years under the I.E.A and U.E.A. s. 89; also twenty years under s. 99
T.E.A.) )., the strict rules of proof which are normally applicable no longer apply.
Thus the document of required age, produced from property custody as defined
(see discussion, p. 199 supra), and there is nothing on the face of the document to
raised suspicion, the document in effect “proves itself”, for the court will presume
the document in effect “proves itself” for the court will presume that it was written
and signed by the person whose signature the document purports to bear or in
whose handwriting the document purports to be, or that it has been duly attested
and executed if it purports to be.

The presumption does not extend to the contents of the document; i.e. there
is not presumption that the contents of the document are true. Nor does the
presumption deal with relevancy, for even though the documents are admissible
without formal proof, whether or no they are relevant still depends upon the rules
concerning relevance generally.

483
Examples of proper custody:-

a. A has been in possession of landed property for a long time. He produces from
his custody deeds relating to the land, showing his titles to it. The custody is
proper.

b. A produces a deed relating to landed property of which he is the mortgages. The

mortgagor is in possession. The custody is proper.

c. A, a connection of B, produces deeds relating to lands in B’s possession which

are deposited with him by B for safe custody. The custody is proper.

In Saleh bin Ghaleb v Hassain Al Qu’aiti, (1957 E.A. 55 (C.A), public

records over thirty years old produced from proper custody, were admitted in
evidence under the rule, although s. 90 I.E.A. was not referred to.

SARKAR on pp. 729 - 730 lists the main points of the section

1. The presumption applies to documents proved to be twenty years old or

more.
2. The document must come from “proper custody.
3. The presumption is discretionary and so where a document is suspicious
on the face of it, the court may refuse to make it and may call upon the party to
offer proof..
4. the presumption applies only to documents which bear the signature of the
writer or of witnesses, and not to unsigned or anonymous papers.

484
 5. The presumption relates only to the signature, execution or attestation of
a document, i.e. to its genuiness. It does not involve any presumption that its
contents are true or that they have been acted upon. The presumption does not
also apply to the authority of a person to execute a document on behalf of another.
6. The presumption applies to execution and attestation of wills including
that of sound disposing mind of the testator.
7. 20 years is to be counted from the date the document purports to bear.
Although a document might not be 20 years old when the case is tried.
8. The presumption applies to the original document, and not to any copy,
certified or otherwise.

I. Tape and wire recordings.

Although tape recordings and wire recordings do not fall under the strict
definitions of documents, their character is similar, for they are records of sound,
rather than records of the words spoken in the form of written words or symbols.

In h v R G Patel and Another, (1956), 29 K.L.R. 112 the question of

admissibility of wire recordings was discussed at length in connection with the
definitions of “document and “evidence” in s. 3 I.E.A., and the court said at pp
116 - 1117:-

“Subject to identity being properly established, if the question in

issue is what was said at a particular time in the course of, e.g, an
interview, or a speech or declaration and evidence is given that a
wire recording of it was made simultaneously, we do not see any
reason in principle why the recording should not be admitted in
485
 evidence and be permitted to be played in court. It is not a
‘document and it is not ‘evidence’ within the restricted meaning
of that term used in the Indian Evidence Act which are not
‘ evidence’ in the sense defended in section. The recording is
evidentiary in the sense that it is a matter of fact the tendency of
which is to produce in the mind a persuasion of the existence of
some other matter of fact.”

As to the necessity for laying a proper foundation for introduction of the recording,
the Court said , pp 117 - 118:-

“The authorities are extremely meager, but we are of opinion that a

tape recording may be played back in a court in Kenya if a proper
foundation has been laid. That foundation would be made on the tape
recorder and of the nature of the matter recorded and evidence (which
should not be merely the opinion of the judge, jury or magistrate) of
the identity of the voice or voices of the person or persons who had
made the recording with the voice or voices sounding from the record
as played back”.

In Salau Dean v R., (1966) E.A. 272 (K), two recordings were admitted in
evidence on the authority of R. v Masqud Ali and to Here the circumstances were
different, in as much as a complete English transcript of the recording, which had
been made in Punjabi, was admitted in evidence by agreement with both sides, and
the issue revolved around the correct interpretation of two words. In an attempt t p
satisfy himself that the English transcript was correct the magistrate played the
tape over in his chambers, when it had not been played in court, in the presence of
486
two police officer and a court interpreter, but in the absence of the appellant and
his counsel, and the appeal court said (p. 275):-

“We would say also, though here we may appear hypercritical,

that if the tape recording has not been played in court it is probably
wrong for the magistrate to play it to himself in the privacy of his
chambers. We do not think that a magistrate or judge should hear in
chambers what he has not heard in court, recorded voices of the
speakers.

j. Procedure in court - identification of handwriting by writer.

The court in Des Raj Sharma v R., (1953), 20 E.A.C.A. 310 at pp 313 - 314,
quoted the head note from Peak versus Peak, (1870), 21 T. Rep N.S. C.P. 670 as
accepted practice:-

“If a document be given to a witness during cross-examination

for the purpose of identifying the handwriting, the counsel for the
party whose witness is in the box has a right to inspect the document
sufficiently to enable him to re examine about the writing and also to
identify the document in case it should be afterwards be put in
evidence. He has, however, no right to read the document through,
nor to comment upon its contents, until it be put in by the other side
although he may remark upon its absence if it be not put in.”

487
In the instant case the court held that all the counsel for the prosecution could
claim to do was to look at the signature and reexamine on that, but could not claim
to examine or look at any other part of the document even for the purpose of
identifying it as counsel for the defendants had taken the prosecution of having it
marked by the witness.

Noting the frequent confusion between “exhibits” and articles “marked for
identification” the court quoted in extenso from Peak v Peck:-

“It is a matter of every day practice for counsel to hand to

a witness a document for the purpose of the proof of its
handwriting, which he may or may not subsequently put in
evidence in his clients behalf. The object of the proceedings
being proof of the writing the opposing counsel ought to have an
immediate opportunity of looking at the document and, as I think
not only for the purpose of re examining his witness as to the
writing, but also to enable him to identify the document if it
should afterwards be put in evidence by the other side. Strictly
speaking, I think such documents when both sides are satisfied as
to the proof of the handwriting, ought to be put into the hands of
the officer of the court until the counsel for the party in whose
possession the document is, has made up his mind whether he
will make it evidence or not. There might, however, be
inconvenience in such a practice, and it is not commonly
enforced; but the document should be so seen and even examine
by counsel that he might recognize it again. I should, however,
be sorry to lay down as a rule that the opposing counsel under
488
 such circumstances has a right to read the document, or make
any comment upon its contents, but it is difficult to draw a line
between a proper inspection of the signature and unnecessary
examination of the document.”

There are certain instances when the document cannot be proved through
handwriting, which cases proof is sometimes available by means of reference to
the contents of the letter or document. Examples of these instances are:-

1. an unsigned and anonymous letter.

The internal evidence may be proof of authentication, e.g. when it states

facts or circumstances which are known to be authentic and could only have been
known by the person who is alleged to have written the letter.

2. an illiterate’s letter, perhaps dictated to another person. The same method

of proof as in (1) is applicable.

3.a typewritten letter, where the signature if there is one is also typewritten.

Both internal evidence and record to expert witnesses apply. It is said that
typewriters produce impressions which are exactly alike, much as two sets of
finger prints are identical and though the use of expert witnesses it may be shown
that a particular letter was typed on a particular typewriter.

k. Statements in documents produced in Civil Proceedings.

489
1. Admissibility of documentary evidence as to facts in issue.

35. (1) In any civil proceedings where direct oral evidence of a fact would be
admissible, any statement made by a person in a document and tending to establish
that fact shall on production of the original document be admissible as evidence of
that fact if the following conditions are satisfied, that is to say:-

(a) if the maker of the statement either-

(i) had personal knowledge of the matters dealt with by the statement; or
(ii) where the document in question is or forms part of a record purporting to be a
continuos record, made the statements ( in so far as matters dealt with thereby are
not within his personal knowledge) in the performance of a duty to record
information supplied to him by a person who had, or might reasonably be supposed
to have, personal knowledge of those matters; and
(b) if the maker of the statement is called as a witness in the proceedings.
(2) In any civil proceedings, the court may at any stage of the proceedings, if
having regard to all the circumstances of the case it is satisfied that undue delay or
expense would otherwise be caused, order that such a statement as is mentioned in
subsection (1) of this section shall be admissible or may without any such order
having been made, admit such a statement in evidence:-
(a) notwithstanding that the maker of the statement is available but is not
called as a witness;
(b) notwithstanding that the original document is not produced, if in lieu
thereof there is produced a copy of the original document or the material part
thereof certified to be a true copy in such manner as may be specified in the order
or the court may approve, as the case may be.
490
 (3) Nothing in this section shall render admissible any statement made by a
person interested at the time when the proceedings were pending or anticipate
involving a dispute as to any fact which the statement might tend to establish
(4) For the purpose of this section, a statement in a document shall not be
deemed to have been made by a person unless the document or the material part
thereof was written, or initialed by him or otherwise recognized by him in writing
as one for the accuracy of which he is responsible.
(5) For the purpose of deciding whether or not a statement is admissible by
virtue of this section, the court may draw any reasonable inference from the form
or contents of the document in which the statement is contained, or from any other
circumstances, and may in deciding whether or not a person is fit to attend as a
witness, act on a certificate purporting to be the certificate of a medical petitioner.
******
This section is unique so the K.E.A. and follows section 1 and 2 of the
Evidence Act, 1938 of the United Kingdom (1 & 2 Geo. 6, c 28): see MORRIS; p.
60. The rules concerning the genuiness of the document still apply, for the
statement in the document is not deemed to have been made by a person unless the
conditions in subs (4) are met.
There have been no reported cases since enactment of the Act interpreting
the section for convenience, the section may be outlined as follows:-

1. When is the document admissible under the Section?

The following conditions must be shown to exist:--

(a) the statement must be made by a person in a document tending to

establish a fact which would be admissible if given by direct oral evidence.
491
 (b) the original document must be produced, unless subs. (2) can be applied.

(c) the person who made the statement in the document must have had
personal knowledge of the matter dealt with in the statement, or

If the document is part of a record, purporting to be a continuos record, and the

statements dealt with are not within his personal knowledge:

-then if the maker of the statement in fact made it in the

performance of a duty or to record information, and

-the information came from a person (not the maker) who had
personal knowledge of the matters, of might reasonably be
supposed to have had personal knowledge of the matters
contained in the statement.

d. the maker of the statement must be called as a witness.

the rest of the section deals with exceptions to this general rule i.e instances when
the requirements set forth in subs. (1) need not be met.

2. Exceptions to the general rule of admissibility.

a. When need the maker of the statement not be called as a witness?

492
 The requirement of subs. (1)(b) need not be met when the maker is dead,
cannot be found is incapable of giving evidence or his attendance cannot be
procured without an amount of delay or expense which in the circumstances of the
case appear to the court unreasonable. (see discussion of these requirements pp
152 et seq)(Proviso subs. (1)).

The burden of proving these conditions precedent to application of the

proviso lies on the party wishing the document to be admitted without having to
call the maker of the statement.
Subsection (2)(a) also provided that the requirements that the maker of the
statement need not be called may also apply when the court, having regard to all
the circumstances of the case, in case, is satisfied that undue delay or expense
would be caused. The court may then:-

1. Make an order that such statement as is mentioned in the subs (1) shall be
admissible, or

(2) without having made such an order, admit the statement in evidence.

The other requirements (nos. (a) and (c) on p. 208 must still be met although
the requirement that the document be an original document may be waived as
noted in (b), below, but the court should not on the case record the authority for
having admitted the document in evidence, i.e. s. 35(2)(a).

b. When need the original document not be produce?

493
 Subsection (2)(b) provides that the requirement that the original document
be produced may be waived when the court, having regard to all the circumstance
of the case, is satisfied that undue delay or expense would be caused, provided:-

that in lieu of the original document, there is produced-

1. a copy of the original document, certified to be a true copy thereof in such

manner as may be specified in the court order, or certified in such manner as the
court may approved, or

2. a copy of the material part of the original document, certified in the

manner set forth in (1)

c. Circumstances under which the statement is not admissible.

By virtue of subs (3) if the statement was made

1. by a person interested in the dispute. (“A person is said to have an interest

in a thing when he has rights, titles, advantages, duties, liabilities connected with it,
whether present or future, ascertained or potential, provided they are not too
remove” OSBORN, p. 170 and

2. if such interest was at a time when the proceedings were pending or

anticipated, and

3. if the proceedings involve a dispute as to any fact which ,eight ten to be

established by admission into evidence of the statement in the document.
494
 6. Powers of the court in deciding whether the statement is admissible.

In deciding the issue of admissibility, subs. (5) sets forth that the court may -

1. draw any reasonable inference from the form or contents of the document
in which the statement is contained,

2. draw any reasonable inference from any other circumstances,

3. act on a certificate purporting to be that of a medical praticioner in

deciding whether a person is or is not fit to attend as a witness.

1. Weight to be attached to statement admissible under s. 35.

36.(1) In estimating the weight, if any, to be attached to a statement rendered

admissible by section 35 of this Act, regard shall be had to all the circumstances
from which any inference can reasonably be drawn as to the accuracy or otherwise
of the statement, and in particular to the question whether or not the statement was
mad contemporaneously with the occurrence or existence of the facts state, and to
the question whether or not the maker of the statement had any incentive to
conceal or misrepresent facts.

(2) For the purpose of any rule of law or practice requiring evidence to be
corroborated or regulating the manner in which uncorroborated evidence is to be
treated, a statement rendered admissible by section 35 of this Act shall not be
treated as corroboration of evidence given by the maker of the statement
495
******

The use of the word “shall” in the section, in practical application means that
the magistrate, after admitting a statement by virtue of the provisions of s. 35
should discuss in his judgment the question of the weight to be given to the
statement, including therein consideration as to whether the statement was made
contemporaneously with the occurrence or existence of the facts state and whether
there was any incentive to conceal or misrepresent facts. There should follow a
clear finding on the record as to the weight which the court, in the circumstances,
is giving to the statement.

In those instances where there is a rule of law in a civil suit that certain kinds
of evidence should be corroborated, as in for example, s. 5(2) of the affiliation Act
(Cap 142) by virtue of corroboration of any evidence given by the maker of the
statement. In other words, if a document is admitted under s. 35 and the maker of
the statement in the document is called as a witness as provided for in s. 35 (1)(b),
his or her oral evidence cannot be corroborated by the statements made in the
document, an application of the rule that a person needing corroboration cannot
corroborate himself; see, e.g. case on p. 79 supra. The statement and the testimony
considered together may, however, go to question of consistency under s. 165
K.E.A.,

a. Exclusion of oral by documentary evidence.

SARKAR notes on pp. 741 - 742 (section numbers amended to K.E. A.

section numbers):-
496
“This and the following sections deal with the exclusion of oral by documentary
evidence. IT has been seen that the contents of all documents must be proved by
primary evidence which means the document itself in original, except in those
cases where secondary evidence is admissible. (ss 64 - 68, K.E.A.). S. 97 K.E.A.)
is based on the best evidence rule, viz that the best evidence existing and attainable
must always be given. The reason for this rule has already been explained (v. ss 63
and 64 K.E.A. ). When a fact is required to be proved by oral evidence, the
evidence should be direct (S. 63) ; so when the transaction sought to be proved has
been reduced to the form of a document that document must, if available, be
produced.”

Note, however, the exceptions in ss 35 - 36 K.E.A. supra, pp 207 - 210

97. (1) When the terms of a contract, or of a grant, or any other disposition of
property, have been reduced to the form of a document, and in all cases in which
any matter is required by law to be reduced to the form of a document, no
evidence shall be given in proof of the terms of such contract, grant or other
disposition of property, or of such matter, except the document itself, or secondary
evidence of such matter, except the document itself, or secondary evidence of its
contents in provisions of this Act.

