NAME………………………...

SSENYONJO MICHEAL
REG NO………………………KS19B11/201
COURSE UNIT………………EVIDENCE LAW 1
TUTOR………………………..SENIOR COUNSEL BRIAN KAJUBI
LECTURER…………………..SENIOR COUNSEL ROBERT RUTARO
TABLE OF STATUTES

Evidence act cap 6

TABLE OF CASES

Karuma s/o of Kanui v Uganda 1955 vol 22 EACA 364.

R v Kurji vol 7 EACA 58.
Makindi v R (1961) EA 327.
Lobo v R Vol 10 KLR 555.
R v Clifford Brabi Costa vol 44 EACA 80.
Uganda v Kabandize (1982) HCB 93.
Uganda v Richard Baguma (1988-90) HCB 74.
Uganda v Disman Sabuni 1981 Hcb 1.
Mwami s/o of njoroge v R (1954) 21 EACA 377.
Lonzo s/o of Kanyanaya v porsotom bros 1993 16 KLR 44.
Swami v Emperor (1939) vol 1396 All ER.
Jamada v Muhammed 1961 EA 616.
Uganda v kalawudio wamala unreported case no 442/ 1996.
Nayinda v R (1959) EA 686.
The general principle of the law of evidence on relevancy and admissibility is that once evidence
is admissible, the method of procurement does not matter whether stolen.The manner of getting
the evidence is immaterial.
Evidence may not be rejected on the ground that if was illegally obtained for example in the case
of murder using a gun if the police searches and Vandalized the house of the accused to get the
gun and finally recovered the accused may Not plead right of privacy or other breaches of rights.
In Karuma S/o of Kanui V Uganda 1 In this case a search was conducted by the police without a
search warrant. Evidence was subsequently obtained illegally. In the process of the search some
incriminating evidence was recovered from the appellant and tendered in evidence. On appeal
the appellant argued that such evidence should not have admitted because it was illegally
obtained.
On appeal the Privy Council held that the method of obtaining evidence is irrelevant what is
important is that evidence was obtained.

Admissibility and Relevance of evidence is legally referred to as res gestae which is used to
connote acts, declaration and circumstances constituting or explaining a fact or transaction in
issue.
It’s therefore assumed that there is a transaction in issue or principal fact. What constitute res
gestae or those other facts that are in relationship with fact in issue in the case of RV Kurji2 In
this case the accused stabbed the deceased holding a knife. Court held that the two circumstances
were so interconnected that the wounding of the deceased’s brother must be regarded as part of
res gestae, at the trial of the accused for the murder of the deceased and the evidence of it was
admissible.

Rules and principles that underpin evidence law in Uganda basing on the statutory
provisions and decided cases.

Facts which form part of the same transaction.

The evidence act is to effect that facts though not in issue, which are so connected with the fact
in issue as to form part of the same transaction, are relevant whether they accused at the same
time and place or at different times and places 3. Here the principle fact comes about as a result of
a transaction which can be explained by secondary facts and this is what is called res gestae,

1
Karuma s/o of kanui v Uganda 1955 vol EACA 364
2
R V Kurji 7 EACA 58
3
Evidence act cap 6, S 5.
under section 5 facts forming the same transaction will only be relevant for purposes of
explaining the fact in issue. This section is applicable in both criminal and civil cases in the case
of Rv Kurji 4.
The accused had stabled the brother of the deceased and uttered threats against the deceased
immediately afterwards, he was seen in the go down of immediate shop standing over the
deceased holding a dagger. It was held that the two circumstances were so interconnected that
the wounding or stabbing of the res gestae in the trial of the accused in the murder of the
deceased. Further that this evidence was admissible even though it tendered to lead to the
commission of another offence.

