WINFRED WANJIRU KANYI

1032475

LAW OF EVIDENCE

CLS
SIMILAR FACTS EVIDENCE.

Similar facts evidence is evidence of previous or subsequent acts which are similar to the fats in
issue or relevant facts.

Admission of similar facts evidence is the exception to the general rule and will only be admitted
when it has a strong probative value.

Scenarios where similar facts evidence maybe used include:

1. Where there is absence of a casual connection with the offence.

2. Admission of causation but avoidance of guilt by plea of absence of intention
3. Plea of automatism that is one did not know what he was doing among other things
4. Lack of knowledge
5. Identification.

Similar facts evidence to show the doer of the act

It would be erroneous to assume that the ambit of the doctrine of similar facts evidence is
restricted to the provisions of section 15 of the Evidence Act.

Similar facts evidence may be admitted under section 9 of the act to show the identity of the
doer of the Act.

For example if Y did acts A B C and an unknown person did a similar act D , then it would
be presumed that Y was the doer of the Act .This is when act D is done with such frequency
or peculiarity , that there was probably only one person capable of doing the act complained
of at that time and place

Paul Ekai v Republic

 Paul was charged with the murder of Joy a conservationist .His defence was an alibi .Ekai
said on the night of the murder, he had been living with his grandmother in Isiolo.Evidence
showed on the material night one of the large trunks kept in the deceased house including
the cash box had been opened by a crow bar and the intruder escaped through an animal
closure. The prosecution also gave evidence that three weeks earlier something similr had
happened .When Paul was apprehended after the murder ,he was found in possession of
clothes that were stolen in the camp.

The court held that the evidence was admissible.

FACTS WHICH ESTABLISH IDENTITY WHERE IDENTITY IS IN ISSUE.

Karanja V Republic
The appellant was convicted of aggravated robbery; he was identified by the victim at an
identification parade. He raised the defense of alibi and argued that evidence of identification
was unsafe or unsustainable. Court held that subject to certain exceptions, it is very vital that a
fact may be proved by the testimony of a single witness but this rule does not lessen the need for
testing with the greatest of care. The evidence of a single witness regarding identification
especially where it is known that the conditions favoring identification we difficult. In such a
case, what is needed is other corroborating evidence whether direct or circumstantial.

Kibuthu and others V R

The appellant was accused of having committed aggravated robbery and was convicted.
Evidence showed that police had used a track dog to lead them to the accused on the scene of the
robbery. He appealed against the decision basing that the identification was unsafe. Court hled
that the accused had not been recognised by the complainant and none of the stolen property had
been traced back and it could therefore be unsafe to rely solely on the fact that police track dog
led the police where the accused was that night especially in absence of expert evidence of what
the track dog could or could not do.
 Njiru V Republic
The appellant were charged with aggravated robbery. Evidence adduced was that the
complainant who claimed to have seen them cut off power supply. There was also voice
identification by one of them and the complainant also calmed that the robbers had spoken to
them and he could register the appellant's voice. An identification parade had been carried out
and on a plea, the court held;
1.      Where an identification parade is to be carried out, the requirement in respect to the members
of the parade is subject; they should be of eth same age, height appearance, class of life as the
suspect and not that they should be identical. in respect of eth first accused, there was no need to
find people with similar swellings as the first accused had on his side of the face although if it
was possible it would have a commendable thing to do.
2.      Where a witness says that apart from visual identification of the suspect he has also been
identified by voice, the witness should be allowed to confirm that. There was nothing
objectionable in a witness requesting for parade members to shout for him, so that he could
satisfy himself that he does not make nay mistake identifying the particular suspect.

HEARSAY EVIDENCE

Hearsay evidence refers to what is said or written by persons other than the person giving
testimony.

Pius Arap Maina v Republic

The appellant was convicted for the offence of attempted defilement of a girl aged 17 years
contrary to the sexual offences Act no 3 of 2006.He was sentenced to the 10 years of
imprisonment .The court given by the the plaintiff was hearsay and allowed for appeal.

Hiram Mwangi v Republic

The appellant was charged with the offence of defilement contrary to the Sexual Offences
Act.The child was four years old.The accused pleaded guilty and stated that there was no real
evidence to convict him since the child could not testify.The court relied on the mother’s
testimony.The appellant claimed it was hearsay.
The court held that in that particular case hearsay was admissible and the conviction was
upheld and the appeal quashed.