(2) notwithstanding the provisions of subsection (1) of this section -

(a) wills admitted to probate in Kenya may be proved by the probate;

497
(b) when a public officer is required by law to be appointed in writing, and when it
is shown that any particular person has acted as such officer, the writing by which
he is appointed need not be proved.

(3) Subsection (1) of this section applies equally to cases in which contracts, grants
or dispositions of property referred to are contained in one document, and to cases
in which they are contained in more documents than one.

(4) Where there are more originals than one, one original only need by proved.

(5) The statement, in any document whatever, of a fact other than the facts referred
to in subsection (1) of this section, shall not preclude the admission of oral
evidence as to the same fact.
*****
As to evidence of oral agreements:-

98. When the terms of any contract or grant or other disposition of property, or
any matter required by law to be reduced tot he form of a document, have been
proved according to section 97 of this Act, no evidence of any oral agreement or
statement shall be admitted as between the parties to any such instrument or their
representatives in interest for the purpose of contradicting varying adding to or
subtracting from its terms:

Provided that:-

498
(1) any fact may be proved which would invalidate any document, or which would
entitle any person to any decree or order relating thereto; such as fraud,
intimidation, illegality, want of due executions, want of capacity in any contracting
party, want or failure of consideration, or mistake in fact or law;
(ii) the existence of any separate oral agreement as to any matter on which a
document is silent, and which is not inconsistent with its terms, may be proved,
and in considering whether or not this proviso applies, the court shall have regard
to the degree of formality of the document.

(iii) the existence of any separate oral agreement constituting a condition precedent
to the attaching of any obligation under any such contract, grant or disposition of
property may be prove;

(iv) the existence of any distinct subsequent oral agreement to rescind or modify
any such contract, grant or disposition of property may be proved, except in cases
in which such contract grant or disposition of property is by law required to be in
writing, has been registered according to the law in force for the time being as to
the registration of such documents.

(v) any usage or custom by which incidents not expressly mentioned in any
contract are usually annexed to contracts of that description may be proved, if the
annexing of such incident would not be repugnant to , or inconsistent with, the
experts terms of the contract;

(vi) any fact may be proved which shows in what manner the language of a
document is related to existing facts.
******
499
1. The principles involved.

Where there are written instruments executed upon which men’s rights
exists, any other evidence to substitute for the document, or to vary or alter its
terms or contradict it, is not admissible, either in the case where parties have
formally contracted, or if the writing exists because of laws which require that
these agreements be in the form of a document. It is also an important rule of
evidence that where written documents exist, the originals should be produced as
the “best evidence” of their contents, except in those cases where secondary
evidence is admissible. Where, however, the document is not itself a fact in issue,
but is only being used as evidence to prove some fact, oral evidence may be
admitted to prove the same fact. In other words, generally speaking, where the
terms of an agreement have been reduced to writing as to an exposition of the
intention of the parties, it is only the writing itself which the law will recognize as
evidence of that agreement.

Section 97(2) sets forth two exceptions to the rule:-

(a) that wills admitted to probate may be proved by the probate.

(b) that when the law requires that a public officer be appointed in writing, and it is
shown that a person has been acting as a public officer, the writing by which he
was appointed need not be probed. As was pointed out in Mukasa Saleh Kalimali
v R., (1953), 7 U.L.R. 26:-

500
 “... the principles embodied in the English rule as to presumption
of due appointment to a public office are recognized and guarded
in this exception.”

Subsections (3) and (4) cover the actual physical form of the contract, grant
or disposition of property referred to. subsection (3) applies subs. (1) to cases
where the contract, etc., is contained in more than one document, as for example,
when a contract is embodied in a series of letters or other correspondence.
Subsection (4) states that where there are more originals than one, one only need
be proved; see discussion s. 65(4), p. 179.

2. “required by law to be reduced to the form of a document”

In Kenya, certain contracts must be in or evidence by a writing in order for

the matter to be enforceable in court, and the phrase appears to refer to these
situations. For example, the following statutory provisions would apply:-

a. Contracts of guarantee - s. 3 (1), Law of Contract Act (CAO 23)

b. employment contracts for over one month - s. 5 Employment Act (Cap. 226).
c. money lending contracts - s. 11., money lenders Act (Cap. 23)
d. contracts for the sole of goods of over 22/- - s. 6 sale of Goods Act (Cap 31)
e. bills of exchange and promissory notes - s. 3(1), Bills of exchange and
promissory notes - s. 3(1) Bills of Exchange Act (Cap 27)
g. acknowledgment required under the Limitation of Actions Act, 1968 (no.
21/1968). Part III B, as 23 and 24

501
 As an example, see Chitram v Lazar (1959)E.A. 157 (C.A.) where the
question concerned an endorsement made by Lazar on a list of materials, and the
court held that the endorsed list exactly set out the agreement between the parties,
saying at p. 164:-

“It is the contract between them, and s. 91 of the Indian Evidence Act
applies to it not only because the terms of the contract were reduced to
the form of a document, but because in my opinion, it was a contract
for the sale of goods of the value of more than shs 200/- and its
subject matter was required by s. (6(1) of the Sale of Goods
Ordinance to be reduced to the form of a document.”

Note that the section did not require in absolute terms that all contracts, or even
those over the amount of 200/- must be in writing but refers to the requirement that
they be in writing to be enforceable in court.

“..... a contract for the sale of goods of the value of two hundred
shillings or upwards shall not be enforceable by action unless ... some
note or memorandum in writing of the contract is made and signed by
the party to be charged or his agent in his behalf”

For a situation where the law does not require that the matter be reduced to
the form of a document, see, for example, Said bin Rashid bin Agnad El Nofli and
another v Fatuma binti Ali bin Juma Shraziya and seven others, (1955), 22
E.A.C.A. 278, 284, where a document which the Court held was one testifying that
a gift had been made was ruled to be admissible in evidence:-
502
 “In my opinion, as exhibit 1 was merely a piece of evidence and as
section 4 of the Registration of Documents Decree does not apply to it,
it can be received as evidence of an antecedent oral gift... The transfer
of property Decree does not require gifts of property by one
Mohammedan to another made in accordance with Mohammedan law
to be reduced to the form of a document, and accordingly, exhibit 1 is
not prevented by section 91 of the Indian Evidence Act from being
produced.

Section 91 I.E.A. has been applied to a work reduced to the form of a document: R.
and F binti Abdulla v s. binti Mohamed. (1959) E.A. 10 35, 1043 (C.A) though the
law did not require the work in writing.

3. “Terms of a contract”, etc

The initial problem which arises is the determination that the writing in
question is, in fact, a contract. For example, in Cheitram v Lazar, supra water had
damaged goods belonging to the appellants this damage having been caused by the
negligence of an employee the respondent. Surveyors were appointed by each side
to ascertain damage and a list was prepared stating prices, on which the
respondent husband endorsed “Taken over only 1818 pieces of various materials...
Not taking over the prices mentioned.” Negotiations failed, and at the trial the
lower court held that there never had been an agreement and dismissed the claim in
503
so far as to it was founded on contract. Evidence had been given by the
respondents husband explaining the meaning of the words he had written. On
appeal the Court held (see quotation p. 213) that the endorsed list was in fact a
contract and that ss 91 and 92 I.E.A. applied.

The sections do not apply if the document does not embody the final
agreement between the parties. In Sheikh Abdulahdi bin Salim v Maya binti Salim,
(1955), 22 E.A.C.A 205 the respondent landlord leased premises to a tenant with a
convenient against sub-letting without consent, and the lease contained a forfeiture
clause. The tenant sub let without the required consent and the landlord gave
notice and eventually applied to the Rent Control Board for vacant possession and
other relief. On appeal, one of the grounds was that the Board had acted on
inadmissible evidence, oral and documentary of an agreement between the tenant
and one MM under which MM occupied the premises. On the appeal the Court
said (210):=

“As to section 91 of the Evidence Act, which embodies the rules

conveniently known as the exclusion of oral by documentary evidence,
its application to this case depends on the assumption that exhibit A
sets out the terms of the final agreement between the parties. But that
is not so, for by clause 4(g) it is provided that ‘the purchaser agrees to
sign proper agreement of lease or tenancy, whenever called upon to do
so by the vendor’. (After discussing other objection the Court said on
p. 211 ) .. I think, therefore, that the oral evidence of subletting even if
the document exhibit A were to be held inadmissible.”

a. Dates, recitals, etc.

504
 The question arises as to whether the dates and formal recitals of
consideration are included in the “terms of the contract.” In Folkes & Co. v
Thakrar, (1959) E.A. 36 (U) the appellant sought to establish that the written
guarantee in question had been signed “not on May 22, but in April before the
delivery of the first consignment of flour and that it was preceded by an oral
guarantee”. The trial judge ruled that the evidence was in admissible. The appeal
Court held that the trial judge was wring in treating the date written at the top of a
written guarantee as “term of the contract” and ruled that it was open to the
appellant to call oral evidence to show that the date written was not, infact the date
of execution, quoting from SARKAR an authority (on p. 42) (now found in 10th
Edn, at p. 679):-

“Quaere: whether the words ‘term of a contract’ include date of a

contract? Dates of instruments are treated as formal parts of document.
Like recitals of consideration they are presumed to be correct until
disproved. Parol evidence is admissible to show that there was
mistake as to date or that date is incorrect through collusion or some
other reasons. Parol evidence has been admitted to prove that recited
dates were wrong.”

On the question or facials of consideration, the court in E.A. Power Co. v

Dandora Quarries, (1967) E.A. 728, 730(K) said
“section 97(7) of the Evidence Act prohibits the giving * see also: Mohamed
Roshan v Santa Singh, (1959) E.A. 717, 724 (C.A) of secondary evidence of the
‘terms’ of a written contract. A recital - especially one reciting merely the history
is not a term of the contract, although in cases of ambiguity of the operative part a
505
recital may be looked at to resolve the ambiguity. I think the defendant was not
conclusive on this issue. Against, the recital in this case describes a request by the
defendant for the construction of certain works and an undertaking by the plaintiff
company to carry out such works. The wording of the recital suggest that the
works were to be carried out in the future. It would be against common sense to
stop the defendant from producing evidence to show that no works were in fact
carried out. There would be more force in counsel for the plaintiff’s argument if
the recital had stated that the defendant had made a request and that the plaintiff
company had in compliance with that request carried out the works in question.
But even if the recital had mention and executed consideration, there would have
been no estoppel. It is well known that a recital of receipt of consideration in a
document does not operate as an estoppel from denying the facts stated there in,
but the burden of proving the non-existence of such facts is on him: (citing
authority).

In Sah Lalchand v Indarjit, (1900), 27 I.A. 93 their Lordships of the Privy

Council stated as follows (at p. 97):-

‘Their Lordships,.... regard it as settled law that, notwithstanding an

admission in a sale deed that the consideration has been received, it is
open to the vendor to prove that no consideration has been actually
paid. If it was not so, facilities would be afforded for the grossest
frauds. The Evidence Act does not say that no statement of fact in a
written instrument may be contradicted by oral evidence but that the
terms of the contract may not be varied etc.”

506
 The issue of recitals was also covered in Fakhruddin Mohamedali Jafferji v
Ahmed Abdulhussein Lukmanji, (s. 98 K.E.A.) wherein in a deed of a mortgage
the mortgagor acknowledged receiving 2000/= as consideration for a mortgage. In
a suit by the mortgage for recovery of the the 2000/- or, in defaul of payment, for
the sale of mortgage property, the mortgagor pleaded that themortgage deed was a
fictitious document and that he had never received a single cent from the
mortgagee. It was proved at the trial that the recital 2000/= was incorrect. On
appeal, the Court said at p. 78:-

“Although the defendant admitted in the mortgage that the

consideration money had been received by him, it is clear from
section 92 .. and the authorities quoted thereunder that this be rebutted
by parole evidence of non payment. The recital however, raises a
strong presumption of the payment of such consideration and the onus
was on the defendant tore but it.” (emphasis added).

The document itself.

Subject to the exceptions listed in s. 97(2) (a) and (b) the terms of the
contract, etc when reduced to the form of a document or when required by law to
be reduced to a document may only be proved by production of the document itself
or secondary evidence where admissible under the Act (see p. 179 et seq.) The rule
was applied in Kilonzo wa Kwnyanya v Odhavji Purshotam and Bros., (1933), 16
K.L.R. (1) 44, 46 which concerned the admissibility of evidence as to transactions
in respect of which bills of exchange had been given and the court said:-

507
 “It appears to me that by virtue of section 91 of the Indian Evidence
Act, when the terms of a contract have been reduced to the form of a
document such as a bill of exchange no evidence is receivable as to
the nature of the contract except the document itself. It is therefore
impossible for the Court to inquire whether the contract was for the
sale of goods on credit or for any other purpose or to receive evidence
as to this.”

See also Damodar Jammandas v Noor Valji, ( 1961) E.A. 615 (C.A.) at pp 620 -
621, where the onus was placed on a moneylender to prove conditions precedent
to enforcement of the contract by production of a note or memorandum in writing
containing all the terms of the contract under s. 11 of the Money lender’s ordinance
(then cap 307, of Kenya): the Court held that since the law required the document ;
oral evidence of its terms was not admissible. The same general rule was referred
to without reference to the section in Afzal Khan Wan v R., (1958) E.A. 492 (K)
involving a charge of fraudulent false accounting where it was held that where a
person is employed under a written contract of service and the terms of the contract
are material, the proper evidence thereof is the document itself; but the question
whether a person is a clerk or servant depends upon whether he is subject to the
control of another and bound to obey the orders of that other, and this could be
proved by parole evidence.

5. Similarities and differences between ss. 97 and 98

Section 97 deals with proof of the contract, grant or disposition of property

through the document itself or secondary evidence when admissible . Section 98 is
a logical extension of the principles and the two section should be read together.
508
As said by SARKAR on p. 772, if the intention is that no substitution of the terms
of a voluntary and deliberate transaction should be allowed, it follows that no
variation of the terms of the contract, etc., have been proved according to the
provisions of s. 97:-

“... no evidence of any oral agreement or statement shall be admitted

as between the parties to any such instrument or their representatives
in interest for the purpose of contradicting, varying, adding to or
subtracting from its
terms.”
Note that the application of the rule is limited to the parties to the contract or
their representatives in interest, but does not apply to third persons; therefore
parties to the suit or proceeding who were not parties to the instrument are not
precluded from giving evidence to contradict, etc the instrument.

Both section 97 and 98 contain the words “contract”, “grant” “other

disposition of property” and “matter .. required by law to be reduced to the form of
a document”. Since, however s. 98 is limited to the parties to the instrument or
their representatives in interest, where as there is no such limitation in s. 97, there
are two distinctions between application of the sections which should be kept in
mind:-

1. Section 97 applies to unilateral documents those made by only one person (e.g.
wills powers of attorney, depositions of witnesses, etc), where as s. 98 because of
the words “as between the parties” etc and reference to oral agreements separate
from the writing, does not include unilateral documents but only those documents
entered into by more than one person i.e bilateral documents.
509
2. Section 98 applies only to dispositive documents, i.e documents in which rights
are disposed of , sub as contracts grants and other dispositions of property.

