CORROBORATION

1.0 OVERVIEW
Corroboration evidence is one area of evidence that has got a lot of intricacies. Taking into
considerations such challenges and complexities we have covered the meaning of corroboration,
how the judges and books have defined it, the essentials of corroboration: what qualify
something to be a corroborating evidence, what evidence can be used to corroborate, two types
of corroboration, application of corroboration in three instances, the relevance of corroboration
now in law; is it still necessary, advent of technology and scientific evidence and the criminal
amendment bill, constitutional issues and corroboration evidence; is it a bar to justice process?

2.0 INTRODUCTION
Corroboration is not a recent inclusion in evidence, it has been in existence since antiquity
making it one of the oldest evidence laws but the most complicated. As a general rule there is no
requirement that evidence must be corroborated for someone to be interdicted to have committed
or omitted ascertain act. The truth is that such evidence are reliable enough to proceed since they
are credible, however, this is done to achieve fair trial and accurate judgment. There are however
some statutes which require corroboration and where the jury need to be warned, these make
exceptional cases. Even though the general rule state that, there is propensity to acquittals when
corroboration is lacking.

2.1 Literal Meaning

Corroboration as a word means to support or confirm or to strengthen. It is which rule of
evidence which states that one witness is insufficient, derived from Latin maxim testisunus
testis nullus (one witness is no witness.) To strengthen (an opinion, statement, argument, etc.)
by concurrent or agreeing statements or evidence; to make more sure or certain; to support,
confirm: said a. of a person – Oxford Dictionary.
Merriam-Webster Online: corroboration is to help prove by providing information or evidence.
2.2 Legal and contextual meaning
The legal meaning as defined by books and cases is where the whole challenges emerge.
According to J.D Heydon1, corroboration is evidence tending to confirm some fact of which
other evidence is given.

G.D Nokes2, corroboration is confirmatory or supporting evidence on a matter on which other

evidence is adduced. Despite the two definitions one can still not make a conclusion on what
corroboration is or entail. For that reason we look into the cases.

The Rex v Baskerville3 “we hold that evidence in corroboration must be independent testimony
which affects the accused by connecting him or tending to connect him with the crime. In other
words, it must be evidence which implicates him with the crime, that is, which confirms in some
material particular not only the evidence that the crime has been committed but also that the
prisoner committed it.” Lord Reading C.J. The above was reiterated in the case of Mukungu v
Republic (2003) A.H.L.R (KeCA 2003).

“The word corroboration by itself means no more than evidence tending to confirm other. In
my opinion, evidence which is (a) Admissible and (b) Relevant to evidence requiring
corroboration and, if believed, confirming it in required particulars, is capable of being
corroboration of that evidence and, when believed, is in fact such corroboration.” Lord
Hailsham.4

From the cases and books we can confirm that corroboration is, a credible (relevant and
admissible) evidence from an independent source which tends to support or confirm a credible
(relevant and admissible) evidence that has been given or is yet to be given before a court and
that it implicates the defendant and not to confirm the commission of a certain act. The last two
form the essential facts or the facta probanda that corroboration must prove (that the accused did
it and that the crime was committed)

1
1984 Evidence: cases and materials at page 67
2
Cockles cases and statutes on evidence at page 382
3
1916 2KB at page 658
4
D.P.P v Kilbourne
The definition above confines corroboration to certain essentials and this brings about the
complexity in issue of corroboration. The judges have struggled to conform to all the essentials
and for some omission or another the cases have been appealed successfully.

3.0 ESSENTIALS OF CORROBORATION EVIDENCE

3.1 Corroboration must come from an independent source.

The following essential is mainly taken to avoid the cases where the person who gives evidence
keeps on supporting it by herself/himself but from different sources but with her/him as the
creator of all. If such can happen then it will cause an injustice to the defence since the person
can fabricate the information which keep corroborating each other. Rex v Whitehead5 in this
case the accused was charged with having unlawful intercourse with a girl aged 16 years, but she
mentioned the incident first time weeks later when she was pregnant. Lord Hewart C.J rejecting
the argument that such amounted to corroboration stated, “the girl cannot corroborate herself,
otherwise it is only necessary for her to repeat her story some twenty five times, to get twenty
five corroborations of it.” The all argument is that, the victim is the one who made or
communicated such information to be relied upon as corroboration. 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.6The
case where the victim shows some kind of distress has been a matter of concern whether it is to
be accepted as an independent source or not. In R V Chauham7, in that case the defendant was
charged with indecent assault on a woman. The complainants extricated herself and ran into
lavatory, where she was observed by a fellow employee who had heard her cry. The defendant
admitted that he had been with the complainant but denied any wrong doing and said that the
complainant had been behaving normally. The trial judge left the complaint distress to the jury as
potentially corroboration of her evidence28. On appeal, the court of Appeal went out of it way to
praise the clarity of the judge‟s summing up in this regard and held that he had right to permit the