CIRCUMSTANTIAL EVIDENCE

These are facts that are not itself facts in issue but can be used to illuminate the facts in
issue.

Republic v Michael Muriuki

The accused Michael was charged with murder contrary to section 203 of the penal code.He
murderd his wife.The accused put forward an alibi in his defence.There was no eye witness
hence the prosecution was relying on circumstantial evidence.The court held that the
circumstantial evidence was admissible and hence the accused was found guilty.

Joan Chebichi Sawe v Republic

The appellant was married to the deceased and had one son.The couple was not able to get
other children hence the deceased wanted to marry a second wife and the appellant was not
happy.One night there was a fire in their matrimonial home and the deceased died in the
fire.The prosection relied on circumstancial evidence since there were no witnesses and the
court held that the evidence was admissible hence the appellants conviction was dismissed.

RES GESTAE

Under English Common Law of Evidence ,acts, declarations and circumstance

accompanying or explaining a fact or transaction in issue is said to form part of the res
gestae and is admissible.

Adrianno Oyugi v Republic

Adriano the appellant was married tp Beatrice and had three children namely Brenda,Leroy
and Theresa.At the time,the marriage was shaky.Beatrice was at her frriend’s house when
Oyugi arrived and it was alleged he was drunk.He forcefully told Beatrice to go home with
her and Oyugi told a neighbour Philemon that he if he had carried an arrow he waould have
shout him and Philemon thought that Oyugi had a panga in his leather jacket.

The appellant cut his daughters neck who he loved the most and eventually she died.He
pleaded guilty.The court held that on previous occasions the appellant was violent and his
acts were contemporaneous to the fact in issue

Mehtab Shah v Republic

The appellant was charged with robbery with violence.He was also charged with handling
stolen Property.He had been previously convicted with the same offence of robbery.

The court relied on res gestae and he was found guilty.

TESTIMONY

An oral statement by a witness made under oath in an open court of law to serve as evidence
of the truth of what he or she says.

Sahali Omar v Republic.

The appellant was convicted for defiling two young girls contrary to section8(3) of the
Sexual Offences Act.He pleaded not guilty of the offence.Th e counsel argued that the
evidence presented had not met the threshold of proof beyond reasonable doubt amd the
testimonies given were contradicting.

The court held that the error made by the defiled girls was a minor issue and did notoutweigh
the case at hand.The appellant was found guilty and the conviction upheld.

Reuben Mulatia v Republic

The appellant was charged with the offences of defilement contrary to Section 8(1) (2) of the
Sexual Offences Act .He defiled a 4 year old girl.The appellant argued that the testimonies
given were unsworn hence were not admissible.The court held that the testimonies were
corroborative and upheld the conviction and dismissed the appeal.

DOCUMENTARY EVIDENCE.

Include documents presented for inspection to be items of real evidence or primary evience.

Faith Mumbua v Patel Derika

The appellant sued the respondent for recovery of damages arising from an accident.The
appellant alleged that as a result of the accident she suffered head injury with loss of
conscience ,blunt pelvic trauma with a fractured pelvic ring.She claimed that she was
carjacked.The court held doucments in support of the carjack do not pass the credibility test
hence they were inadmissible.

ELECTRONIC EVIDENCE

Electronic evidence is information stored in a digital form in a digital device that a party
may present in a court.

It may be determined by a court if its admissible,relevant and authentic.

Republic v Barisa Wayu

Mr Kirui counsel for the accused objected the production of a CD produced by a CCTV
footage filmed at Karama Lodge and claimed it was inadmissible.

Mr Ondari,state counsel argued that the electronic evidence was admissible according to the
Evidence Act.The court held that for electronic evidence to be admissible,it must be
accompanied by a certificate and in this case it was not so it was held that the evidence was
inadmissible.
REAL EVIDENCE

Refers to material objects or exhibits which are produced for the courts inspection.The
objects produced in court may range from mere objects to human beings but this does not
include documentary evidence.It may also refer to a thing the existence or characteristics of
which are relevant and material to a case.

Dominic Sibi Peter v Republic

The appellant was charged with two offences which are defilement contrary to Section 8(1)
(3) of the Sexual Offences Act and committing an indecent act of a child.He was convicted
for the indecent act and pleaded not guilty.

The court held that there was an indecent act according to the Sexual Offences Act and the
corroborating evidence given was sufficient and cogent.The accused was convicted and his
appeal dismissed.
REFERENCES

www.kenyalawresources.org

Kenya Law Reports

Law of evidence in Kenya