After analyzing the reasons for these differences in interpretation, SARKAR

discusses the matter on pp. 773 - 774 as follows:-

“If these important distinctions between he two sections are borne in mind there
does not appear to be any ambiguity. ‘ Any matter required by law to be reduced to
the form of a document’ may be ‘a contract, or a grant, or any other disposition of
property’ or a unilateral or non dispositive document like the deposition of a
witness. But as (s.98) does not apply to unilateral and non dispositive documents,
a deposition cannot come within the scoop. It therefore applies to contracts, grants
or other dispositions of property and which are reduced towriting either by
requirement of law or by agreement of parties. Thus interpreted, the words ‘no
evidence of any oral agreement or statement shall be admitted’ in (s.98) refer to
‘contract, grant or other disposition of property’ as well as to the words ‘any matter
required by law to be reduced to the form of any document’ ... Taken together the
words therefore mean, any matter required by law to be reduced to writing do not
come within the section. So, if a deposition is taken as an instance of a matter
required by law to be reduced to writing, the words ‘no evidence.... shall be
admitted shall be admitted’ in {s.98} are no bar to the reception of oral evidence
for the purpose of (contradicting) the writing.” (K.E.A. section number substituted
for s. 92 I.E.A.).

On pp. 775 - 776, SARKAR sets forth a compartatice chart showing section
numbers substituted:-
510
_________________________________________________________

S. 97

a) S. 97 is based on the a) s. 98 is also based on

“best evidence”principle. same principles.

b) S. 97 deals with “the b) s. 98 refers to similar

terms of a contract or words, but it appears
of a grant, or of any other from the context that
disposition of property” their meaning is not
reduced to writing by exactly the same in
agreement of parties and both sections. (see
also with any matter which discussion above)
“is required by law to be
reduced to the form of a
document”.

c) s.97 is not restricted in its c) s. 98 applies only to

operation to the parties the parties to such
to such instrument or their instrument or their
representatives in interest. representatives in
The rule in s. 97 applies interest (v.”as
to parties as well as between parties.”
strangers. etc in para 1).
Strangers are outside
511
 its scope. ( v. also
s. 105)

d) S. 97 applies to all documents d) s. 98 deals with

whether dispositive, i.e by dispositive document
which rights are dispositive, only. This is evident
i.e by which rights are disposed from the words “as
of, e.g. contract, grant, etc between the parties to
or non-dispositive, e.g. record of any such document”
evidence, a memorandum etc which naturally apply
All dispositive and non dispositive to dispositive docu-
documents reduced to writing ment between contrac-
either by reauirement of law or ting parties or parties
by agreement of parties come to whom the property
within the section is transferred. The
words “any matter” in
the phrase “any
matter required by law
to be reduced to
writing in s. 98 have
therefore reference
only to such matter
as creates dispositive
document e.g.
“contracts, grant
or other disposition of
property”. The words
512
 therefore mean, any
matter required by law
to be in writing and
which is a “contract,
grant, etc”. Document
other than
dispositive
documents required
by law to be in
Writing (e.g.
deposition) do not
come within the
section.

e) s. 97 deals with both bilateral e) s.98 deals with

and uninlateral document, bilateral documents
It applies to contracts, grants only, reduced to
etc., as well as to unilateral writing either by
documents like powers of consent of parties
attorney, wills, etc. or by requirement of
law. It does not apply
to unilateral
documents such as
powers of attorney,
wills etc., (though
required by law to be
in writing). This is
513
 apparent from the
words “as between the
parties” and the
reference to “separate
oral agreement”.

f) s.97 deals with the exclusiveness f) s.98 deals with the

of documentary evidence, that is conclusiveness and
when the terms of a transaction inconclusiveness of
are reduced to writing either by of documentary
requirement of law or by agreement evidence, that is
of parties, the document excludes when the terms of a
other extrinsic evidence of the terms. transaction have been
reduced to writing, it
is conclusively
presumed that a full
and final statement of
the intention of the
parties is included in
the document and
extrinsic evidence is
inadmissible to
contradict, very, add
to or substract from
its terms.

514
g) s. 97 is a complementary to s. 98 g) s. 98 is supplementary
to s. 97 and t is a
branch of the rule in
the latter section. The
rule in section 97 that
a written agreement
must be proved by
production of the
writing itself would be
frustrated if extrinsic
evidence is admitted
to vary, contradict,
etc., its terms s. 98
comes into force when
the document has
been proved under s.
97.

----------------------------------------------------------------------------------------------

a. The purpose for tendering the evidence is important.

There are several cases wherein courts have held evidence objected to under
ss. 91 or 92 or their equivalents to be admissible because the purpose for which the
evidence was tendered did not fall under purview of the sections. For example, in
515
Famal Ilahi s/o Fazal bin v Stam, (1950), 17 E.A.C.A 66 where the appellant and
respondent had purchased a business from X, including payment of 7000/- for
“fixtures, fittings, chattels and effects and other stock in trade”. Subsequently the
partnership was dissolved and disputes referred to arbitration. The arbitrators
found that as regarded the 7000/= mentioned in the deed of assignment, no such
asset was handed over. The question involved was whether evidence had been
properly admitted to dispute the value, and the court on p. 67 said:-

“These sections .. were designed to shut out oral evidence

tendered with he object of contradicting, modifying, or varying
the terms of any written contract or other instrument as between
the parties. The evidence received in this case by the arbitrators
was not put forward in any was for the purpose of altering the
terms of the deed of assignment as between the vendor .. and his
vendees, a contract which had long before been executed and
discharged, but to enable the arbitrators to ascertain the true
worth of the partnership assets at a certain the true worth of the
partnership assets at a certain stage in the partnership. In these
circumstances I fail to see how either section .. bars the reception
of the evidence ...” (per NILHILL, C.J).

Paul J., phrased it as followed: (68):-

516
 “..... I consider that the learned Judge in that conclusion was under the
complete misapprehension of the meaning and effect of sections 91.
and 92 ... as applied to this case. The two sections .... are designed to
protect a written contract from being contradicted in any of its terms
by oral evidence.

The question which arose before the arbitrators and upon which
they rightly received oral evidence was the question to what extent, if
any, the vendor had implemented his contract of sale.”

Again, in Shah Mohanlal Karamshi v T.A. De Sousa, , (1941, 8 E.A.C.A 1,3, the
court said in a case involving the transfer of land:-

“Section 92 really modifies the English law and the evidence as to this
other contemporaneous agreement could only be excluded if it were
inconsistent with the terms of the option agreement which it is not.“

Similar problems arise in cases involving mortgages, e.g Bilous v Bilous (1957
E.A. 96 (C.A.) wherein the evidence offered did not contradict or vary the
conveyance and mortgage in question, but intstead served to establish an equitable
interest in land “to which the conveyance and mortgage (did) not in any way refer,
either positively or negatively”. (p. 99). (*)

Along similar lines, see the special rule of evidence contained in s. 18 of the
alienation of Land Decree, 1934 (cap. 112 of Zanzibar) as set forth in Moosaji
Tayabali v Suleiman bin Nassor binKhelef, (1042), 9 E.A.C. A 29, 30 whereby
oral evidence was admissible to prove the existence of n oral agreement that the
517
transaction amounted to a mortgage rather than a conveyance. Being an exception
to the provisions in the Evidence Decree, ss 97 and 98 are not applicable, but the
general approach is the same. (followed in Saleh bin Mohamed v Suleiman bin
Yusuf bin Ahmed, (1957) E.A. 163 (z) on the burden of proof).

Nor does s. 98 preclude the admission of evidence to show an undisclosed

principal where the agent is a party to the suit. Shah v Mohamed Haji Abdulla
(1962) E.A. 769 (K) involved a contract for the sale of the land signed by vendors
and purchaser. The defendants claimed that as the written agreement showed one
KG as the purchaser, evidence could not be admitted to contradict the terms of the
agreement and show that KG was acting as the agent of the plaintiffs, undisclosed
principals, and placed reliance on ss. 91 and 92 I.E.A. .
The court at p. 778 said:-

“I think I need only deal with the issue as to whether oral evidence to
establish that (KG) was acting as the agent of the plaintiffs may be
admitted. I am clear in my mind that such evidence is admissible. At
p. 679 of SARKAR ... (10th Edn), it is stated:

“Even though a contract in writing was signed only by a certain party,

oral evidence could be adduced to show that another person was also a
party to the arrangement or was bound by it’. (authority cited).

After discussing authority the court concluded:-

“It is clear from the above that evidence is admissible to establish an

undisclosed principal, though its admission does not have the effect of
518
 discharging the agent from liability under the contract which he
signed.” (p. 779).

See also on this point: L Besson v Marali Visram, (1909. 1 Z.L.R.

* see also Rashid Nanji v Salim bin Issa, (1918), 7 E.A.L.R. 127.

6. Exception to the general rule of s. 98

There are six provisions to the rule in s. 98 which are actually exceptions to
the rule excluding extrinsic evidence to contradict, vary, add to or subtract from the
terms of a document proceed as provided for in s. 97 The principles (see
discussions from TAYLOR ON EVIDENCE (1st Edn) in SARKAR, p. 798 are
that the rule does not preclude parties to a written contract, etc from :-

1. providing that, either contemporaneously or as a preliminary measure,

they had entered into a distinct oral agreement on some collateral matter;

2. proving an oral agreement which constitutes a condition precedent on

which the performance of a written contract is to depend;

3. proving under proper pleading, that the document is altogether void, or

that it never had any legal existence or binding force either by reason of forgery or
fraud, or for the illegality of thesubject matter, or from want of due execution and
delivery;

519
 4. providing that the contract was made for the furtherance of objects which
are forbidden either by statute or common law;

5. proving that the writing was obtained by improper means such as duress;

6. proving that the party was incapable of contracting by reason of a legal

disability such as infancy, insanity or intoxication;

7. proving want or failure of consideration (although where only nominal

consideration is recited in the instrument, a party will be allowed to show a
substantial consideration by parole evidence)

8. proving mistake in fact i.e that the document speaks a different language
from what the parties intended.

a. Proviso (i)

any fact may be proved which would invalidate any document which
would entitle any person to any decree or order relating thereto; such
as fraud, intimidation, illegality, want of due execution, want of
capacity in any contracting party, want or failure of consideration, or
mistake in fact or law.
****

Note here that the rule in s. 98 clearly implies that the document under
consideration is a valid document; therefore facts are admissible which invalidate
the document and entitled any party to a decree or order for rectification:
520
 The correction of and error in an instrument, e.g. a conveyance on the
ground of mutual mistake.

Or recession.

To rescind a contract is to put the parties back where they started; to

declare the contract void.
for one of the reasons listed in the proviso. The use of the words “such as”,
followed by illustrations, indicate that other invalidating facts are also admissible.
In H.J. Patel v Fulabhai Bhailalbhai Patel, (1941), 19 K.L.R (2) 41. Here, in a suit
on a bond, which set out consideration for the payment of money by installments
with the usual default clause, and default having been made, the
defendant .........liability on the ground that the transaction covered by the bond
was a money lending one, and that at all times material to the case the plaintiff was
an unlicensed money lender, making the transaction void for illegality. The
plaintiff raised the preliminary point of law that it was not open to the defendant to
give evidence that the transaction was a money lending one. The court said
(p.43):-

“Although section 5 of the Money lender Ordinance does not

expressly prohibit an unlicensed money lender from entering into a
money lending transaction it makes it an offence for him to do so, and
applying the principles laid down (in a cited English case) I have no
hesitations of an unlicensed money lender in this country as he come
to regarding transactions of an unregistered money lender in
England.” (i.e that the transaction was void for illegality).
521
The court then cites proviso (I) and continued:-

“It is clear that facts invalidating a document can be proved. If the

defendant con establish that the bond in this case is an agreement
entered into by an unlicensed money lender in the course of his
business as a money lender with respect to the repayment of money,
he would then in my view prove the document to be invalid.”

As to want or failure of consideration:-

In Twentsch Overseas Trading Co., ltd v Jamal Kanji (1960) E.A. 810
(C.A.)., the appellant and respondent entered into a hire purchase agreement for the
purchase of a car. On a suit in Magistrate’s court for an order to transfer the car
into the sole name of the respondent evidence was admitted under proviso (I) to
show that only 1600/= had been paid in cash and that the balance of 2800/= was
represented by the value of a second hand car which the respondent had left in part
exchange; that the appellants had given only temporary credit for the second hand
car, and that the responsibility for selling the second hand car remained with the
respondent. The High Court reversed, and the Court of Appeal dealt with the
finding of the High Court that oral evidence was not admissible to contradict the
written agreements and the receipt which it contained acknowledging receipt of
4440/= as a deposit. From p. 814;-

“in any event it was in my opinion to the owners to show there had
been a failure of consideration; .. It is not a case of varying the amount
of the consideration, which would of course be varying a term of a
522
 contract, but rather of contradicting the fact, apparent on the face of
the agreement that deposit had been received in full. In
WOODROFFE’S LAW OF EVIDENCE (9th Edn) at p. 661 it is said
in reference (to a cited Indian decision),

‘Section 92 will not debar a party to a contract in writing from

showing, notwithstanding the recitals in the deed, that the
consideration specified in the deed was not in fact paid as therein
recited, but was agreed to be paid in a different manner’

In the case of Pandurang v Vishwanant, (1939), A.I.R Nag. 20 to which the learned
judge referred, it was said by the court:

‘If then one party to a document can show that he did not receive the
consideration specified though the document recites that he did, I can
see no reason why the other party should not be allowed to show that
the consideration was paid in full, not in cash but in kind. The two are
adjustments. That fact would, in the language of the proviso, ‘ entitle
him to a decree or order’.

In the instant case this is virtually what happened. The owner proved that they did
not receive the full cash deposit specified in the document, though receipt was
acknowledge therein, and the hirer sought to prove that the consideration was
partly in kind.”

The appeal was allowed and the evidence ruled admissible.

523
As to mistake:-

The Uganda Timber produce Co. Ltd v the Registered Trustees etc 1943, 10
E.A.C.A. 24 involved a dispute over timer rights in land.

The respondents had been induced after an exchange of correspondence to sign an

indenture. The Government had a sincere but erroneous view that the respondents
had never acquired any timber rights in the land. The respondents signed the
indenture believing that they had singe away nothing, a belief induced by a letter
received from the land officer. The section involved s. 91 U.E.O., is the
equivalent of s. 98 K.E.A.,

After quoting the section and proviso (I) the Court, citing authority, set forth
the following principles on . p 26:-

“For the purpose of determining the existence of a mistake in a written

document oral evidence is admissible when the circumstances are
appropriate. ... This evidence must be clear and the court in weighing
it will be entitled to take into consideration ( the party’s) capacity and
all the circumstances as they existed at the date of the same..’

Again a mistake as to the meaning of the words used may be

accompanied by another mistake as to the subject matter dealt with by
the contract; and if the parties are not ad idem as to the subject matter
about which they were negotiating there is no real agreement between
them.”

524
The court decided that since the Government was mistaken about the timber rights,
and the respondents believed they were signing away nothing, the parties executing
the indenture were not ad idem and oral evidence was admissible to prove the
mistake.

In determining whether a bonus was due to the respondent Cheleta Coffe v

Mehlsen, (1966) E.A 203 (C.A.) the respondent having been employed as
manager of a coffee plantation, the term “calendar year” came into issue. The
appellants contended that the word “calendar” was inserted by inadvertence in
copying the respondents previous contract, and that the previous contract
admissible and that the previous contract admissible to contradict the contract sued
upon, by virtue of proviso (I) After discussion the circumstances, the court said on
p. 206:-

“For these reasons I think the word ‘ calendar’ was inadvertently

inserted in the document and ought to be discard. I am strengthened
in this belief by a perusal of the respondent’s previous contract and by
his evidence that for his contract with the appellant company he
copied out this earlier contract with appropriate amendments. The
previous contract is therefore, comparable with a draft and while a
draft cannot, in my opinion be looked at as evidence of negotiations, it
may I think be used, under proviso (1) to s. 98 of the Evidence Act, to
show a mistake. The Previous contract ran from January 1, 1960 and
in respect of that contract, a year of the contract and calendar year
meant the same. The first two sentences of para 4 are identical with
the corresponding sentences of the previous contract and I think it is
obvious that the word ‘calendar’ was copied inadvertently, the
525
 respondent overlooking the fact that it was inappropriate as the new
contract was not to begin on January 1”

Note: Another case making the point that the negotiations are never admissible to
vary the terms of a written contract which results from the negotiations in
Jinagnbhai and Co v Eustace Sisal Estates (1967) E.A. 153, 159, (C.A.)

b. Proviso (ii)

The existence of any separate oral agreement as to any matter on which a

document is silent, and which is not inconsistent with its terms, may be proved,
and in considering whether or not this paragraph of this proviso applies, the court
shall have regard to the degree of formality of the document.
*******

In the proviso the words “separate oral agreement” evidently refer to a prior
or contemporaneous oral agreement, in as much as proviso (iv) deals with
subsequent oral agreements.