5
1929 1K.B at page 99
6
Section 32 (2) Evidence Act cap 80 Laws of Kenya
7
[1999 18]7 Ecr APP R 232, Critical Analysis of Corroboration under the Nigerian Law of Evidence by Kareem
Rasheedat Temitope
jury to consider the complaint‟s visible. A different result was reached in the case of R v
Redpath8 Lord Parker C.J pointed out that in some cases for example where the distress is no
more than part and parcel of a recent complaint made by a girl to her mother, the jury should be
directed to attach little or no weight to it. Indeed it is submitted that such a case, even where the
distress is witnessed by an independent person, the evidence lacks the quality of independence
necessary for potentially corroborative evidence and should be left to the jury as such. The
general feeling about independent observer is that it is not admissible as corroboration since it
does not implicate the accused and the few cases are exceptions

3.2 Corroboration must implicate the accused.

The evidence must clearly link the accused with the crime but not that such an act occurred.
Some evidence may be given that shows the act happened but does not link accused with such an
act. This is what is called material particular; a fact which in the circumstances of the case and
the issue raised in it, is material to the guilt or innocence of the accused of the offence charged.
Olaleye V. State (1970) 1ALL NLR 300 In that case, a man rape a girl of 14 years the girl was
examine and was found to have the same gonorrhea found in the man accused of the rape. The
judge held that the presence of the same type of gonorrhea in the girl is enough as circumstantial
corroborative evidence.9 The evidence in this case connects the accused with the act. R v
Ogendo10 the accused also raped a girl and the medical evidence showed that the accused
suffered from same sexually transmitted infection as victim. This was held to be corroborating.

3.3 Corroborating and evidence to be corroborated evidence must be credible.

The evidence produced for corroboration should be relevant and admissible for it to support the
evidence to be corroborated, any evidence that is that is not relevant and admissible will not
corroborate. Republic v Jipkering arap kegey11 it was held, no amount of corroboration can
render an incredible evidence credible, it does not matter the amount of evidence the D.P.P,
plaintiff or Defence produces but the relevance of such is that that matters. B.K v Republic12 the

8
(1962)46 Cr APP R 319,312
9
Critical Analysis of Corroboration under the Nigerian Law of Evidence by Kareem Rasheedat Temitope
10
(1940) 10 KLR 25
11
O.C.K and company advocates on corroborating evidence at www.ockadvocates.com/2013/04/corroboration-
of-witnessesewvidence-law-ii/
12
Cr App no 104 (200) H.C Cr App no 197 (1999) eKLR
accused had been charged for indecent assault under s 144 of the penal code. The conviction was
based on the evidence of doctor who filled a P3 form but was not called to testify as a
corroboration of witness‟ evidence. The court of appeal quashed the conviction has the evidence
that was relied upon as corroboration was itself in doubt as it was simple hearsay. The case of R
v Christie the judge rejected the idea that information given by boy to police and mother could
corroborate the boy‟s evidence. The other rule that has been created is that the person
corroborating must not be one that his evidence also need to be corroborated like two minors
who don‟t understand the implication of oath cannot corroborate.

3.4 It confirms or supports the evidence given or that will be given.

Corroboration supports the evidence that is given or that will be given. For example in cases of
mutual corroboration the first witness may corroborate the next witness and the next witness may
corroborate the first witness too, therefore it is not obvious that it comes after the main evidence.

4.0 WHAT CAN CONSTITUTE CORROBORATION

Any kind of evidence which qualify above essentials can be a corroborating evidence.
Corroboration can be done through circumstantial evidence case of Ongweya v. Republic.13In
Ali v Republic (2008) 1KLR (G&F) it was held the commission of a sexual offence can be
properly corroborated by circumstantial evidence. The absence of medical evidence to support
the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim
of rape or by circumstantial evidence. Corroboration can also result from the conduct of the
accused himself.
Silence can amount to corroboration in some cases. This is mainly at the discretion of the court
but not so common but it will rarely occur and may result to miscarriage of justice. The accused
has the right to remain silent, and not to testify during proceedings.14 Instead of being used as
corroboration it has been considered to be against the party who does not talk in that case.

It has been a question as to whether lies constitute corroboration, when the accused person as
lied and it comes clear later can it be used against him. In R v chapman it was held that lies could
amount to corroboration. “Corroboration may well be found in the evidence of the accused

13
[1964] EA 129
14
Article 50 (2)(i) Constitution of Kenya 2010
person; but that is a different matter, for there confirmation comes, if at all, from what is said,
and not from the falsity of what is said. It is, of course, correct to say that these circumstances –
the failure to give evidence or to give false evidence – may bear against an accused and assist in
his conviction if there is other material sufficient to sustain a verdict against him. But if the other
material is insufficient either in quality or extent they cannot be used as a make-weight15” Lord
Macdermott. R v Dowley the appellant was convicted of rape of a woman who he was on
process of divorcing, he had said earlier that she had not seen the woman but later agreed that he
had seen her and had sex plays with her but was afraid to not to irate the woman he was currently
in relationship with. The judge had convicted him on basis that lie amounted to corroboration.
The appeal was allowed and conviction quashed.