Facts which are the occasion, cause or effect of the facts in issue.
This section is to the effect that facts which are the occasion cause or effect immediately or
otherwise of relevant facts or facts in issue or which constitute the state of things, under which
they happened or which they afforded an opportunity for their occurrence are relevant5
In R v Clifford Brabi Casta6 The appellant was charged with obtaining a bribe. The prosecution
adduced evidence to show that the appellant had engaged in previous acts of bribery. The major
issue was whether or not evidence of previous acts of bribery was relevant. It was held among
others that the evidence of previous acts of bribery was admissible because it showed the state of
things explaining the fact in issue. The case indicated that previous conspiracy could be taken
into account to establish the occurance of things. The acts talked talked about in section 6 should
have proximity in terms of time immediately before or after.

Motive preparation, previous or subsequent conduct as part of res gestae.

All these are dealt with under section 7 of the evidence act7. motive is what actually influences
a person to ac in particular way. It may be fear of the desire which brings about a particular
activity. If you want to establish motive the court may look at the mental state usually derived
from the circumstances surrounding the fact in issue for example through ones utterances. In
Makaidi v R8 evidence of previous beating was admitted tending to show motive for revenge it
showed ill will, it amounted to previous conduct and it showed causation of commission of the
offence.

Previous conduct (this is conduct before the actual fact is issue is committed) it may as well
include motive to commit on offence but it could mean the ways of bringing a particular fact in
issue and may involve preparation of opportunity or bringing about the acts complained of. It
includes previous acts to commit the offence and may include declarations of intent or threats.

4
Ibid.n1
5
Evidence act cap 6, S 6.
6
R v Clifford Brabi Casta Vol 14 EACA 80.
7
Evidence act cap 6, S 7.
8
Makindi v R (1961) EA 327.
In Lobo v R9 it was held among other that complainants of rape and the like offences if made at
the first reasonable opportunity after the offence had been committed are admissible, this is
because in such a state they are indicative of the complaints conduct state of mind and therefore
the complaints conduct and therefore form part of res gestatae.

Subsequent Conduct
This may explain the occurrence of the event that is to say what the person does, the way he
behaves soon after the crime and what state of mind he is in. It may be used to implicate him in
the commission of the crime. For instance certain changes in life style may be explained by
illegal acquisition of wealth. In the case of Uganda v Kabandize10 The accused and the deceased
exchanged harsh words and called each other bad words and nearly fought the accused used a
short spear and stabbed the deceased and then ran to the swamp nearby from where he was
arrested while walking around the swamp. Court held that the conduct of the accused of
running away immediately after wards was that of guild mind.

Explanatory and Introductory Facts

Section 8 of the evidence act11 provides that facts necessary to explain or introduce a fact in
issue or relevant fact, or which support or rebut on inference suggested by a fact in issue or
relevant fact as which establish the identify of anything or person whose identity is relevant or
fix the time or place at which any fact is in issue or relevant fact happened or which show the
relation of parties by whom any such fact was transacted, are relevant in so far as they are
necessary for the purpose. Section 8 introduces the following specific elements as relevant.

(a) Facts that explain or introduce a fact in issue

(b) Facts which support or rebut on inference
(c) Facts which establish identity where identity is in issue
(d) Facts that fix time and place at which the relevant issue may have happened
(e) Facts that show a relationship of the parties
In the case of Uganda v Richard Baguma12 The accused was indicted on account of robbery and
kidnapping with intent to murder. It was alleged that on the day the deceased died. The accused
had picked him from his house and taken him away and his bullet ridden body was found the
following day. It was held that where evidence is circumstantial in order to justify an inference
of guilt. Facts must be incompatible with innocence of the accused and incapable of explanation
upon any other hypothesis than that of guilt.

9
Lobo v R Vol 10 KLR 555.
10
Uganda v Kabandize (1982) HCB 93.
11
Evidence act cap 6.
12
Uganda v Richard Baguma (1988-90) HCB 74.
Facts which show common Intention
Section 9 of the evidence Act 13 provides that where there is a reasonable ground to believe that
two or more persons have conspired together commit an offence or an actionable wrong,
anything sad, done or written by anyone of those persons in reference to their common intention
after the time when that intention was first entertained by anyone of those persons. Is a relevant
fact as against each of the persons believed to be conspiring as well as for the persons of proving
the existence of the conspiracy and for the purposes of proving the existence of the conspiracy
and for the purpose of showing that any such person was party to it. In Barikadde v Uganda14 it
was held that in order to prove common intention it’s not necessary to prove a prior agreement
between the accused. It was sufficient if their intention could be inferred from their actions,
Section 9 is in line with of the penal codact 15 under which parties or a conspiracy are sold to be
responsible to the actions of each other