Where there is a prior or contemporaneous oral agreement concerning the

matters with which the document deals, and the document is silent as to this
agreement, evidence may be given concerning the agreement provided it neither
contradicts the terms of the document nor is inconsistent with it.

The proviso provides that the “court shall have regard to the degree of
formality of the document”, for the principle rule in s. 98 deals with contracts and
other documents which have been formally and carefully prepared, and are
526
therefore presumed to contain all the agreements between the parties. Where the
document is of a less formal nature, this presumption is weakened. Illustrations (f),
(g) and (h) of the I.E.A., s. 92(2) show how the matter is to be a distinct collateral
matter, i.e. one which is independent of, but subordinate to, the agreement
affecting the subject matter, but which is not in consistent with the contract, grant
or other disposition of property:-

(f) A orders goods of B by a letter in which nothing is said as to the time of

payment, accepts the goods on delivery. B sues A for the price. A may show that
the goods were supplied on credit for a term still unexpired.

(g) A sells B a horse and verbally warrants him sound. A gives B a paper in
these words: “ bought of A a horse for Rs. 500”. B may prove the verbal warranty.

(h) A hires lodgings of B, and gives B a card on which is written “Rooms,

Rs. 200 a month” A may prove a verbal agreement that these terms were to include
partial board.

Note that in none of the illustrations is the oral agreement inconsistent with
the written agreement.

In Khimji Shimji and Bros v shivji Jetha, (1948), 23 K.L.R. (1) 6, the
defendant guaranteed to have goods taken by a third person returned by writing on
a list of the goods, “Guaranteed to be the stuffs returned”, and signing it. In the
lower court the magistrate found that the writing constituted the whole of the
contract of guarantee, and that the court was not entitled to look further than the
document to ascertain the scope and terms of the contract. The decision was that
527
the defendant had not guaranteed payment for the price of the goods upon a failure
to return or pay for them, but had only guaranteed the return of the goods. Plaintiff
had set out to offer evidence in support of the claim of a guarantee if the goods
were not returned. On appeal, the court said (p.8):-

“In this case the writing is so informal and difficult to understand that
it is hard to regard it as a contract at all within sections 91. and 92...;
but if it does come within those sections then to my mind proviso 2 to
section 92 clearly applies and the Court below was entitled to and
should have considered the whole evidence to ascertain the precise
terms of the contract”.

Hansen and Soehne A..B.E, v Jetha ltd., (1959 E.A. 563 (T) was an action
against three alleged sureties who had signed a document relied on as a contract of
guarantee, being a letter with three signatures and a space for a fourth signature
which had never been added. The evidence showed that the draft letter was handed
to the three respondents in order that they should sign, procure the fourth signature
and return the document to the plaintiff. The document are returned with three
signatures and the sureties stated at the time that their signatures were sufficient
surety. At the trial the surety/respondents claimed that the guarantee was subject
to a condition which had not been fulfilled, that the contract of guarantee had not
been completed and that the application was time barred. The Appeal Court on
p.556 noted:-

“I hold that evidence of the oral agreement is admissible under the Evidence
Act, s. 92 proviso 2. There was no condition precedent so that not arise.
Even accepting the respondents affidavit as correct when they say that they
528
 singed the instrument of the basis that the fourth guarantor would sign, that
was not the basis upon which they communicated their acceptance by
delivering the signed document and so completing the contract. At the time
of execution there was no contract that the creditor should set upon the
guarantee until the fourth surety had signed, as contemplated by s. 144 of the
Contract Act. On the contrary, there was a collateral agreement that the
fourth surety would be dispensed with. The respondents are not absolved
from liability merely because the fourth surety did not sign.”

Insurance Company of North America v Baelein and James (1960) E.A. 993
(u) discussing s. 91 U.E.O. relies upon proviso (2) and illustrates the difficulties
encountered by a court in determining whether the facts constituted additional
consideration.

c. Proviso (iii)

the existence of any separate oral agreement constituting a condition

precedent to the attaching of any obligation under any such contract, grant or
disposition or property may be proved
*****

If there is a separate oral agreement which sets forth that the terms of a
written contract shall either not take effect, or will be of no force, until the
happening of a specified condition precedent, oral evidence is admissible to show
that the conditions have not been performed, and therefore the contract did not take
effect. Consequently there was no written contract at all.

529
Illustrations (b) and (j) of s. 92 I.E.A. are illustrative:-

(b) A agrees absolutely in writing to pay B Rs 1,000 not he first of March.

The fact that, at the same time an oral agreement was made that the money should
not be paid until the thirty-first March cannot be proved.

(j) A and B make a contract in writing to take effect upon the happening of a
certain contingency. The writing is left with B, who sues A upon it. A may show
the circumstances under which it was delivered.

Note how, under (b), the separate oral agreement would contradict or vary
the terms of the written agreement, whereas in (j) the terms of the writing are not
contradicted, varied or added to; it is merely that the contract itself is not to come
into effect until the happening of the condition precedent. Therefore a collateral or
contemporaneous agreement which served only to suspend obligations which have
already come into being under the contract (as in (b) cannot be introduced into
evidence, whereas it is permissible to present evidence of a contemporaneous
agreement under which the parties agreed that until the happening of a certain
event, no obligation at all arises under the contract.

An example of the application of the Proviso is found in Pindi Dass Ghai v

Ved Parkash Mondal (1948), 23 K.L.R. (1) 9 wherein a post date cheque was
drawn by the respondent in favour of the appellant to replace the amount of two
dishonored cheques drawn by the firm in which the respondent was employed, on
the oral agreement that the cheque would not be presented to the bank for payment
until he was ascertained that the firm had credited the respondents account with the
amount. His account was not credited as the firm went into liquidation, so he
530
stopped payment on the cheque. The appellant sued him on the dishonored cheque
and the respondent tendered evidence or the oral agreement and the magistrate
found that he was not liable to pay. The Court, citing authority, ruled against the
submission that the evidence tendered in proof of the oral agreement was
inadmissible, and said (p. 10 that this was not an attempt to prove verbal evidence
that liability was to commence only after a certain event, but to establish that it was
the intention of the parties that the cheque was not to be operative at all until after
a certain event had happened.

d. Proviso (iv)

the existence of any distinct subsequent oral agreement to rescind or modify any
such contract, grant or disposition of property may be proved, except in cases in
which such contract grant or disposition of property is by law required to be in
writing, or has been registered according to the law in force for the time being as to
the registration of such documents.
*****

SARKAR at p. 821 says:-

“ Where a transaction has been reduced into writing not because the law
requires it to be done, but by agreement for the convenience of the parties, parcel
evidence of any distinct subsequent oral agreement modifying or rescinding it
altogether is admissible. The reason is obvious. After having entered into a
531
contract, (which the law allows to be made orally or in writing) the parties are free
to make a new contract waiving, annulling, modifying or altering it. Such distinct
and subsequent agreement creates a separate transaction. It is a sort of notation.
thus parcel evidence is admissible to show that the prior written contract has been
waived or replaced by a new parol agreement or the time and place of performance
has been changed... The parol agreement must be subsequent in time. Agreements
or negotiations prior to a contemporaneous with the written instrument, are
excluded.

But where a matter has been reduced into writing because the law requires it
to be in writing for its validity, no parole evidence can be given of any subsequent
agreement rescinding or modifying it. It can only be waived, rescinded, modified
or altered by another written instrument of equally solemn character. The criterion
is not whether the subsequent agreement is required by law to be in writing, but
whether the original contract the terms of which the subsequent oral agreement is
to rescind or modify is by law required to be in writing.
The same rule applies to all registered instruments, whether or not
registration is compulsory under the law. The expression ‘or has been registered’
refers to the fact of registration and not to the requirement of law. So, when a
writing embodying a contract, grant etc has been registered (although registrations
not compulsory), parol evidence of any subsequent agreement modifying or
rescinding the registered instrument is not admissible. It must be modified, altered
or waived by another registered instruments.”

The distinction between documents required by law to be in writing, and in

writing by of the parties without legal requirement, is important

532
in determining whether the proviso is applicable. The Court in Jiwan Singh v.
Rungnath Jaram, ( 1945), 12 E.A.C.A 21, 24 - 25 pointed this out as follows:-

“.... the learned Judge held that evidence as to variation of the contract in the
present case was admissible, and rightly admitted, under proviso 4 ... I am of
opinion that his conclusion was right though I do not follow his reasoning.
He seems to have agreed with the argument that ‘the contract was, under the
sale of Goods Ordinance, 1930, required to be in writing as being a
contract for the sale of goods above the value of 200’. That of courts, would
be a perfect reason, if it were true, for excluding , rather than admitting the
evidence of a subsequent oral agreement varying the written contract.. she
would not justify the learned judge’s conclusion that there was a subsequent
oral agreement falling within proviso 4 ... and sufficient to make the
evidence complained of admissible.

In fact, according to my view, the evidence as to variation was

admissible in this case for the reason that the present contract in order to be
enforceable was not required by law to be in writing.”

Similarly in Isahkiya v. Jusub, (1965) E. A. 241 (U) it was submitted that evidence
of a parole agreement was inadmissible because the agreement was required by
law to be in writing, since it was ineffectual to pass any estate or interest under the
Registration of Titles Ordinance (Cap. 123 of Ugandan). Counsel agreed that the
instrument was not in statutory form and could not therefore have been registered
but the court in examining the document decided that the tenancy agreement was
an agreement for a lease, and in the circumstances there was nothing in the law to
533
prevent the parties, before rent was paid from agreeing by another agreement for
lease and in the circumstances there was nothing in the law to prevent the parties,
before rent was paid from agreeing by another agreement that the rent should be
fixed sum; the evidence was held admissible under the proviso.

Another discussion of the proviso is found in Century Automobiles ltd b

Hutching Biener ltd., (1965) E. A 304 (C.A). Here an agreement had been made
between the appellant and respondents complained to lease premises. The tenancy
by the appellant was terminable by three months’ notice and no alterations were to
be made without the prior permission of the respondent/landlord. Shortly
thereafter the appellant proposed to change one of the building in a shop, and
preliminary drawings of the proposed changes were shown to the managing
director of the respondent. The managing director said that he had no objection to
the proposed conversion, provided that it was done at appellants expense, that the
tenancy would not be disturbed unless plans for building a supermarket on the site
were successful, and that it would take three or four years to obtain permission
form the City Council. Relying on this, the appellant spent £1800 carrying out the
conversion but shortly thereafter the respondent gave three months’ notice to quit
and deliver vacant possession, which the appellant refused to do. In holding that
evidence of the alleged assurance was admissible under ss. 97 and 98 K.E.A., and
proviso (iv), the Court at p. 308 said:-

“The terms of the contract were not in dispute and not attempt was
being made to contradict, vary, add to or subtract from them. What
was being asserted was that a subsequent assurance was given, which
when acted upon raised an equity in favour of the appellant company
and precluded the respondent company from exercising its undisputed
534
 contractual right. Paragraph (iv) of the proviso is not relevant,
because the very bias of the argument on equitable estoppel is that
there was not subsequent oral agreement.”

e. Proviso (v)

any usage or custom by which incidents not expressly mentioned in any contract
are usually annexed to contracts of that description may be proved, if the annexing
of such incident would not be repugnant to, or inconsistent with, the express terms
of the contract.
****

For a discussion of usage’s, see discussion from C.A. Harilal & Co v

standard Bank ltd., (1967) E.A. 512 (C.A.) on p. 139, supra in connection with
opinion evidence of persons with special knowledge.

In commercial and other transactions in which established usage prevail, it

has long been settled that extrinsic evidence of custom and usage is admissible to
“annex incidents” to written contracts in respect of which they are silent, on the
principle of presumption that in such transactions the parties do not mean to
express in writing the whole of the contract by which they intend to be bound, but
to contract with reference to known usage. Evidence of these customs and usage
are admissible so long as they are not inconsistent with the terms of the contract.
The Court in Brown v Byrne, 3 s. and B 703, quoted in SARKAR on p. 831
explains the reasons as follows:-

535
 “Mercantile contracts are very frequently framed in a language
peculiar to marchants; the intention of the parties though perfectly
well known to themselves, would often be defeated if the language
were strictly construed according to its ordinary import in the world at
large. Evidence, therefore, of mercantile custom and usage is
admitted in order to expound it, and arrive at its true meaning. Again
in all contracts, as to the subject matter of which a known usage
prevails, parties are found to proceed with the tacit assumption of the
usage; they commonly reduce into writing, the special particulars of
their agreement, but omit to specify those known usage’s which are
included however, as of course by mutual understanding; e evidence,
therefore, of such incidents is receivable. The contract in truth is
partly express and in writing, partly implied or understood and
unwritten. What words are more plain than ‘a thousand’ ‘ a week’ ‘ a
day’? Yet the cases are familiar in which ‘ a thousand ‘ a week only a
week during the theatrical season; ‘ a day’ a working day. In such
cases the evidence neither adds to nor qualified nor contradicts, the
written contract - it only ascertains it by expounding the language”.

f. Proviso (vi)

any fact may be proved which shows in what manner the language of a document
is related to existing facts.
***

This proviso actually applies to the interpretation of documents, in this

instance, the interpretation of those proved under s. 97. The problem is to
536
ascertain the intention of the parties to the contract, but these intentions must be
discovered from the language of the document. as explained by the extrinsic
evidence, and no evidence will be admitted to contradict, etc., the language of the
document. The evidence is merely explanatory, shedding light on the meaning of
the words used.

Proviso (vi) is application whether is a latent ambiguity in the document, i.e

when the language of the document is not on its face consistent with existing facts.
(See discussion of ambiguities, ss 99 - 101 infra). In other words, when there is a
language of the document, facts may be proved which show in what manner the
language and the facts are related. The scope and limitations of the rule are found
in ss. 99 - 103 K.E.A.,

In Mohamed Rashan v Santa Singh (1959) E.A. 717 (C.A.), the appellant a
contractor, under a written agreement had contracted with the respondent to carry
out excavation and filling work at the rate of 15/- per 100 cubic feet. At some
stage the appellant’s copy of the agreement was amended by the substitution of the
figure 17 for the figure 15 and the alteration was signed by the respondent. The
defence pleaded, and the judge found as a fact, that the work to which the
agreement related originally to the first stage only and that subsequently the
appellant undertook to carry out the second stage on similar terms except as to the
rate of payment. At the trial evidence was given without objection as to the
circumstances in which the alteration was made but was claimed to be inadmissible
by counsel during the summing up. On appeal, the question was whether the
evidence was admissible under s. 92 I.E.A...