5.0 TYPES OF CORROBORATION

MUTUAL CORROBORATION; this happens where several parties or two parties giving
evidence that require corroboration, corroborate the evidence inter se. mutual corroboration is
always permissible in law except in case of accomplices being „participes criminis‟ in the
offence charged16 Javed v Republic (2002) K.L.R Cr App No 966 the appellant was charged
with some narcotics, he appealed that the evidence he was convicted upon was uncorroborated,
the judge held that the two policemen had corroborated each other‟s evidence.

CUMULATIVE CORROBORATION; this are several portion of evidence that are brought by
very many independent sources. The judge takes them all and then they are accreted if they are
connecting to form corroboration or the jury attach weight to each. Accretion may make several
evidences that were not corroborating to make a corroboration. The instances may be connected
to come up with a good evidence at the end. The Earl of Reading C.J “In this case, I come to the
conclusion that there is in law, evidence upon which the justice could decide that the
respondent‟s testimony was corroborated in some material particular by other evidence. Each
fact found by the justice as tending to corroborate the respondent‟s evidence may by itself be
sufficient as corroboration but the cumulative effect of the evidence regarded not separately but
collectively may be and I think in this case is sufficient……..”

15
TumeHole Bereng v R
16
Critical Analysis of Corroboration under the Nigerian Law of Evidence by Kareem Rasheedat Temitope
IDENTIFICATION CASES; this is where witness identification at first instances is considered
as corroboration

6.0 CONSTITUTION AND CORROBORATION EVIDENCE

Corroboration is usually required to protect the accused from suspicious evidence and avoid the
risk of conviction on fabricated evidence. Article 50 of constitution provides that the accused
must be given a fair trial. The law will always be try and protect the accused “it is better to let 99
guilty people free than have one innocent man incarcerated.” This just tell us that in case
evidence is suspicious, it works at the accused advantage. Requiring corroboration does not also
seem fair to the victims who do not have an independent confirmatory evidence. In such a case it
will result to an injustice to the person who cannot get supporting evidence despite the credibility
of his own evidence. Under article 50 (9) the parliament shall enact legislation providing for
protection of rights and welfare of victims of offences, this can be done by allowing or accepting
uncorroborated evidence instead of quashing convictions for lack of corroboration. Every person
has equal rights before the law and therefore it should be applied mutually.

Silence has been said to amount to corroboration but the constitution states that the accused has
the right to remain silent and not testify during the proceedings.17 In such a case corroboration
will be unconstitutional and invalid.

7.0 RELEVANCE OF CORROBORATION

The question many people keep asking themselves is whether the modern society still needs to
corroborate evidence. Some people have felt that the law of corroboration is obsolete and should
be done away with especially after emergence of modern scientific evidence. They don‟t
understand why it still existing or why such evidences are also corroborated. The other group
feel that corroboration still has relevance and deleting it would result to miscarriage of justice.
They although recommend that it should be reviewed so that certainty is reached.

17
Article 50 (2) (i) constitution of Kenya 2010
7.1 Why it should be abolished.
i) Corroboration especially with such stringent rules can sometimes act as an obstruction of
justice especially in sexual offences where it is hard to obtain since they are done away from
public.
ii) In criminal cases the accused is already protected with the standard of proof which is beyond
reasonable doubt. For such reasons, the jury does not require any more evidence. It is upon them
to analyze the evidence given if it reaches the threshold.
ii) The law of throwing out cases on grounds of technicality has been found to be bad law.
Throwing a case on grounds of lack of corroboration is just but same to technicality.
Corroboration results into miscarriage of justice on the persons who are required to bring it being
either defence or applicants.
iii) Corroboration should be relaxed on more persuasive scientific evidences such as DNA which
are mostly accurate given the manner they are reached at.
It is also likely to save the courts embarrassments from the many successful appeals on grounds
of corroboration, it will also make the public to have more faith on the judicial system and also
erase the existing confusion as to corroboration.
iv) Corroboration is evidence based on quantity, since evidence A is in doubt we need B to
confirm or support. Instead the judge should just test the reliability of the existing evidence and
convict or acquit on such test.
v) The manner in which some crimes are committed make it hard to find corroboration. Example
is rape cases the penetration without consent, this are planned crimes, happen in exclusion of
people, which we might not find any other evidence to confirm.
vi) Use corroboration make us view evidence in terms of quantity and not quality Weiller v
United States18 where Black J said "Our system of justice rests on the general assumption that
the truth is not to be determined merely by the number of witnesses on each side of a
controversy. In gauging the truth of conflicting evidence, a jury has no simple formulation of
weights and measures upon which to rely. The touchstone is always credibility; the ultimate
measure of testimonial worth is quality and not quantity. Triers of fact in our fact-finding

18
(1945) 323 US 606 at 608.
tribunals are, with rare exceptions, free in the exercise of their honest judgment, to prefer the

testimony of a single witness to that of many".