Contradictory or Inconsistent Facts

Facts not otherwise relevant are relevant if they are.
(a) Inconsistent with any fact in issue or relevant facts.
(b) If by themselves or in connection with other facts they make the existence or nonexistence of
any fact in issue or relevant fact highly probable or improbable section 10 introduces a negative
element in the fact which negate or affect improbability of any fact in issue are relevant for
example the defence of alibi is inconsistent with allegation that the person who committed the
offence where the offence requires physical preference.In Uganda v Disman Sabuni16 The
accused was indicted with robbery. He claimed that at the relevant time he was out of the country
thereby putting up a defence of alibi. He was convicted on the grounds inter alia that he had
failed to prove his alibi and on appeal the court held its established law in Uganda that when
an accused person sets up a defence of alibi the accused doesn’t assume the responsibility of
proving the alibi and thus was acquitted.

Facts which show the state of mind or bodily feelings.

A person may bring about particular acts or may commit a particular crime because of the state
of mind this is provided for in section 13 of the evidence act, The mental element in crime, tort
and other legal conceptions often becomes a relevant fact in issue. In certain crimes for example
it may be necessary to prove men’s rea while in certain torts it may be necessary to prove
knowledge or negligence. Section 13 provide that facts showing the existence of any state of
mind or bodily feeling are relevant when the existence of any such state of mind or body or
bodily feelings is ins issue or relevant.

13
Ibid n9.
14
Barikadde v Uganda (1986) HCB 6.
15
Penal code act cap 120, S 20.
16
Uganda v Disman Sabuni 1981[HCB]1.
In Kiwanuka & Anor V R17. The plaintiff was convicted on two counts of publishing defamatory
material concerning a chief. one of the issue was whether or not these two acted maliciously the
court held that in the case of criminal libel evidence of suppression of matters favourable to the
person libeled was admissible to show malice on the part of the accused that is to say it shows
the state of mind of the accused had omitted the good things about the chief.

However the general rule that all relevant evidence is admissible is subject of numerous
exceptions because evidence Act Cap 6 of laws of Uganda undoubtedly excludes evidence of
many matters which anyone in his own daily affairs of moment would regard as important
in coming to a decision of explained below.

Hearsay evidence
Evidence act is to the effect that oral evidence must in all case be direct that is to say if it refers
to a fact which was seen by a witness 18. It must be that person who saw it but not someone who
was told. If it refers to a fact which could be heard then it must be evidence of a witness who
says he heard it. If it refers to a fact which could be perceived by any other sense or in any other
manner then it must be by the witness who perceived the fact. If it refers to an opinion or on the
ground upon which the opinion was held then it must be evidence of that person who actually
holds the opinion and those grounds. Its therefore clear from S.59 of the evidence Act that courts
only admit direct evidence and exclusion whatever is left out is hearsay which evidence would
be helpful in coming to justice, since third party’s evidence is not recognized and might be the
one with admissible evidence.

Under section 21 of the evidence act oral admissions as to the content of a document are not
relevant, unless the party proposing to prove them show that he or she is entitled to give
secondary evidence of the contents of document under rules hereafter contained or unless the
document produced in question.

A confession was defined in the case of Swami V Emperor19as that statement which accused
person makes for the purpose of admitting the full guilt of the alleged offence under section 24
of the evidence act. A confession made by an accused person is irrelevant if the making of the
confession appears to the court, having regard to the state of mind of the accused person and to
all the circumstances, to have been caused by a violence, force, threat, inducement or promise
calculated in the opinion of the court of cause an untrue confession is made.
In Mwangi s/o Njoronge20 the words “you better think whether you are going to tell me or not”
were held to amount to a threat.