537
 The court held: (i) that by a subsequent oral agreement the written
agreement had been extended to apply to a new task and at the same time an
alteration was made in the rate of payment recorded in the written agreement;
accordingly evidence was admissible under proviso 6 of s. 92 to show how the
language of the altered instrument related to existing facts, and (ii) that the trial
judge was right in admitting evidence to show that the parties intended the
alteration in the instrument to apply to the second task only. In discussing the
reasons for coming to this conclusion, the court said on pp. 724 - 725:-

“It is well established that where it is clear on the fact of a

contract the written document does not contain the whole of the
agreement between the parties, the terms not embodied in the writing
may be proved by oral evidence MONIR LAW OF EVIDENCE (3rd
Edn.) p. 672) The contract in the instant case refers generally to ‘the
excavation and filling of ground at Kaini Hills’ but contains no details
of the work envisaged. Evidence was therefore properly admissible to
establish the extent of the work. Such evidence established that the
work to which the original contract referred was the excavation of the
‘crusher parking area’ was allotted in or about the beginning of
August... The position therefore is that by a subsequent oral
agreement the agreement of June 1 is extended to apply to a new task
and at the same time as the oral agreement an alteration is made in the
rate of payment recorded in the written agreement of June 1. In this
situation I think evidence under proviso (6) to s. 92 of the Evidence
Act is admissible to show how the language of the altered instrument
is related to the existing facts. I would therefore hold that the learned
judge was not wrong in admitting evidence to show that the parties
538
 intended the alteration in the instrument to apply to the second task
only.”

A slightly different approach was taken by GOULD J.A. in his concurring opinion
on pp 726 - 727, when he said:-

“While I do not dissent from the approach made to the matter

by the learned Vice President in relying upon proviso (b) to s. 92... I
do not see anything in the section itself which would prevent the
defendant in the court below from bringing evidence to show that the
document relied upon by the plaintiff evidence a new contract and
was spent as far as the first contract was concerned. The evidence
would not contradict, vary add to or subtract from the terms of the
new contract.”

The facts in Jiwan Sign v Rgnath Jaram (1945), 12 E.A.C.A. 21 were that
the respondent was the owner of a chalk quarry, and the appellant purchased 12
tons of chalk for his business, taking delivery of ½ ton. It was then orally agreed
between the parties that the balance of the first two tons were to be delivered at
Eldoret by rail along with the other 10 tons. In due course the respondent
dispatched 10 tons 14 cwt of chalk, i.e. a quantity short by 16 cwt. of the amount
which should have been sent in accordance with the written contract as varied by
the subsequent oral agreement. The appellant rejected the goods on the ground
that the chalk was not according to order. At the trial the respondent was allowed
to prove the oral variation of the written contract. In discussion the question of the
admission of the evidence (p.30), the court said:-

539
 “ The next ground of appeal is that the Courts below were wrong
in admitting oral evidence to vary the terms of an agreements in
writing. In my opinion in the circumstances of this case and on the
wording f the contract, proviso 6 ... applies. The words ‘10 tones of
chalk’ might appear prima facie to mean any chalk but they are also
capable of meaning certain unidentified chalk which had been
selected and which weighed ten tons and oral evidence wa rightly
admitted to show what was really the subject matter of the contract. ...
Oral evidence was also admitted and I think rightly of an agreement
between the parties to vary and mode of delivery by having the
balance of the chalk sent by rail to Eldoret where the appellant took
delivery”

The proviso was again cited in Marie Ayub v Standard Bank of South Africa,
(1961 E.A. 743 759 (C.A):-

“ As already stated, I think that evidence of the circumstances

surrounding the execution of the agreement was admissible under
proviso (6) .. whether evidence of the course of dealing (which must
be a course of dealing by both parties) was admissible or not would
depend on whether the meaning of the document was doubtful
MONIR ON EVIDENCE (3rd Edn) p. 682; N.E. Railway v Hasings
(lord), 1900 A.C. 260”

The proviso does not apply in such a way as to allow the court to look at
previous drafts of a contract in order to interpret a clause (see p. 222 supra, and
Virbhai v Bhatt, E.A.C.A. Civ. Application NO. 25/1964, unreported), this being
540
distinguished from the situation where the court may look at the surrounding
circumstances for purposes on interpretation; see Jinabhai and Co., v Eustace Sisal
Estates (1967) E.A. 153 (C.A).

7. Evidence of variation given by the parties.

If the evidence of variation of the terms of the document nor a

representative in interest of a party to the document, the evidence is admissible.

105. Persons who are not parties to a document, or their representatives in

interest, may give evidence of any facts tending to show a contemporaneous
agreement varying the terms of the contract.
***
This section merely emphasize the application of the words “as between the parties
to any such instrument or their representatives in interest” in s. 98 by repeating it
as a separate rule.

Example:-

A and B make a contract in writing that B will sell A certain cotton, to be

paid for on delivery. At the same time they make an oral agreement that three
months’ credit shall be give to A. This could not be shown as between A and B,
but it might be shown by C if affected his interest.

8. Construction of documents with the aid of extrinsic evidence.

541
 The construction, or interpretation of a document means ascertainment of the
moaning of the language in a document, or the manner in which the language is
related to existing facts. The expression “construction” as used by English lawyers
relates first to the meaning of the words in the document, and second the legal
effect of these words or the meaning given to the words. For a commentary on the
general principles of construction of documents, see SARKAR, P. 842 et seq.

Section 99 - 104 K.E.A deal with the admission of extrinsic evidence, i.e
evidence from outside the document, as an aid to the court in interpretation of the
language of a document which has been admitted in evidence.

Section 99 - 104 K.E.A deal with ambiguities in documents. An ambiguity

is a “double meaning”, e.g. where a word or phrase may have more than one
meaning and it is not clear which meaning was intended. Ambiguities are of two
kinds: (1) patent ambiguities i.e those which are apparent on the face of the
instrument, and (2) latent ambiguities, those which are not apparent on the face of
the instrument, but which become apparent when the language is applied to
existing facts, for example, property is left in a will to “my niece, Mary” and it is
shown that the testator had two nieces both name Mary.

a. Patent ambiguities.

542
99. When the language used in a document is one the face of it ambiguous or
defective, evidence may not be given of facts which would show its meaning or
supply its defects.
*******

Courts must interpret documents, but the intention of the parties must be
determined from the language of the document; for a court to import words into
documents which, because of inadequate expression, are incapable of having
meaning, or to supply intention, would be for the court to make the document
rather than the parties. Witnesses may not be called to interpret documents except
in those limited cases where expert evidence is permissible under the Act.

There is a distinction between ambiguity and inaccuracy. As stated by

WIGRAW, EXTRINSIC EVIDENCE (2nd Edn) p. 130 (see SARKAR, p. 847);

“Language may be inaccurate without being ambiguous and it may be

ambiguous although perfectly accurate. If, for instance a testator,
having one lease hold house in a given place, and another house,
were to device his freehold house there to AB the description, though
inaccurate would occasion no ambiguity. If however, a testator were
to devise an estate to John Baker, of Dale, the son of Thomas, and
there were two persons to whom the entire description accurately
applied, this description though accurate, would be ambiguous. It is
obvious therefore, that the whole of the class of cases in which an
inaccurate descriptions found to be sufficient, merely by the rejection
of words of surplusage are cases in which no ambiguity really exists.

543
 The meaning is certain, notwithstanding the inaccuracy of the
testator’s language.”

Visram & Karsan v Bhatt (1965) E. A. 789 (C.A.) dealt with the application
of s. 99. Here the plaintiffs demised to the defendant an undefined area within one
of two plots owned by the plaintiffs measuring 525 feet by 325 feet for quarrying.
A trespass action was eventually filed and the trial judge relied, without objection
by the defendants, on oral evidence defining the area demised. On appeal the
defendants argued that the oral evidence was wrongly admitted under s. 102 K.E.A.
as extrinsic evidence resolving an ambiguity as to the application of the lease in its
context.

The court in discussing the word “patent” in the marginal note to s. 99 see p.
(ix) said at p. 794:-

“Before oral evidence which is clearly relevant and which does not in
any way contradict or vary the lease can be said to be inadmissible the
case must fall within s. 99, that is the language of the lease must be
the face of it ambiguous or defective must always be a question of
degree. I consider that in determining the extent of that degree, I can
have regard to the use of the word the’ patent’ in the marginal note to
the section. (Discussion of historical reasons allowing consideration
of marginal notes in Kenya) ... Looking at s. 99 as a whole, including
the word ‘patent’ in the marginal note, I am satisfied that this section
only precludes the admission of oral evidence when the ambiguity or
defect is manifest an evident to general knowledge without regard
being had to any other factor. For example if the words of the lease
544
 were ‘I hereby demise’ followed by a blank space, this would be an
ambiguity or defunct immediately manifest without regard to any
other factor. If however the words of the lease were ‘Thereby demise
my coffee farm at Kiambu and extraneous evidence disclosed that this
created an ambiguity because the lessor had two had two coffee farms
at Kiambu, then this would not be a patent ambiguity. In the first case
oral evidence could not be admitted to show an intension to demise a
coffee farm at Kiambu; where as in the second case oral evidence
would be admitted to show which of the two coffee farms at Kiambu
was the subject of the demise. In my opinion the broad principle
which should be followed in order to determine whether the case falls
within s. 99 my be stated in this way: If the ambiguity or defect is
manifest without any regard to extrinsic evidence then it is patent and
falls within s. 99 if however, the ambiguity results from extrinsic
evidence then it falls outside s. 99 and the ambiguity crated by
extrinsic evidence may be resolved by extrinsic( emphasis added.

The court the decided that the case did not fall under s. 99 but did fall under s. 102;
see p. 233 infra.

b. Latent ambiguities.

101. When language used in a document is plain, but is unameaning in

reference to existing facts, evidence may be given to show that it was used in
a peculiar sense.
****

545
 The section contains the definition of latent ambiguity; examples may be
seen in the quotation from Visram & Karaan above. Another example is found in
Cheleta Coffee v Kehlsen, (1966) E.A. 203 (C.A) for the facts see p. 222 supra.
Here the Court determined that the word “year” could have one of four meanings
in relation to the document in question, and held that extensic evidence had been
properly admitted under s. 101 to resolve the latent ambiguity in the meaning of
the words “any year’s crop” (p. 205).

c Evidence to show inapplicability

100. when language used in a document is plain, and when it applies

accurately to existing facts, evidence may not be given to show that it was
not meant to apply to such facts.
****

“This section does not refer to any ambiguity, patent or latent or

otherwise. The rule embodied in its based on plain common sense. It
means that when the language is crystal clear and it applies correctly
or definitely to existing facts no evidence can be allowed to show that
the parties intended to mean something else, even though they have
acted long in a different way without understanding the true effect of
the plain words in a document.... When any document comes before a
court for interpretation, it will first try to ascertain its meaning by
looking into the language itself. When the words used in it are plain
in themselves, i.e. perfectly clear and free from ambiguity and there is
no doubt or difficult as to the proper application of the words to
existing facts, parole evidence is not admissible to show that the
546
 parties intended to mean other than what they have said . SARKAR, p.
849

This principle was reiterated in Choitram v Lazar, (1959 E.A. 157, 164
(C.A.); see pp. 213 - 214, supra. There the lower court had allowed extrinsic
evidence to explain the meaning of words written on a list of materials, and the
Appeal Court, after quoting from the above, held that the evidence had been
wrongly admitted..

In reading the three sections together, it becomes obvious that the court in an
appropriate case is confronted with the problem; (1) is there an ambiguity at all? (2)
if so, is it a patent ambiguity apparent on the face of the document, or a latent
ambiguity because the plain language of the document does not apply to existing
facts.

An example of the problem is Patel v Dhana Singh s/o Kakam Signh (1962
E.A 32 (C.A) where in the respondent had agreed to sell to the appellant a portion
of his land “estimated to comprise one hundred acres or thereabouts” as shown on
a sketch plan annexed to the contrast. The clerk of the advocate acting for the
parties had delineated a portion of the land with a red line. Owing to the failure of
the respondent to fulfill portions of the contract relating to survey, the appellants
engaged a surveyor who prepared a plan which the respondent rejected because it
did not conform to the area proposed for sale during negotiations. The appellants
then asked the respondent to refused and the appellants sued for specific
performance or damages. The trial Judge held that whereas the contract referred to
one hundred acres or thereabouts, the sketch plan annexed .......... a considerable
larger area. that the ............ was the description should prevail over the plan, tat the
547
precise land to be sold had never been and still had to be determined, and
accordingly there was no concluded agreement on which an order for specific
performance could be made.

One of the questions on appeal was whether there was in fact any ambiguity
in ”exhibit 1” the document and plan, for while exhibit 1 described the land as
“One hundred acres or there about the first plan showed an area which had been
estimated at 120 acres On the question of the admissibility of extrinsic evidence,
the court said (pp. 40 - 41);-

“.... it is my opinion that so much of (the extrinsic evidence) as related to a

construction of exhibit 1 was inadmissible..... I have already referred to s. 93;
(s.99) K.E.A.) in the commentary thereon in MONIR, ... (p.583), it is said-

‘the true view seems to be that insufficient description of property is

merely a latent ambiguity which can be removed by extrinsic
evidence”,

and is to be differentiated from certain kinds of patent ambiguity. Section 94

reads:
(quoted; s. 100 K.E.A.)

MONIR (supra) in commenting thereon at p. 586 says :

‘Etrinsic evidence is not, therefore, admissible to construe a document which is

plain and unambiguous and the intention of the parties to such a document must be
gathered from the language of the document itself’
548
and at the same page-

‘while the true construction of an obscurely framed document may be

determined by reference the conduct of the parties, no such procedure
is admissible when the terms of the instrument are unambiguous, for
no amount of acting by the parties can alter or qualify words which
are plain and unambiguous. If where is no ambiguity in a document,
the mere fact that the parties have acted on an erroneous construction
of an instrument furnishes in itself no reason why the courts should
not follow the general rule that an instrument should be construed
according to its natural meaning in the light of the circumstances in
which it was executed.’

d. Evidence of application to one of the several subjects.

102. When the facts are such that the language used in a document might
have been meant to apply to any one, and could not have been meant to
apply to more than one of several persons or things, evidence may be give
of facts which show to which of these persons or things it was intended to
apply.
*****

Note that the section deals with latent ambiguities. The fact that the
language could apply to more than one person or thing will be raised by extrinsic
evidence, therefore extrinsic evidence is admissible to show what or to whom the
language was intended to apply. This is illustrated by Visram & Bhatt’s case, p
549
230 supra where the court, after deciding that the case did not fall within s. 99,
continued (pp. 794 - 795:=

“The words of the demise are quite clear in themselves and it is only
by extrinsic evidence that it becomes known that there could be more
than one area measuring 535 feet by 325 feet within plot 37. As this
ambiguity is created by extrinsic evidence it can be resolved by
extrinsic evidence and I consider that the evidence identifying the
leased area was clearly admissible under s. 102. This interpretsation
of ss 99 and 102 would enable the courts to effectuate the intention of
the parties and thus give effect to the well known rule of construction
et res magis valeat quam perat. (it is better for a thing to have effect to
be made void in Fatuma v Murbhai Admji & Co., ( 1912), 4 E.A.L.R.
114) the High Court of East Africa held that extrinsic evidence was
admissible under s. 96 of the Indian Evidence Act, which 1963, to
identify which parcel of land was intended to be the subjects of an
agreement to sell ‘ a portion 30 x 33 feet of a plot of land which
belongs to our maternal Aunt, situated at Mambrui. As regards the
submission that the identification of the leased area took place during
the negotiations, I accept that evidence of prior negotiations would be
inadmissible; but this was evidence, not of negotiations, but to
identify the subject matter of the negotiations the final result of which
was embodied in the lease. As Lord Halsbury, L.C said when
delivering the judgment of the Privy Council in Van Diemen’s Land
Co. b Narine Board of Table Cape (1906) A.C. 92, 96):

550
 “All circumstances which can tend to show the intention of the
parties whether before or after the execution of the deed itself may be
relevant.’