7.2 Why we must retain corroboration

Accessing credibility or reliability of evidence will be so difficult without corroboration. It might
in itself result in an injustice. Fabrications can pass the tests successfully.
The standard of proof beyond reasonable doubts in criminal cases can barely be achieved without
corroboration which is to clear all the doubts surrounding a given evidence by confirming those
particular facts.
Sometimes to determine the quality of some evidence, you need quantity to confirm or support
the position whether quality is enough to proceed.
Corroboration is not something very hard to get since it can be gotten from circumstances of the
case or even from a person evidence is given against.
The removal of corroboration would just slow the justice process. There will be requirement of
series of investigations to come up with evidences. The process will be too long given that there
is a possibility of interference with the evidences. The country will also have to invest on the
criminal justice system.
The victims will likely be traumatized when they realize that the evidence they have given is not
enough to convict the accused.
It will most likely result into more acquittals than convictions. No matter which test the court
takes it will always fail to reach the standard of proof required.

8.0 APPLICATION OF CORROBORATION EVIDENCE

Lord Reading “The test of applicability to determine the nature and extent of the corroboration
is the same whether the case fall within the rule of practice at common law or within the class
of offences for which corroboration is required by statute. Admissibility, this mean that the
evidence itself must confirm to the general rule of admissibility and so be capable of being
received for the purpose of proving guilt as charged.19” The general rule is that corroboration is
actually not necessary or a requirement Javed v Republic Kubo J, held there is no law in Kenya

19
Baskerville v Rex, Peter Murphy a practical approach to evidence 4 th ed (Blackstone press publication)
requiring that in criminal cases there was need of corroboration. Despite such there are three
exceptions where corroboration has been applied.

8.2 Where corroboration is required as a matter of law.

In such cases the court will acquit the accused in case the evidence is not corroborated.

Children of tender years, Section 124 of the Evidence Act provides that evidence of a child
received in accordance to section 19 of the oaths and statutory declarations cap 15 (where a child
is not admitted to the oath) the accused shall not be convicted on such uncorroborated evidence.
This applies to a child of tender years who according to Kibagei v Republic is a child of less
than 15 years old. R v Campbell it was held that unsworn evidence of a child can be
corroborated by sworn evidence of another child and vice versa. However it has been a rule that
unsworn evidence of a child that requires corroboration cannot corroborate unsworn evidence of
another child.

The case of perjury; this happens when someone gives false testimony. A person cannot be
convicted of committing perjury or of subornation of perjury solely upon the evidence of one
witness as to the falsity of any statement alleged to be false20

Treason, this is a crime of trying, imagining or contemplating the overthrowing of government.

No person charged with treason, or with any of such felonies, may be convicted, except on his
own plea of guilty, or on the evidence in open court of two witnesses at the least to one overt act
of the kind of treason or felony alleged, or the evidence of one witness to one overt act and one
other witness to another overt act of the same kind of treason or felony.21

Speeding cases, under the Traffic Act section 43(3) it is said that an opinion given by a non-
expert may be used to convict a person in speeding cases if it is corroborated by another non-
expert opinion. This is an exception to the general rule in the evidence that the opinion of a non-
expert is not admissible.

20
Section 111 Penal code cap 63 laws of Kenya.
21
Section 42 (2) ibid
8.3 Where corroboration is not required as a matter of law but the jury must be
warned of the danger of acting upon uncorroborated evidence.
In this cases the jury need to warn themselves and after taking such warnings, they can convict.
The problem is we cannot tell whether the jury or judge is warned it is just a thing they note
down.

The evidence of accomplices, an accomplice is „participes criminis‟ is most likely to serve

his/her own interest by giving such information or evidence before court. Wilson Kinyua and
Another v Republic22 the appellant was charged with murder. He denied the charges while the
accomplice confessed but later repudiated. The appellant was convicted and he appealed. The
appeal court held that the appellant‟s confession was an accomplice evidence that required
corroboration.

Sexual offences cases, the courts have to warn themselves in case they plan to convict on
evidence that is not supported and if they are satisfied they can proceed and convict. It is very
hard to corroborate some of sexual offences because most occur away from public and so it is
quite a challenge with this requirement, therefore judges have held like in Mukungu v
Republic23 Kwach, Bosire and O'Kubasu “Corroboration is in effect other evidence to give
certainty or lend support to a statement of fact. In sexual cases, corroboration is necessary as a
matter of practice, to support the testimony of the complainant. However, there have been
instances, as in Republic v Cherop Arap Kinei and Another [1936] 3 EACA 124 and Chila v
Republic [1967] EA 722 at 723 (CA), in which it was held that a conviction on uncorroborated
evidence may be had if the court or jury, as the case may be, is satisfied, after duly warning itself
on the dangers of convicting on uncorroborated evidence, of the truth of the complainant's
evidence.” This is to prevent acquittals when corroboration is lacking and the judge is convinced.

8.4 Where corroboration is not required as a matter of law but a matter of

practice.
The corroboration does not become necessary requirement and lack of it is not very detrimental
to the case. It happens in first identification cases, where someone identifies the other at night

22
(1980) KLR
23
(2003) AHRLR 175 (KeCA 2003)
this is because it is hard for any human being to make a vivid identification at night of a person
and the same may be required for repudiated or retracted confession.