17
Kiwanuka & Anor v R.
18
Evidence act cap 6, S 59.
19
Swami v Emperor (1939) vol 1396 All ER .
20
Mwangi s/o Njoronge v R (1954) 21 EACA 377.
Exclusion of oral evidence by documentary evidence (parole evidence rule) section 91 provides
for the exclusion of oral evidence to prove or vary contents of a document. The issue that
normally arises in whether oral evidence can be admitted by court to prove the terms contained
in the document. The general principle is that where there is a written document, any other
evidence to substitute on vary the documents terms or contradict them is not admissible. This
principle mainly applies in two situations
(i) Contracts reduced in writing in such situation to the terms of the contract or document itself,
therefore no oral evidence to vary or contradict these terms is admissible. This principle was laid
down in Lonzo s/o Kanyanaya V Porshotam Bros21.It was held inter alia when the terms of a
contract have been reduced to a document, no evidence is receivable as to the nature of the
contract except the document its self.

(ii) The contracts that must be in writing. The second situation is with regard to transaction
which are required by law to be in writing for instance under the sale of Goods Act, under the
money Act it’s a requirement legal that contracts must be in writing.
In the case of Jamada V Noor Muhammed22case dealt with a money lending contract and it was
held among others that a money lending contract must be in writing.

In civil cases no admission is relevant if it’s made either upon express condition that evidence of
it’s not to be given or in circumstances from which the court can infer that the parties agreed
together that evidence should not be given. Section 22 of the evidence act.

PART B
section 24 of the evidence act cap 6 is to effect that a confession will be rendered irrelevant and
inadmissible if the making of the confession appears to the court having regard to the state of
mind of accused person and to all other circumstances to have been caused by any violence
force, threat, inducement, promise calculated in the opinion of the court to cause untrue
confession to be made. In other words before a confession is admitted in evidence it must be
proved to have been made voluntarily in case of Uganda v Kalawudio wamala23 the accused
was indicted for the offence of rape. The prosecution sought to tender an exculpatory statement
made by the accused person after the accused had been in custody beyond mandatory 48 hours.
The high court declined to admit the statement because it was made after the accused had been in
custody for 10 days which exceeded the statutory 48 hours, secondly the statement was recorded
contrary to the rules in the Evidence ( statement to police officers) Rules 24 The court noted that
while the accused could speak the luganda dialect, the police officer recorded the confession in
English. The court stated that the conduct of the police officer was contrary to this rule.

21
Lonzo s/o Kanyanaya v porshotam Bros(1993)16 KLR 44.
22
Jamada v Noor Muhammed 1961 E.A 616
23
Uganda v kalawudio wamala (unreported) case number 442/1996 of 6 November
24
These Rules were declared annulled by repeal of s24 of the evidence act
The exception to section 24 of the evidence act cap 6 is found in section 26 of the evidence act.
Under section 26 confessions otherwise relevant do not become irrelevant because of promise of
secrecy, deception, drunkness or failure to be warned that such a person was not bound to make a
confession.
It would appear from wording of section 26 of the evidence act that it erodes the good intention
of section 24 on voluntariness. However courts have the discretion to determine what confession
obtained through deception or the tricks should be administered or left out in case of Nayinda v
R25 court noted that there is nothing in the section which negatives the discretion of judges to
refer to admit a statement which in thought was not made voluntarily

In conclusion their should be an amendment of the evidence act not only to compel the
exculsion of illegally or improperly obtained evidence in the form of information,
statements, and confessions but also punish the officers provided that they do not render a
trial unfair or are detrimental to the administration of justice. Apart from confession one
of the problems exacerbating the admission of evidence obtained through human rights
violation is lack of a law to subject this evidence to a trial with in a trial to establish
whether or not it was obtained voluntarily. The courts ability to develop the common law
will enable them to subject all issues of admissibility of evidence to a trial with in a trial.

25
Nayinda v R (1959) EA 686
 BIBLIOGRAPHY

Duland, confession in East Africa

A.L Good Hart,The scope of the rule against hearsay 72 LQR