For these reasons I am satisfied that the trial judge correctly admitted oral
evidence to identify the particular area which was the subject of the lease.”

e. Evidence of application to one of several sets of facts.

103. When the language used in a document applies partly to one set of
existing facts, and partly to another, but the whole of it does not apply
correctly to either evidence may be given to show to which of the two it was
meant to apply.
****

Section 103 also deals with latent ambiguities, and is illustrated in the I.E.A.
(s. 97):-

As agrees to sell B my land at X in the occupation of Y”. A has land at X,

but not in the occupation of Y, and he has land in the occupation of Y, but it is not
at X. Evidence may be give of facts showing which he meant to sell.

Here the precise words of the document cannot be applied in any event, and
the evidence is admissible to answer the question at to which words shall be
ignored as an essential part of the description.

f. Summary of rules in ss 100 - 103

551
 1. Where in a written instrument the description of the person or thing
intended is applicable with legal certainty to each of several subjects, extrinsic
evidence, including proof of declarations of intention, is admissible to establish
which of the subjects was intended by the author of the document. (s. 102).

2. If the description of the person or thing is partly applicable and partly

inapplicable to each of several subjects, extrinsic evidence, including evidence of
intention, is admissible for the purpose of ascertaining which of the sucjects the
language applies. (s.103)

3. If the description is partly correct and partly incorrect and the correct part
is sufficient to enable the court to identify the subject intended, while the incorrect
part is not applicable to any subject, parole evidence is admissible to the same
extent as in (2), and the statement will be rendered operable by rejecting the
erroneous statement. (s.101) Declarations of intention are admissible.

4. If the description is wholly inapplicable to the subject intended or is said

to be intended by it, evidence cannot be received to prove whom or what the author
really intended to describe (s.100).

5. If the language of the document, when interpreted according to its

primary meaning, is inapplicable to existing facts, extrinsic evidence is admissible
to show that in some secondary sense of the words in which the author meant to
used them, the document may have a full effect. (101)

(See SARKAR, P. 862).

552
g. Evidence to explain special words.

104. Evidence may be given to show the meaning of illegible or not

commonly intelligible characters, of foreign, obsolete, technical, local and
provincial expressions, of abbreviations and of words used in a peculiar
sense.
***
“Such documents cannot be rejected as ambiguous only because the
court has not the particular knowledge or skill which is necessary to
ascertain their true meaning. Experts or persons possessing the
requisite knowledge may be called to explain the meaning of such
terms. Extrinsic evidence is therefore admissible in order to help the
court come to a right understanding as to the meaning of such words.
“SARKAR, p. 863.

h. Wills,
106 Nothing in this part of this chapter shall affect the law relating to the
interpretation and construction of wills or other testamentary dispositions.
***
See, for example where evidence whether a niece called “Violet” in a will
was the same as “Mrs Violet Odell”, although extrinsic and collateral to the will,
was admissible under s. 62 of the Indian succession Act; 1865 to remove the
ambiguity in Re the will of Harry Edward Watts, (1955), 28, K.L.R 236

i . Unregistered documents - admissibility in evidence.

553
 Section 4 of the Registration of Documents Act, (Cap 285) lists certain
documents which must be registered, subject to penalty for failure to do so:-

4. All documents conferring, or purporting to confer, declare, limit or

extinguish any right, title or interest, whether vested or contingent to, in or
over immovable property (other than such documents as may be of a
testamentary nature)...

Section 18 the Act provided:-

18. A document the registration of which is compulsory under this Act shall
not, unless duly registered, be received as evidence in any transaction
affecting the property to which the document relates, except with the consent
of the court and upon such terms and conditions as the court may dispose:

Provided always that nothing in this Act shall make any document
inadmissible in any criminal proceedings.

Similarly, under the Government Lands Act (Cap 200). formerly the crown Lands
ordinance, no evidence may be given in any civil court of certain transactions
dealing with land unless by registered instrument (s. 100). Section 129 provides
that the Registration of Documents Act does not apply to documents registered
under Part 1 of the Act (Registration of Transactions Relating to Crown lands);

“Provided that, if any document relates both to land registered

under this part and to other land, such document shall be registered
under this Act and also under the Registration of Documents Act.”
554
Section 100 of the present Act was formerly s. 127 of the Crown Lands Ordinance
(Cap. 155).

In certain situations, evidence has been admitted despite the provisions of

the Crown Lands Ordinance because the nature of the evidence tendered does not
fall within the prohibitions listed. See, for example Edwards v Denning, (1958)
E.A. 628 (C.A. which held that s. 127 did not disqualify an unregistered
instrument in so far as it was to be received as evidence of a transaction affecting
immovable property; here the agreement was not tendered as evidence of a charge
as no charge was sought to be proved; Patel v Dhana Singh (1959) E.A. 921 (C.A.)
following Edwards v. Denning, the head note to which reads

“(ii) evidence of an agreement for sale and purchase is not excluded

by s. 127 of the Crown Lands Ordinance in an action for its specific
performance, merely because it also creates a charge or tenancy which
is not the subject of the action and in connection with which, without
registration the agreement could not be received in evidence;
registration of the agreement might be required before the documents
could be received in evidence in proof of a charge or tenancy.

See also Denning v Edwards (1960) E.A. 755 (P.C.), dismissing an appeal from the
Court of Appeal and Clarke v Sondhi Ltd., (1963) E.A. 107 (C.A.) which

555
considered whether an unregistered lease was admissible for purposes other than to
establish a legal estate.

Note the distinction between the language of s. 100 Government Lands Act
and s. 4 of the Restoration of Documents Act; the latter gives a discretion to the
court to admit the document on such terms and conditions as it may dispose, while
the former bars the evidence completely. As to evidence tendering under s. 4 of
the Registration of documents Decree (Zanzibar), See Ramji Dewji v. Ali bin
Hassan (1958. E.A. 297(Z).

j. Unstamped documents - admissibility in evidence.

Section 19 of the Stamp Duty Act (Cap. 480), subs (1) lays down the general
rule that subject to the provisions of subs. (3), duties of the court, etc to take notice
of the omission or insufficiency of the stamp and to take specified actions) and ss
20 (stamping out of time) and 21 (certain improperly stamped documents:

“... no instrument chargeable with stamp duty shall be received in

evidence.....................................

(a) in evidence in any proceedings and

(b) in civil proceedings by a collector to recover stamp duty,
Unless such instrument is duly stamped.

The Act sets forth in detail those instruments which are required to be stamped.

556
 Section 19 was drawn from s. 39 of the Stamp Duty Ordinance 1923 (Cap.
259, Laws of 1948) although it has been substantially revised. The following cases
may be looked to for reference to the application of s. 39 of the Ordinance or
equivalent sections in other territories: Nazim din Chur v. Devonshire stores,
( 1958) E.A. 729 (C.A., from Kenya; Ali Lalji v Idi s/o Khaembe, (1941), 8 E.A. C.
A. 20 From Tanganyika; Haridas Wathuradas Vagani v Lakhani ltd., ( 1949), 16
E.A.C.A. 5, from Kenya: Bakharesha v Bakharesha, ( 1956), 23 E.A.C.A. 55, from
Zanzibar.

JUDGMENTS

Sections 43 through 47 K.E.A. deal with the evidentiary effects of

judgments. Various terms have been used to denote the effect of earlier
judgments in later proceedings, e.g. res judicata, estoppel by record, estoppel
557
by judgment and in Karshe v. Uganda Transport Co., [1967] E.A.774, (U),
“res judicata by record”. SARKAR on p.1026 says:-

“Estoppel by matter of record, is chiefly concerned with the

effects of judgments in rem and judgment in personme, and their
admissibility in evidence. This kind of Estelle is dealt with in
[the Indian Civil Procedure Code] and in ss.40 –44 of the (Indian)
Evidence Act. Res judicata is either estoppel by verdict or
estoppel by judgment (or record) and apart from this there is no
such thing as estoppel by decree.”

Again on p.460, SARKAR quotes from the explanation of MAHMOOD, J. in

Sitaram v. Amir Begum, 8 A. 324, distinguishing between evidence and
procedure insofar as res judicata is concerned.

“SIR FITZ JAMES STEPHEN, the distinguished jurist who

framed the Indian Evidence Act, and whose views have been
accepted by the Indian Legislature in framing this section of the
Act, [s.40, now s.43 K.E.A.] adopted, what seems to be, the only
logical and juristic classification by treating the rule of res
judicata as falling beyond the proper region of the Law of
Evidence, and as appertaining to procedure properly so called.”

SARKAR continued:

“The rule of estoppel is not a rule of substantive law, in the sense

that it does not declare any immediate right of claim. It is a rule
558
 of evidence, but capable of having the greatest effect on the
substantive rights of the parties. Res judicata ousts the
jurisdiction of the court; while estoppel does not more than shut
the mouth of a party. To put it colloquially and compendiously,
estoppel never means more than that a person shall not be
allowed to say one thing at one time and the opposite of it at
another time; while res judicata means nothing more than that a
person shall not be heard to say the same thing twice over in
successive litigations. The law of res judicata does not compel
the court rying the latter suit to hold, without trial, that the
decision in the earlier suit was correct; it merely estops the parties
to the earlier suit was correct; it merely estops the parties to the
earlier suit and their privies from showing that it is incorrect. The
Judge trying the latter suit must give effect to the decision, but he
is not bound to hold that it is right.”

The phrase res judicata is part of the longer phrase res judicata pro
veritate accipitur, defined in OSBORN as:-

[A thing adjudicated is received as the truth.] A judicial decision is conclusive

until reversed, and its verity cannot be contradicted.”

Section 43 K.E.A. deals with the admissibility of judgments, etc., excluding

jurisdiction:-

The existence of any judgment, order or decree which by law prevents any
court from taking cognizance of a suit or holding a trial, may be proved
559
 when the question is whether such court ought to take cognizance of such
suit or to hold such trial.

Thus under s.43 the existence of the judgment, order or decree is admissible in
evidence; the effect of the judgment, order or decree upon the power of the
court to take cognizance of the suit or hold the trial is controlled by s.7 of the
Civil Procedure Act dealing with res judicata:

No court shall try any suit or issue in which the matter directly or
substantially in issue has been directly and substantially in
issue in a former suit between the same parties, or between
parties under whom they or any of them claim, litigating under
the same title, in a court competent to try such subsequent suit
or the suit in which such issue has been subsequently raised,
and has been heard and finally decided by such court.

The section also includes eight “explanations” to assist in interpretation.

A concise explanation of the relationship of the two sections is found in

SARKAR on p. 457:-

“[The Section] enacts that the existence of any judgment, order or

decree which by the law, that is by the provisions of the Civil Procedure Code
or Criminal Procedure Code (i.e., judgments in support of a plea of res
judicata, is to be determined under the separate adjective law.”

560
Note that the language of s.40 I.E.A., “ is a relevant fact ”, has been
amended in the K.E.A. to read “ may be proved ”, but the effect is the
same.

Section 44 K.E.A. covers judgments in rem.:

44.(1) A final judgment, order or decree of a competent court which confers

upon or takes away from any person any legal character, or which declares any
person to be entitled to any such character, to be entitled to any specific thing,
not as against any specified person but absolutely, is admissible when the
existence of any such legal character, or the title of any such person to any
such a thing, is admissible.
(2) such judgment, order or decree is conclusive proof-
that any legal character which it confers accrued at the time when such
judgment, order or decree came into operation;
(a) that any legal character to which it decares any such person to be entitled
accrued to that person at the time when such judgment, order or decree
declares it to have accrued to that person;
(b) that any legal character which it takes away from any such person ceased at
the time from which such judgment, order or decree declared that it had
ceased or should cease;
(c) that anything to which it declares any person to be so entitled was the
property of that person at the time from which such judgment, order or
decree declares that it had been or should be his property.

“Ordinarily a judgment binds only the parties to it. It is known as

a judgment in personem. The judgments for which provision is
561
 made in this section are usually called judgments in rem, a phrase
which denotes certain judgments which are conclusive not only
against the parties to them but also against all the world. A
judgment in rem is not defined in the Act. It is defined by Bower
as one ‘which declares, defines, or otherwise determines the
status of a person, or of a thing, that is to say, the jural relation of
the person or thing to the world generally.’ ” SARKAR p.463.

Abdulali Jiwaji v. Pandya, [1958] E.A. 521 (U) noted the distinction between the
definition of in rem in England and the definition which must be derived from a
reading of the relevant sections in the Evidence Acts. (Note in this connection that
the Indian, Uganda and Tanganyika sections are more restructive than the Kenya
section, containing as they do the phrase that the jurisdiction exercised must be in
probate, matrimonial, admiralty or insolvency jurisdiction, while this phrase has
been eliminated from s.44 K.E.A.). In this case an issue was whether the tenant
was estopped by an admission he had made in an earlier case from saying that he
was not a statutory tenant as alleged. The Court said:-

“The appellant contends that the judgment of the District

Court was a judgment in rem. A judgment in rem has
been defined in England as follows:

‘A judgment in rem, I conceive to be an adjudication

pronounced (as indeed the name denotes) upon the status
of some particular subject matter, by a tribunal having
competent authority for that purpose.’

562
 The Uganda Evidence Ordinance, by which I am bound in this
matter, contains no such definition. Section 39 of that Ordinance
states that a final judgment, order or decree of a competent court, in
the exercise of probate, matrimonial, admiralty or insolvency
jurisdiction conferring any legal character on a person shall be
conclusive proof that such legal character was conferred, etc., at the
time of such judgment. By s.40 judgments, orders or decrees other
than those mentioned in s.39 are relevant to the inquiry but such
judgments, orders or decrees are not conclusive proof of that which
they state.
To my mind the provisions of those two sections are fatal to the
appellant’s submission that the judgment in (the earlier case) was in
rem. Furthermore, an examination of the judgment in that case – there
was apparently no decree – shows that the res before the court was
whether the respondent as a statutory tenant fell within the definition
of ‘owner’ under the Local Government (Rating) Ordinance. The
Court of Appeal held that he did not. The judgment did not then in
any way alter the legal character of the respondent in any of the ways
mentioned in s.39 of the Evidence Ordinance, ”

Section 45 deals with the admissibility and effect of other

judgments of a public nature:-

Judgments, orders or decrees other than those mentioned in section 44 of this Act, are
admissible if they relate to matters of a public nature relevant to the inquiry, but
such judgments, orders or decrees are not conclusive proof of that which they state.
..
563
Example : A sues B for trespass on his land, B alleges the existence of a
public right of way over the Land, which A denies. The existences of a
decree in favour of the defendant in a suit by A against C for a trespass on the
same land, in which C alleged the existence of the same right of way, is
admissible, but it is not conclusive proof that the right of way exists.

Section 46 deals with inadmissible judgments:

Judgments, orders or decrees other than those mentioned in sections 43, 44 and 45 of
this Act are inadmissible except where the existence of such judgment, order or
decree is a fact in issue or is relevant under some other provision of this Act.
..
The examples under the equivalent section of the I.E.A. are illustrative of the
application of the section:

A and B separately sue C for a libel which reflects upon each of them. C in
each case says that the matter alleged to be libellous is true, and the
circumstances are such that it is probably true in each case, or in neither.
A obtains a decree against C for damages on the ground that C failed to
make out his justification. The fact is irrelevant as between B and C.

A prosecutes B for adultery with C, A’s wife B denies that C is A’s wife, but
the court convicts B for adultery. Afterwards C is prosecuted for bigamy
in marring B during A’s lifetime. C says that she was never A’s wife.
The judgment against B is irrelevant as against C.

564
 A prosecutes B for stealing a cow from him. B is convicted. A afterwards
sues C for the cow, which B had sold to him before his conviction. As
between A and C, the judgment against B is irrelevant.