8.5 SCIENTIFIC EVIDENCE, CHANGES IN TECHNOLOGY AND

CORROBORATION
The law corroboration is meant to support or confirm the evidence given in court by another
person. It has been argued that some of the development in methods of collecting evidence like
scientific and technological means like CCTV and DNA test are much accurate and therefore
requirement of corroboration to support such evidence has been seen unnecessary. The truth is
that such evidences can prove identity without requirement of the supporting evidence. This is
the reason why people feel it is not necessary to corroborate such evidence. The judiciary as
always held that such evidence still need to be corroborated because of many reasons. One is that
such evidence can also be fabricated so there is still lack of trust on the persons who carry such
evidences, two is that some of the scientific evidences are not accurate to the extent that it can
stand on its own recently identical twins in India who one was charged for rape were taken for
DNA test just for the result to be positive for both.
Professor Buchanan Bill “on the internet it is very hard to take one source of evidence as
definitive source as things could be changed and people can have different identities. We
should always get some physical and traditional corroboration.” The third issue is, for a judge
to accept the source without corroboration, he might have to verify that the technology or science
placed is accepted in the field of origin and it must be accepted generally and not by some people
only. Fry v United States (fry rule) 293 F. 1013 (D.C. Cir. 1923). It was said, “Just when a
scientific principle or discovery crosses the line between the experimental and demonstrable
stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle
must be recognized, and while courts will go a long way in admitting expert testimony deduced
from a well-recognized scientific principle or discovery, the thing from which the deduction is
made must be sufficiently established to have gained general acceptance in the particular field in
which it belongs.”
Republic v Edward Kirui (2008) eKLR the case involved a police officer who was caught on
camera shooting a person in Kisumu during the post-election violence. The video ev.idence
given before the court was not enough to prove the accused was guilty. These evidences face
many challenges to ensure there correctness need corroboration.
In cases such as sexual offences it will still be necessary to corroborate before conviction, in as
much as DNA test of sperms can be taken and found to be positive does not in itself mean there
was rape and it must be proof more than just that evidence.

9.0 EVIDENCE AMENDMENT BILL

The rule of evidence has been that evidence that requires corroboration itself cannot corroborate
another, the rule exists by the fact that a non-reliable evidence will not make another non-reliable
evidence to be relied upon. In this case non-reliable does not mean incredible but credible but
need support so that the jury can rely on it for decision Shida Kazungu Baya and 4 others v
Republic eKLR, it was held that evidence that requires corroboration cannot be corroborated by
evidence which requires corroboration itself. Most of the amendment bills in many countries
Hong Kong, Scotland have proposed that such corroboration should be allowed. The bills have
also proposed abolition of corroboration in sexual offences. The New South Wales evidence
amendment Act 2012 included, inferences can be made in when defendant keeps silence in
serious indictable offences. The Singapore proposed amendments to the evidence Act include
reduce in the stringent measures taken to prove electronic evidence since the technology is now
more sophisticated and made quite improvements therefore some measures are not necessary.
They have also expanded the admissibility of hearsay and expert opinion evidence. The Victoria
parliament Jury amendment proposes that the jury, defence counsel and prosecutor shall not
infer, suggest or say that a child‟s evidence is bad on count of age or any person‟s evidence is
bad on count of incapability or inability. This is to strike out corroboration.
In Kenya there is no such amendment bill pending or proposed in parliament and so we stick to
the common law and the current evidence rules.

10.0 CONCLUSION
Corroboration evidence therefore confirms or supports a credible evidence given in court.
Corroboration is very important in evidence and abolishing it will interfere with the justice
process especially criminal justice. However it is a concern that the rules of corroboration should
be settled and at least a measure developed so that we can ascertain the law of corroboration and
deviate from precarious decisions. The current trends in evidence does not only affect
corroboration but all kinds and forms of evidence are affected. There is a requirement that
evidence Act should be amended to modernity to avoid the void and complexity of traditional
methods.

REFERENCE
Constitution of Kenya 2010
Evidence Act cap 80 Laws of Kenya
Penal Code cap 63 Laws of Kenya
Oaths and Statutory declarations cap 16 Laws of Kenya
Sexual Offences Act No 3 of 2006
G.B Shollei (2004) Kenya Law Report 2003, National Council of Law Report: Nairobi
G.B Shollei (2005) Kenya Law Report vol 1 2004, National Council of Law Report: Nairobi
J. Tudor (1981) The Law of Kenya; Introduction to cases and Statutes, Kenya Literature Bureau:
Nairobi.
K. Adrian (1994), The Modern Law of Evidence
J.D Heydon (1984), Evidence; Cases and Materials: Butterworths: London
G.D Nokes (1970), Cockle‟s Cases and Statutes: Sweet and Maxwell. London
www.ockadvocates.com/2013/04/corrooration-of-witnessesewvidence-law-ii/
Kareem Rasheedat Temitope (May 2011) Critical Analysis of Corroboration under the Nigeria
Law of Evidence. Pdf
CHARACTER EVIDENCE

