Law of Evidence 2 Notes On Witnesses OATH & AFFIRMATION IN KENYA (Law of Evidence Ii) Chege Kibathi & Co. Advocates LLP

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O AT H & A F F I R M AT I O N I N
K E N YA ( L A W O F E V I D E N C E I I )
27 APR, 2013 | GENERAL (HT TPS: // WWW.CKADVOCATES .CO.KE/CATEGORY/GENERAL / )
The general rule is that all witnesses give their evidence on oath or on solemn af rmation. The
oath is supposed to be administered or the af rmation done in a way that the witness declares
to be binding. In providing for oath and af rmation the law contemplates 2 categories of
people; Believers or religious persons and Atheists.
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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 faithful’s to swear) if they object they are af rmed and with af rmation 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 af rmation. 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 af rmed.
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 af rmed.
The evidence of children of tender years presents dif culties in the realm of oath and
af rmation. The evidence Act does not de ne who a child of tender years is but the case of
Kibageni de nes who a child of tender years is; the case of Kibageni was in regard to
compellability. When a court is faced with a child of tender years, it undertakes a preliminary
enquiry to nd out whether the child understands the nature of an oath. The court will nd
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 nd 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 af rmed. It is imperative that the examination into the child’s understanding
is undertaken at the beginning of the trial. It is not suf cient 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 satis ed 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 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 suf ciently appreciates the solemnity of the occasion and is suf ciently
responsible to understand that the taking of an oath involves telling the truth. The judge need
not be satis ed 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 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 speci c 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 rm 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 xexamination in chief. If you 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 of cers 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 de nes 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 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 con rm 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 rst 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 testi es 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 eld. This is provided
for in Section 167(4). There is a situation contemplated at Section 168 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
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
con ned 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 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 of cer or professional witnesses, police
of cers 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

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 con ned 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.
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.
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Law of Evidence 2 Notes On Witnesses OATH & AFFIRMATION IN KENYA (Law of Evidence Ii) Chege Kibathi & Co. Advocates LLP

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6/13/2020 Chege Kibathi & Co.

WHAT TYPE OF QUESTIONS CAN YOU ASK IN EXAMINATION IN CHIEF

WHAT IS A LEADING QUESTION

WHAT HAPPENS WHEN A WITNESS FORGETS TO TESTIFY ON WHAT HE WAS CALLED TO

HOW MUCH VALUE SHOULD BE ATTACHED TO THE EVIDENCE OF A HOSTILE WITNESS

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

(HT TPS: // WWW.CKADVOCATES .CO.KE)

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