A has obtained a decree for the possession of land against B. C, B’s son,
murders A in consequence. The existence of the judgement is relevant,
as showing a motive for the crime.

A is charged with theft and with having been previously convicted for theft.
The previous conviction is relevant as a fact in issue.

A is tried for the murder of B. The fact that B prosecuted A for libel and
that A was convicted and sentenced is relevant under s.8 as showing the
motive for the fact in issue.

In Ali K. Virani v. United Africa Co., [1958] E.A. 204 (C.A.), involving a suit for
refund of the price of coffee seized by the police after purchase from a company
whose director was later convicted of having received the coffee knowing it to
have been stolen, the conviction came into issue by admission on the pleadings.
The Court at p.210 noted that the section was inapplicable in view of the facts:-

“ we wish to stress that we did not overlook the

provisions of s.43 of the Indian Evidence Act, or of
illustration( c) thereto. And we accept the principles laid
down in Hollington v. Newthorn & Co. Ltd, [1943] 1
K.B. 587. But the position is somewhat different where
the conviction is not tendered in evidence, but proved by
565
 admission on the pleadings. It is still not proof that the
accused was rightly convicted, but it is not excluded from
consideration.”
See also Jinabhai and Co. v. Eustace Sisal Estates, [1967] E.A. 153
(C.A.) at p.162, where SPRY, J.A., referring to ss. 41, 42 and 43 of
the I.E.A. as then applied in Tanganyika held that the findings of the
trial judge in another case where a broker successfully claimed his
commission for a sale from the respondent company were not
evidence for the purposes of the present case.

If a judgment is tendered in evidence for any of the purposes set

forth in ss. 43 – 46, it is always open to the opposing party to show
that the judgment was incompetent, or inoperative for some reason.

Any party to a suit or other proceeding may show that any judgment, order or decree
which is admissible under the provisions of this Act and which has been proved by
the adverse party, was delivered by a court not competent to deliver it, or was
obtained by fraud or collusion.

Judgments, by virtue of the addition of s.47A by the Statute Law

(Miscellaneous Amendments) Act 1969 (No.10 of 1969) may, under specified
circumstances, be conclusive evidence of a previous conviction.

47A. A final judgment of a competent court in any criminal proceedings

which declares any person to be guilty of a criminal offence shall, after the
expiry of the time limited for an appeal against such judgment or after the date
566
of the decision of any appeal therein, whichever is the latest, be taken as
conclusive evidence that the person so convicted was guilty of the offence as
charged.

567
 BANKERS’ BOOKS

Sections 176 – 181, dealing with Bankers’ Books, was incorporated in

the K.E.A. in 1963, having formerly been Cap. 13, Laws of 1948. The
legislation was originally enacted in 1937 (Cap. 13, Laws of Kenya). There is
almost no judicial consideration of the sections in East Africa, the sections
being clear and precise in meaning, intent and the procedures to be followed.
568
 The legislation is modeled on the Bankers’Books Evidence Act of India
(Act No.18 of 1891), which in turn was drawn from the English law.

Definitions applicable to this Chapter of the Act are contained in s.3:-

“bank” means a person or company or other body of persons carrying on,

whether on his or their own behalf or as agent for another, any banking
business (as defined in section 2 of the Banking Act) and includes –
the Savings Bank constituted under the Post Office Savings Bank Act, and any
branch thereof; and
for the purposes of sections 176 and 177 of this Act, any person carrying on
banking business in Tanzania or Uganda.

“banker’s book” includes a ledger, day book, cash book, account book, and any
other book used in the ordinary business of the bank;

..

Sections 140 and 178 contain restrictions on the compelling of production of

bankers’ books:-

140(1) A Bank, or officer of a bank, shall not, in

any legal proceedings to which the bank is not a party, be
compelled to produce any banker’s book the contests of
which can be proved under the provisions of Chapter VII
of this Act.
569
 (2) No bank or officer of a bank shall be
summoned or called as a witness to prove any matters,
transactions or accounts recorded in a banker’s book
except by order of a judge or magistrate made for special
cause.
This section, included in that portion of the Act dealing with
compellability and privileges of witnesses is repeated almost verbatim
in s.178:-

178. A banker or officer of a bank shall not, in any

proceedings to which the bank is not a party, be
compellable to produce any banker’s book the contents
of which can be proved under this Chapter of this Act, or
to appear as a witness to prove the matters, transactions
and accounts therein recorded, unless by order of the
court for special cause.

As to the mode of proof of entries and proof and verifications of

copies of original entries:-

176. Subject to the provision of this Chapter of this Act, a copy of any
entry in a banker’s book shall in all legal proceedings be received as
prima facie evidence of such entry, and of the matters, transactions
and accounts therein recorded.

570
 ..
177.(1) A copy of an entry in a banker’s book shall not
be received in evidence under the provisions of section
176 of this Act unless it be first proved that –

the book was at the time of making the entry, one of the
ordinary books of the book; and
the book is in the custody and control of the bank; and
the entry was made in the usual and ordinary course of banking
business; and
the copy has been examined with the original entry and is
correct.
(2) Such proof may be given by an officer of the bank, or
in the case of the proof required under subsection (1) (d)
of this section, by the person who has performed the
examination, and may be given either orally or by
affidavit sworn before a commissioner for oaths or a
person authorized to take affidavit.

.
It was argued in J.B.N.D’s sa v. R., [1957] E.A. 627 (U), where a bank
inspector gave evidene as to the general result of the examination of banker’s
books in a trial for fraudulent false accounting and theft, that the evidence was not
admissible orally because neither the account, nor a copy of it, complying with the
Ordinance (Cap. 10, Laws of Uganda) was put in evidence. It was held, however,
under the circumstances, that the evidence was admissible under s. 63(g) U.E.O.
[s.68(1)(g) K.E.A.] inasmuch as the original consisted of numerous accounts or
571
documents which could not conveniently be examined in court, and the fact to be
proved was the general result, See P. 184, supra.

Inspection of banker’s books is provided for in s.179:-

179.(1) On the application of any party to proceedings a court may order that
such party be at liberty to inspect and take copies of any entries in a banker’s book
for any of the purposes of such proceedings.
An order made under this section may be made either with or without
summoning the bank or any other party, and shall be served on the
bank three clear days before it is to be obeyed, unless the court
otherwise directed.
For the purposes of subsection (1) of this section, “proceedings” includes
any proceedings in Tanzania or Uganda.
.

In certain instances, it may become necessary to investigate banker’s books for

investigation purposes when the commission of an offence is suspected. S. 180
applies:-

180.(1) Where it is proved on oath to a judge or magistrate that in fact, or

according to reasonable suspicion, the inspection of any banker’s book is necessary
or desirable for the purpose of any investigation into the commission of an offence,
the judge or magistrate may by warrant authorize a police officer or other person
named therein to investigate the account of any specified person in any banker'’
book, and such warrant shall be sufficient authority for the production of any such
banker'’ book as may be required for scrutiny by the officer or person named in the
572
warrant, and such officer or person may take copies of any relevant entry or matter
in such banker’s book.
(2) Any person who fails to produce any such banker’s book to the police or
other person executing a warrant issued under this section or to permit such officer
or person to scrutinize the book or to take coplies of any relevant entry or matter
therein shall be guilty of an offence and liable to imprisonment for a term not
exceeding one year or to a fine not exceeding two thousand shillings or to both
such imprisonment and fine.

The costs of the application are governed by s.181:-

181.(1) The costs of any application to a court under or for the purposes of this
Chapter of this Act, and the costs of anything done or to be done under an order of
a court made under or for the purposes of this Chapter, shall be in the discretion of
the court, which may order them, or any part thereof, to be paid to any party by the
bank where the costs were occasioned by any default or delay on the part of the
bank.
An order under subsection (1) of this section may be enforced as if the bank
was a party to the proceedings

573
 DETERMINATION OF CUSTOM AND CUSTOMARY LAW

By virtue of the Magistrate’s Court Act 1967, a District Magistrate’s Court

has and may exercise jurisdiction and powers in proceedings of a civil nature
where the proceedings concern a claim under customary law (s.10(1)(a).

The phrase “claim under customary law” is defined in s.2 as

574
 a claim concerning any of the following matters under African customary
Law –

land held under customary tenure;

marriage, divorce, maintenance or dowry;
seduction or pregnancy of an unmarried woman or girl,
enticement of or adultery with a married woman;
matters affecting status, and in particular the status of women, widows and
children, including guardianship, custody, adoption and legitimacy;
succession, both testate and intestate, and administration of estates, except as
regards property disposed of by a will made under a written law;”
..
Apart from the problems of the determination of customary law, there is the
problem of the determination of “personal” law when the law is not “African
Customary Law”, but the law of another sector or group of persons, and the
determination of “custom”, where the custom concerned does not fall within the
definitions of customary law found in s.2. These are matters of evidence, not
always easy to resolve, and there might be confusion between court decisions and
s.18 of the Act, which reads:-

18. A magistrate’s court may, if it thinks fit, call for and

hear evidence of the African customary law applicable to
any case before it. (emphasis added)

Definition of customary Law

Customary law includes rules established by usage or custom. These rules
must have the force of law and hence exclude social or moral customs. See
575
Cotran, “The Place and Future of Customary Law in East Africa”, in East
African Law Today, British Institute of International and Comparative Law
Commonwealth Series No.5, p.72.

In his article “Integration of Courts and Application of Customary Law

in Kenya”, 4 E.A.L.J. 14, Cotran (pp.17 – 18) discussed the definition of
customary law in Kenya. After first noting that both the Uganda and
Tanganyika legislation defines customary law in terms of its nature, viz. Ruels
of law established by custom and usage, and that Kenya had ventured a new
approach by defining customary law not in terms of its nature, but in the
contents of its subject matter (see s.2 above), he continued:-

“The major difficulty in this approach is to discover whether the above

list is meant to be exhaustive. Can a District Magistrate ‘s Court , which has
exclusive jurisdiction in proceedings concerning a “claim under customary
law” deal with any matter not covered in the above definition? Although it
can legitimately be argued that the list is exhaustive in view of the use of
‘means’ rather than ‘includes’, it is submitted that it could not possibly have
been the intention of the draftsman to exclude from the jurisdiction of district
magistrates matters not covered in the definition for the simple reason that this
would lead to absured results. The most significant omission from the
subjects listed is customary contract and tort. Although there is not in Kenya a
well-developed customary law relating to contracts, there is no doubt that
each customary law recognizes and enforces rights and obligations arising
from contract, e.g. pledges, sales, etc., especially amongst cattle people.
Again, in the field of tort, the definition only covers the sexual wrongs of
seduction, pregnancy, enticement and adultery. In effect all customary laws
576
recognise many other torts, whether they be wrongs against the person, e.g.
homicide and other bodily injuries, or against property, e.g. cattle trespass.
All these contractual and tortious rights and obligations were consistently
enforced by the African Courts prior to integration and it is submitted that the
position has not altered by virtue of the new definition. It is hardly likely that
the intention of the legislation was to abolish the application of the . Laws
relating to contracts and torts.
Is it also submitted that s.. (2) of the newly enacted Judicature Act,
1967[No. 16 of 1967] lends further support for this view. The section

[The High Court and all subordinate court shall be guided by African
customary laws in civil cases in which one or more of the parties is
subject to it or affected by it,so far as it is applicable and is not
repugnant to justice and morality or inconsistent with any written law,
and shall decide all such cases according to substantial justice without
undue regard to technicalities of procedure and without undue delay].

Provides that the High Court and all subordinate courts (which includes courts
of District Magistrates) shall be guided by African customary law in
civil case. There is no definition of customary law in the Judicature Act
and the definition contained in s.2 of the M.C.A. specifically applies to
that Act only. In the circumstances ‘customary law’ as used in s.3(2) of
the Judicature Act is not confined to the subjects specified in s.2 of the
MC.A.S. and must necessarily include all the subjects of customary law
recognized by the law of Kenya. This certainly includes the customary
law relating to contract and tort. By necessarily (sic) implication,
therefore, courts of District Magistrates must by virtue of s.3 (2) of the
577
 Judicature Act be guided by the customary law of contract and tort even
though it is excluded from the list of subjects in s.2 of the MCA.”
Also of interest is “The position of Customary Criminal Law in African
Countries “by Contran in East African Law and Social Change, African
Contemporary Monographs, N.6, . published by East African Publishing
House.

It has also been stressed that:-

“ the rules of customary law are not static and many changes due to various
factors and influences are taking place from time to time. Hence the
English definition which requires a custom to have existed ‘from time
immemorial’ has certainly no application to modern African customary
law. A certain rule of customary law can be recognised and enforced
even if it can be traced to a present generation and when I speak of
customary law, I mean the law as practised by the people and as applied
by the court.”

Contran, East African Law Today, supra, pp. 73 - 74

Evidence Act applicable in customary law cases:

As originally enacted, s.2 of the K.E.A. read:

2. This Act shall apply to all judicial proceedings in or before any court
other than a Khadi’s court, but not to affidavits presented to any court or
officer nor to proceedings before an arbitrator. (Further amended by
578
 Act No.10 of 1969 –
Regarding applicability
Of K.E.A to affidavits).

The first Schedule of Act No.17 of 1967 deleted the words “or an African
Court”; therefore the methods by which evidence of customary law is
presented is controlled by the Act. Note in passing that the I.E.A. was also
not applicable to proceedings in Khadi’s court: Hussein bin M’Nasar v.
Abdulla bin .. (1936), 17 K.K.R. (1) 95, 98.

The situation in Kenya is difference that in Tanzania, where customary

law prevails over the I.E.A. (and presumably the T.E.A.) in the Primary Courts
became of the of special rules of evidence for these courts by
Government Notice, Nyamgunda v. Kibwili, [1967] E.A. 212 (T) where the
ruling resulted in placing the burden of proof upon an alleged father of an
illegitimate child under Rules governing conduct of persons (G.N. 279/1963)
rather than upon the petitioner as in a civil case of adultery.

Proof of customary law

Kimani v. Gikand [1965](C.A.) considered in detail the problems

concerning the proof of customary law in courts in Kenya. The problem arose
from the application s.60 (1)(a), providing this courts shall take judicial notice
of

“ all written law, and all laws, rules and principles, written or unwritten,
having the force of law, whether in force or having such force as
579
 aforesaid before, at or after the commencement of this Act, in any part
of Kenya.”

The Court, at pp.737 – 738 said:-

“Customary law as a part of the law of Kenya. In this respect I would refer
to the Kenya (Jurisdiction of Courts and Pending proceedings)
regulations; 1963. Regulations 3 reads:

‘3.The jurisdiction of the Supreme Court and of subordinate courts shall be

exercised in conformity with the Order in Council, the existing Laws
and any written law for the time being in force in Kenya, and, subject
thereto and so far as the same shall not extend or apply, in conformity
with the substance of the common law, the doctrines of equity and the
statutes of general application in force in England on 12th August, 1897,
and with the powers vested in and according to the procedure and
practice observed by and before Court of Justice and Justices of the
Peace in England according to their respective jurisdiction of their
authorities at that date.

Provided that the said common law, doctrines of equity and statutes of general
application shall be in force in Kenya so far only as the circumstances
of Kenya and its inhabitants permit and subject to such qualifications as
local circumstances render necessary.’

And reg.4 states:

580
 ‘4. In all cases civil land criminal to which Africans are parties every
court:

shall be guided by African customary law so far as it is applicable and is

not repugnant to justice and morality or is inconsistent with the
Order in Council or any written law; and

shall decide all such cases according to substantial justice without

undue regard to technicalities or procedure and without undue
delay.’