Introduction
The Os o s Co ise la di tio a y defi es ha a te e ide e as e ide e elati g to the
good or the bad character of a witness. The evidence act of Kenya recognizes that the word
character includes reputation and disposition.24Disposition has been defined as the tendency of
a person, especially the accused, to act in a particular way 25 while reputation as the estimation
in which a person is generally held.26 O e a tell a pe so s disposition through observing
that person, that is, how are they likely to behave in a particular circumstance. Reputation on
the other hand is more specific than disposition; it refers to the general estimation with which a
person is held. For instance you may have a reputation of being a liar and people will perceive
you as someone who lies. These will be people with whom you work with or even know you
generally. With disposition, you have no control over, you could try but a lot has to do with
what one is predisposed to but with reputation it the way people perceive you. As Abraham
Li ol stated, dispositio is the t ee hile eputatio is the t ee s shado .

Relevance of Character Evidence

 The law assumes that there is a link between character and credibility.A pe so s
ha a te a the efo e i flue e a ou t s de isio .
 Character evidence helps the Court gauge the credibility of a witness. A court is unlikely
to place great faith on a witness who has a record of previous conviction.On the other
hand,the prosecution can employ bad character evidence to prove quilt rather that the
credibility.
 On the side of an accused ,good character,if adduced,will seek to convince the court
that the accused is unlikely to have commited the offence because it is not in his
disposition and reputation.On the other hand, evidence of bad character will be
adduced in court in a bid to convince the court that it is in the accused character to
commit such a crime.

24
Section 58 of the Evidence act of Kenya
25 nd
Oxford dictionary of law 2 Edition.
26
(n2 above)
Character Evidence in Kenyan Law
The law on character evidence seems to be unclear and confusing. The Kenyan courts have
never clearly decided whether it is anchored on the general view of the community or the
intimate knowledge of one person to another.27 However, development of character evidence
can be traced to English law. The first meaning can be traced to ‘o to s 28case in which the
ou t s de isio e uates ha a te e ide e to eputatio . Ho e e , it dis ega ds the fa t that
the e is a ha e that o e s eputatio is shaped y ali ious gossip o u our. Further, at that
time, people lived in a closely knit society where you could know what your neighbour was
doing. The second legal meaning of character is adopted from observable personal traits such
as generosity, introvert or courageous while the third and most recent is equated with
particularized acts ,specific conducts and previous convictions.All the meanings,however,ignore
the fact that what one person thinks is good character,another might term it as extremely
bad.29

In R V. Rowtown (1865) the accused was charged with indecent assault and gave evidence of
his good moral character. To rebut this evidence, a person was called to testify and he said that
he had no knowledge of the eigh o hood s opinion but he was of the opinion of the grossest
indecency and immorality. He also said that this was also the opinion the accused brothers. The
ou t held that it as ot ad issi le e ause it as ased o it ess s o opi io as opposed
to the o u ity s opi io . Ho e e the disse ti g judges e e of the opinion that it should
ha e ee ad itted si e it as ased o the it ess s k o ledge of a used athe tha that
of the community.

27
Republic v Rowtown (1865)
28
(n 4 above)
Que ti C isp, The Naked Civil Servant (1968)
29
Relevance and Admissibility of Character Evidence in Kenya.
 In civil cases

The general rule is to reject evidence of the character of the parties.30 Generally therefore
evidence of character would not be admissible. There are however three circumstances under
which it will be admitted;

When the character is in issue or directly relevant to the issue; for example where it is a libel
suit and justification is pleaded, then the person pleading justification must be permitted to
show that person that person instituting libel suit is of the character presented in the alleged
libelous matter.31

It will also be admitted where the character is such as to affect the quantum of damages.
Section 12 32is applicable as well as section 55(2)33, an example is in a defamation suit. If you
can show that a person has not reputation then that is relevant to the quantum of damages.
Evidence of character will be admissible in this case.

Further it will be admitted where the character of a witness is always relevant to his credit
under Section 154 of the Evidence Act. Cross examination as to credibility, accuracy veracity
and character. It is therefore admitted where it is relevant in determining the credibility of the
witness. It is in these instances that the courts will accept evidence of character in civil cases.

 In criminal cases

Good character evidence is admissible in criminal law34 .It can be adduced either in chief by the
accused or other defence witnesses in cross examination of a witness called by the prosecution.
Bad character evidence is inadmissible unless such evidence is otherwise admissible as

30
Section 55 of Evidence Act, Cap 80 Laws of Kenya.
31
Section 55(1) Evidence Act Cap 80, Laws of Kenya.
32
Evidence Act Cap 80 Laws of Kenya.
33
Evidence Act Cap 80 Laws of Kenya.
34
Section 57 of the Evidence act of Kenya
evidence of a fact or directly relevant to a fact in issue.35 It will also be relevant if it is adduced
to show that the accused has been convicted of another offence and has a result his character
is embedded in a state of mind or in system. 36

Character evidence will also be admissible if the accused, personally or through his advocate,
attempts to establish the character of prosecution witness37 and nature or conduct of defence
conducts itself in a way to attribute something dishonest on the part of prosecution witness or
the complainant.38 In R v Thomas Cholmondley39, the prosecution successfully sought to adduce
e ide e of a used s ad ha a te ,dispositio a d ge e al eputatio e ause the a used
had thrown the first stone by attacking the conduct and reputation of certain prosecution
witnesses.Lastly, a pe so s ha a te e ide e ill e ad issi le if he has gi e e ide e
against any other person charged with same offence.40 The e ide e of a pe so s p e ious
conviction will also be admissible after he has been convicted of the present offence awaiting
conviction.41

In cross examination, a person can be asked any question and it does not matter whether that
question is incriminating. Evidence or cross examination of an accused on bad character
evidence is inadmissible unless the five exceptions under section 57 apply. One of the
exceptions is that evidence of bad character will be admissible as evidence of fact in issue
where it comprises similar fact evidence.42 In the case of R v Smith,the court accepted evidence
that other two women whom the accused had married had met the same fate.43However some
courts are of the view that for similar fact evidence to be admissible as an exception under
section 57(1)(a) above, it has to be a conviction.

Evidence of bad character is also 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
35
Section 57 (aa) of the Evidence Act of Kenya
36
Section 57 (a) of the Evidence Act of Kenya
37
Section57 (1) (b) of the evidence act
38
Section 57 (1) (c) of the evidence act.
39
R v Thomas Patrick Gilbert Cholmondeley ,Crimianl case no.55 of 2006
40
Section 57 (1) (d) of the evidence act.
41
Section 57 (2) of the evidence act
42
Section 57(1)(a) Evidence Act Cap 80 Laws of Kenya.
43
R V Smith (1915) 11 APR 229
good character then he could be questioned on bad character.44 Here we go back to section 56
above where evidence of good character is admissible. If an accused person is telling the court
that he is of good character, the prosecution can prove that he is not of good character. The
accused is such cases lay himself bare for the prosecution to show that he is not as good as he
alleges.

For instance in the case of Mohamed Hassan Osman V. Republic45 the appellant, (Mohamed
Hassan) appealed twice to the court. In the superior court, his appeal was dismissed and was
sentenced to death. The second appeal was allowed but ordered to be reheard by the High
court. The appellant in this case was accused of robbing a bank and was convicted on the
evidence of a prosecution witness no. 8 who in his testimony said that he knew the appellant
for two years before the incident occurred. He also testified saying the appellant was a criminal.
The appellant lawyer appealed to the court arguing that the magistrate ought not to have
admitted the evidence as it was evidence of bad character of the appellant and the appellant
ought to have been warned about asking such question in Evidence Act.

The court however rejected this saying that this was an issue which was brought upon himself
voluntary by the appellant. The Court of Appeal held that the appellant was convicted on sound
evidence which proved the charge against him beyond any reasonable doubt, hence the appeal
was dismissed.

Also evidence of bad character is admissible where the nature or conduct of the defense is such
as to involve imputations on the character of the complainant or of a witness for the
prosecution.In Kenya and East Africa, cross- examination on previous antecedents is not
permissible if it is vital for the defense to raise issue of the character of the complainant. The
court however 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 .An accused

44
Section 57(1)(b) Evidence Act Cap 80 Laws of Kenya.
45
(2004)eklr.
person can be questioned on his previous antecedent if he gives evidence against any other
person charged with an offence.46

Evidence of bad character can also be seen from the Kenyan case of James Thanju Mbiyu V.
Republic47who was charged and convicted of stealing paint worth Ksh. 1100 contrary to section
238(1) of the Penal code and destruction of property. He was sentenced 2 years on each count
with the prison terms running concurrently. The appellant appealed. In his appeal, the
appellant appealed on grounds that the case arose out of family affairs and it was a fabrication.
He also pleaded that he was remorseful and the sentence was harsh. His prayers were for the
court to reverse the sentence. The complainant in this case was the appellant s father. From his
evidence, the complainant testified against the appellant (his son) arguing that it was the third
time the Appellant was coming before the court to similar offences. He alleged that he had
been placed on probation twice and was in fact serving the sentence when he committed this
offence. The prosecution however did not confirm this allegation and treated the appellant as a
first offender.

Judge Lesit in this appeal admits the offences were committed by the appellant but his is of the
view that bad character was admitted as evidence. According to the evidence Act section 154,
such evidence cannot be given unless certain conditions are fulfilled. Justice Lesit said that
evidence of bad character of the appellant was unnecessary and not relevant to the case and
the conditions of admitting such evidence was not met. According to the judge the trial judge
was influenced by the bad character of the appellant during the trial and this was a miscarriage
of justice to the appellant.

The family factor according to Judge Lesit was not taken into considerations as it should have,
the o plai a t as appella t s fathe . Judge Lesit held that the case called for non- custodial
sentence and he ordered the appellant to be released unless any evidence to the contrary can
be proved.