[NOTE that the Kenya (Jurisdiction of Courts and Pending Proceedings)

Regulations, 1963 were repealed by s.11 of the Judicature Act (No. 16
of 1967) and substantially incorporated, with necessary modifications,
in s.3 of the Act; .. the reasoning of the Court insofar as it concerns
the Regulations as quoted remains valid.]

The court then quoted s (1)(a), K.E.A. AND subs. (2) and (3) and
continued:-

“The parties in this case are Africans and therefore the court will
take judicial notice of such African customary Laws as may be
applicable but subject to the provisions of reg. 4 as set out above.
The difficulty remains how are these customary laws to be
established before the courts? In some cases the court will be
able to take judicial notice of these customs without further proof
as for instance cases where the particular customary law is set out
581
 in a book or document of reference as provided in sub-s (2) above,
but usually in the High Court, or in a magistrate’s court, the
relevant customary law will, as a matter of practice and
convenience, have to be provided by witnesses called by the party
– lying on that particular customary law in support of his case.”
(emphasis added).

One of the difficulties of ascertaining the applicable customary law in a

particular case was noted in Benyamim Penie s/o Wawugu v.R. (1951), 18
E.A.C.A. 263, 269 in connection with the problem of opinions by assessors:-

“.. if Courts are to be precluded from acting on the opinions of

assessors in matters of native custom, whether still greater
difficulties may not arise. The infinite variety of opinion which
can be obtained from the members of practically any African
tribe on almost any tribal custom, might result in such a
bewildering and interminable conflict of evidence that any final
decision on the . Issue would be rendered nearly
impossible.”

The court in Kimari’s case summarized as follows:-

“To summarize the position, this is a case between Africans and

African customary law forms a part of the law of the land
applicable to the case. As a matter of necessity the customary
law must be accurately and definitely established. The court has
a wide discretion as to how this should be done at the onus to do
582
 so must be on the party who puts forward the customary law.
This might be done by reference to a book or document of
reference and would include a judicial decision but in view,
especially, of the present apparent lack in Kenya
of authoritative text books on the subject, or of any relevant case
law. This would in practice, usually mean that the party
propounding the customary law would have to call evidence to
prove that customary law, as he would prove the relevant facts of
his case.”

The possible confusion which may arise between the summary in this
case and s.18 of the Magistrate’s Courts Act 1967 (see p.299) would arise out
of the words “in it thinks fit”. Chief Justice’s Circular No.1 of 1968 on
Customary Law should be adhered to. The Chief Justice first drew the
attention of courts to s.3(2) of the Judicature Act (para.1) and continued:-

“2. Thus, customary Law is part of the Law of Kenya. It was, in

the past, administered by and large by African Courts whose
members were part of the general population of the areas served
by such courts. Customary law was known to them and was, in
most cases, taken for granted.

3.Conditions have now changed in two respects. First, the trial

magistrates do not always belong to the areas where their courts
are held. Secondly, appeals, instead of being disposed by higher
courts within the African Courts system, are heard in a unified
system of courts.
583
 4. This makes it necessary that, in cases involving customary law,
trial courts should place on record all the evidence on such law
that is offered by parties. In the event of an appeal, the record
will be useful to the parties as well as to the appellant courts.

5. In our system of law, parties to civil cases are, generally

speaking, free to conduct their cases as they like and it is for them
to decide what evidence to offer, Where, however, a case
involved customary law, the parties should first be asked if they
are in agreement as to custom. If they are, the court should
record the substance of this agreement.

6. If the parties are not in agreement, the Court should inform

them that it is for the party relying on the custom to prove it.
Such party should give evidence of the custom he asserts and
should be encouraged to call witnesses in support. The opposing
party should have every opportunity of giving evidence and
calling witnesses in support of his own point of view.

A magistrate’s duties in this respect are described, although not in

mandatory terms, in section 18 of the Magistrate’s Court Act
(quoted).”
As noted by the court in Kimani’s case there are few judicial decisions
on customary law in the various legal areas and among the numerous tribes of
Kenya. Where there are decisions, they may a be referred to. Certain cases
were, however, reported in the Court of Review Law Reports (the Court of
584
Review has now ceased to exist ) and there are a small number in the other
series of Reports.

An example of an effort to ascertain customary law in one subject

throughout Kenya is Volume 1 of the Restatement of African Law Project
sponsored by the School of Oriental and African Studies, University of
London, dealing with the law of marriage and divorce, by E. Contran. It is
clearly stated however (pp.xv – xvi) that

“It must be clearly understood that the restatements contained in

this volume are no more than guides to the customary law of
marriage and divorce. They have no statutory effect whatever.
As a guide to customary law, it is hoped that the courts of Kenya
will find them of assistance in ascertaining the customary law of
their area.”
Reference to this and similar works, as they appear, can provide a guide for
magistrates in defining clearly those areas of the law with which the case
Is concerned and the precise questions which must be answered by the parties
in putting forward their cases.

It is possible to argue that expert evidence of customary law does not

fall within the purview of s.48(1) K.E.A.; see p.121 supra, inasmuch as the
section mentions only “foreign law”, but the practice has certainly been
utilized without dissent; see Mwagiru v. Mumbi, [1967] E.A. 639, 642(K). If
witnesses are to be called to prove the law, there is certainly no logical
disqualification for a witness who is an “expert” in the subject owing to
experience.
585
 It is not intended here to cover the law relating to the function of
assessors in the ascertainment of the customary law, inasmuch as they are not
included in the procedure in magistrates’ courts. For a discussion, however,
see Benjamini Pande v. R., (1951), 18 E.A.C.A. 263 where the cases and
conflicting decisions on the subject are discussed in detail, although the case
was decided on other grounds.
One case, Ramji Dewji v. Ali bin Hassan,[1958] E.A. 297 (Z) at p.301
notes that:-

“It is quite true that where custom is relied upon it must be

pleaded, and unless so notorious as to be the subject of judicial
knowledge, it must be proved.”

And the normal rules of civil procedure as applied in magistrates’ courts are
applicable insofar as customary law is concerned, with the qualification found
in s. 3(2) of the Judicature Act: “ without undue regard to technicalities of
procedure ”

Proof of personal law:

There appears to be no case in East Africa which draws a clear distinction

between proof of personal law, and proof of customary law, or which sets
forth a clear definition of personal law. It is clear, however, from implication
if not stated outright, that personal law may be defined as limited to the law as
regards personal rights, obligations and actions as controlled by the religion of
the individual. For example, in Aycob v. A....[1968] E.A. 72, 79 (C.A), Spry,
586
J.A. in considering to what extent a person in Kenya can change his personal
law, quoted from A- G of Ceylone v. Reid [1965] 1 ALL E.R. 812 (P.C.):

“In their lordships’ view, in such countries there must be an

inherent right in the inhabitants domiciled there to change their
religion and personal law ”

The cases, such as Ayoob generally concern marriage and divorce, and are
therefore inevitably bound up with the statute law on these subjects in force at
the time. (See also Ayoob’s case in the High Court of Kenya, [1967] E.A. 416
(K).

While this clear distinction can be drawn between customary law and
personal law in the area of marriage and divorce – the latter marriage being
religious in nature and the former not – the methods of proof of personal law
are not dissimilar from proof of customary law. In the long and complex case
of Hakam Bibi v. Mistry Fateh Mohamed ,(1955), 28 K.L.R. 91, the situation
arose where the wife of a marriage between two muslims of the Hanafi Sect
sought divorce, and the parties raised issues of how that personal law ought to
be proved. The Court was invited to decide whether their personal religious
law ranked as part of the general law of Kenya of which the Court was
required to take judicial notice or as foreign law or as customary law requiring,
in the matrimonial sense, strict proof. The parties tendered treatises by learned
commentators on Mohammedan law and cited decisions of the Kenya and
Indian courts. The Court held, among others, that Muslim personal law, not
yet the subject of authorative judicial decision, has not the force of law in
Kenya and is not part of the general law of Kenya, and must be moved in such
587
manner as any other fact is proved under the provisions of s.60 I.E.A. Other
holdings:-

“(5) so soon as any fragment of personal law is defined by reason

of an authoritative judicial decision it becomes part of the general
law of (Kenya), although the cadre of that personal law still
remains out with the ordinary law of (Kenya). The Supreme
Court takes judicial notice of facets of personal law embodied in
decision of the Privy Council, the Court of appeal for Eastern
Africa and its own decisions and such factes need no longer be
proved and apply unless there can be established a sufficient
divergence between the interpretation of customary law by the
sect concerned in the decision and the sect under consideration.

Decision of the Indian Courts defining personal law, not on appeal to

the Privy Council, have not the force of law in nor form part of
the general law of Kenya. Mere citation of any such decisions
does not take the place of proof of personal law nor discharge the
onus of proof resting on the proponor nor does the Supreme
Court take judicial notice of any fact of customary law contained
in any such decision.

If an immigrant satisfies the Court his personal law ought to be

applied, he is nonetheless obliged to prove the relevant facts of
that customary law in a manner sufficient to enable the court,
without .. decide the dispute. If any fact of that law remains
unproved then the proponor may be held not to have succeeded
588
 nor is he in a position to submit that the court is compelled to take
judicial notice of and to seek out for itself the facts of that law as
if they were part of the general law of (Kenya).”

In discussing various authorities which personal law could proved in court, the
court said:- Kenya section substituted for I.E.A. section in [ ]

“The Act at s. [ ] contemplates all law as a fact.

Section [ ] chapter no fact of which the court will take
judicial notice need be proved. Section [60] lays down the facts
of which the court must take judicial notice and hence need not
be proved. These facts embrace “all laws or rules having the
notice of law in Kenya’ (statement that Mohammedn Law of
Hanafi of positive law in Kenya) That
personal law therefore is a fact which has to be proved. But I am
also notified that this sectarian law is not the law of any foreign
country so that proof is not competent under section [ ] nor is it
‘foreign law’ which may be proved [61]
provides that ‘ All facts of documents may be
proved by oral evidence. .. on that ‘oral
evidence must in all .. Provided that
the opinions of experts . Treatise ”
This proviso .. does not admit this
sort of evidence. treatise is
admissible lies on the it in my view,
the old practise of the Supreme Court of Kenya has a great deal to
commend it. That practise . An expert in the
589
 sectarian law was called to give
produced treatises and swore to their
authority and finally gave his own opinion of ..
Passages and his own opinion of custom as provided by sections
[51, 51 and 54]. This must be one of the simplest and most
commonsense methods of seizing any court of the weight and
authority of religious law. Another simple method would be to
make an admission of the agreed personal law under section [61].
The parties, conceivably, could make a joint submission to a
learned man; agree to accept his opinion as final and tender this
opinion as a joint admission to assist the court.”

Note that if the personal law is proved, and the question is whether the
marriage was celebrated under that law, it is not necessary that the full details
of the ceremony should be given; a statement of a witness that the marriage
was celebrated according to the customs of the sect to which the parties belong
is enough to raise a presumption that the marriage is valid, Abdulla bin
Masood v. Rashid bin Nassor, (1916), 1 Z.E.D. )

Evidence of other customs and rights.

Facts affecting the existence of a right or custom

13. Where the existence of any right or custom is in question, the following
facts are relevant-

590
 (a) any transaction by which the right or custom in question was created,
claimed, modified, recognized, asserted or denied, or which was
inconsistent with its existence;

(b) particular instances in which the right or custom was claimed,

recognized or exercised or in which its exercise was disputed.
.
“Right” means and includes both public and private rights which are
continuing , i.e. which may be interrupted without necessarily being destroyed,
and comprehends every right known to law.

“Transaction”, in the ordinary sense of the word, means a business or

dealing which is carried on or transacted between two or more persons.

“claimed” – assorted to the knowledge of and in the presence of the

person whose right will be affected by the establishment of the claim.

“Recognized” – judicial recognition of a custom is relevant under this

section as an instance of the custom being recognized, but it does not have the
same importance as a clear-out instance of a custom recognized by the parties
themselves.

“Custom” – a rule which is recognized in a particular family or district

and which has, usually from long usage, obtained the forces of a law.

RATANLALA at p.33 notes the principle behind this section as

follows:-
591
 “The cases this section is intended to meet are those in which the
right or custom in question is regarded as capable of surviving
repeated instances of its assertion and denial, where transactions
may be supposed to have gone on modifying, asserting, denying,
creating, recognizing or being inconsistent with its existence,
leaving it, after all that has been given in evidence, fair matter for
judicial consideration, as to whether the Court should or should
not decree it.”

In other words, the facts mentioned in the section are relevant where the
existence of the custom or right is in question, i.e. when one party claims that
the right or custom exists, the other party denies that it exists, and the court
must make a decision as to whether, in fact, it does exist or does not exist.

Opinion relating to customs and rights

51. (1) When the Court has to form an opinion as to the existence of any
general custom or right, the opinions as to the existence of such custom or
right of persons who would be likely to know of its existence if it existed
are admissible.

(2) For the purposes of subsection (1) of this section the expression
“general customs or right” includes customs or rights common to any
considerable class of persons.

592
 The term “public rights” has not been used in this section, but SARKAR,
p.526, notes that there was no intention in the I.E.A. from which the section s
taken, to make any distinction between the words “public” and “general”;
therefore “general rights” and “public rights” are the same, as are “public
customs” and “general customs”.

A “public right” is a right which is held in common by all members of

the public, such as a highway or ferry. Note R.v. Meghji Hirji Shah, (1932),
14 K.L.R. 158 as an example, a charge of carrying on an offensive trade which
annoys “a considerable number of persons in the exercise of their common
rights as user of the public road.” Other cases involving public user: Vaz v.
Rutafufura, [1967] E.A. 686 (U); Makumbi v. Puran Singh Ghana, [1962] E.A.
331 (U). These cases are illustrative, but do not involve evidence problems.

A “private right” is one which affects a considerable portion of a

community, such as the boundary of a village.

Note that evidence of opinion on private rights has been excluded not
only from s.51, but also from s.33(d).

If the maker of the statement tendered into evidence is dead, incapable

of giving evidence, etc. as required by s.33, introducing paragraph, his opinion
is admissible if the requirements of subs. (1) are met:-

when the statement gives the opinion of any such person as to the
existence of any public right or custom or matter of public or general
593
 interest, of the existence of which, if it existed, he would have been
likely to be aware, and when such statement was made before any
controversy as to such right, custom or matter had arisen.

.
The sections are similar in form and intent, but under s.33(d), the statement
tendered in evidence must have been made before the controversy arose, and
not just before institution of the suit. This is a factor having direct bearing on
the reliability of the statement.

The opinion expressed under the sections that the witness speak of facts,
if the witness is present in court (s.51) and has lived in the area or community
in question, he can oftimes cite facts to support his opinions; instances where
certain acts have been done which would support his opinion as to the
existence of the custom.

In one instance at least, evidence as to a custom around the turn of the

century was admitted by consent of the parties, even though the court
expressed doubt as to whether the evidence was strictly admissible either
under s.46 U.E.A. (s.51) or s.43 (opinions of experts); see Daudi Ndibarema v.
Enganzi of Ankole, [1959] E.A. 552(U) at p.555.

In Ngambo Estate v. Sikh Saw Mills [1957] E.A. 537 (C.A) at pp.539 –
540 there was both direct and opinion evidence of public right of way with
long and uninterrupted user:-

594
“The Rev. H.A. Smith testified that he had known the road from the rice
market through Bulwa Estate to Korogwe for the past twelve years, that the
mission relied on the road and that he had never been asked not to use the
road Mr Humphrises, District Commissioner, Korogwe from 1953 and Mr.
Cawthra, District Commissioner for two years before that, both expressed the
opinion that this was a public right of way. I consider such evidence to be
admissible under s.48 of the Indian Evidence Act and I further consider that
the court ought to attach considerable weight to such opinions in matters of
this kind.”

595