46
Section 57(1)(d).
47
Criminal appeal No. 784 of 2003 in High court of Nairobi.
Character evidence in sexual offences is inadmissible in Kenyan courts48 .However; a court
might decide to accept evidence of character if it relates to a specific instance of sexual activity
relevant to a fact in issue49 or is likely to rebut previously adduced evidence by the
prosecution.50 Character evidence may also be accepted if it is likely to explain the presence of
semen or the source of pregnancy, disease or injury to the complainant, if it is relevant to a fact
in issue51, o is fu da e tal to the a used s defe e.52 However, the admissible character
evidence should ot su sta tially e out eighed y its pote tial p ejudi e to the o plai a t s
personal dignity and right to privacy.53

However, scholars have argued that it is unfair for courts not to admit evidence of good
character of the accused.54 Generally, lack of consent is an important component in the
o plai a t s argument of his case and in some cases; the prosecution might even go to an
extent of adducing evidence to prove that the assault involved loss of virginity or even produce
a it ess to testify that the o plai a t s eligio ould ot allo he to o se t to su h a
act. In such circumstances, it would only be fair to allow the accused to produce evidence of her
good character.

Shortcomings of the Evidence law in Kenya

Evidence law in kenya does not define good character neither does it define bad character.It
doses not explain whether previous convictions have any relevance on credibility of
witnesses,especially if they are minor.In some cases under common law,evidence which would
otherwise be referred to as bad character can be treated otherwise.For instance,when a court
is seeking to establish the person who shot his victim during robbery can accept evidence of a
pe so ho is al ays a al o e as good ha a te e ide e.Under English law bad
character evidence has been defined as evidence which has to do with the alleged facts of the

48
Section 34 of the sexual offences act of Kenya.
49
Section 34(a) of the Sexual offences act of Kenya
50
Section 34(b) of the Sexual offences act of Kenya
51
Section 34(c) of the Sexual offences act of Kenya
52
Section 34(e) of the sexual offences act of Kenya
53
Section 34(d) of the Sexual offences act of Kenya
Colli Tape , Cross and Tapper on Evidence
54
offence with which the defendant is charged or evidence of misconduct in connection with the
investigation or prosecution of that offence.55

The law on good character is tilted in favour of the defendant.This is because if one successfully
proves evidence of good character the court will consider it in the decision as opposed to the
prosecution who have to produce a witness of good character to improve their chances in
court. A witness who is found to be of bad character definitely weakens the prosecutions case.

The act does not directly place a responsibility on the court to inform an unrepresented
litigants that evidence of their bad character will be admissible if they question the witness on
their character.As a result, accused persons always unknowingly cause evidence of their bad
character to be admitted.56

Conclusion
Character evidence is vital in the law of evidence. However,the Evidence Act of Kenya should be
amended to provide more guidance to litigants on evidence of character.

55
Section 98 of the criminal Justice Act
56
Mohammed Hassan Osman v Republic, criminal appeal no.48 of 2007
References
Books

 The evidence Act of Kenya,Act no.80 of Kenya

 Collin Tape , C oss o E ide e 2005
 Kyalo M o u, The la a d P a ti e of E ide e i Ke ya 2009
 Que ti C isp, The Naked Civil Servant (1968)

Websites

 www.kenyalaw.org
 www.lawafrica.com
 www.michaelmurungi.blogspot.com
OPINION EVIDENCE

An opinion is a view, judgement or appraisal formed in the mind about a particular matter57. It is
an inference which one may draw from perceived data.

Opinion evidence is therefore evidence of what the witness thinks, believes or infers in regards
to the facts in dispute as distinguished from personal knowledge of the facts themselves58.

It is important to distinguish between facts and opinions. A witness‟s view of what another
would do in a certain circumstance is a matter of opinion, but his view of what he himself would
do is a matter of fact. Statements concerning speed, temperature, or the identity of persons,
things and handwriting are however indissolubly composed of facts and opinions. The statement
that a car was been driven on the left side of the road is essentially one of fact but the assertion
that a particular piece of driving was negligent is a matter of inference from the observed facts. 59

It is necessary to distinguish between the legitimate expression of opinion and its application to
an assumed set of facts. In HG V R60 the court held while it would have been permissible for a
psychiatrist to express an opinion as to whether a child‟s behaviour indicated that it had been
sexually abused it was inappropriate for him to express an opinion that the abuse had been
perpetrated by a particular person at a particular time.

The General Rule is that opinion evidence is inadmissible. There are several reasons as to why
the courts exclude opinion evidence;

 Because it is hearsay evidence.

 If a witness gives a false opinion, he cannot subsequently be prosecuted for perjury61.
 Admission of opinion evidence is usurpation of the powers of the jury. Whereas it is the
role of the witnesses to state facts, the drawing of inferences is a function of the court or

57
Merriam Webster Dictionary
58
Adrian Keane, Modern Law of Evidence
59
Tapper, C. (2007). Cross & Tapper on Evidence (11 ed.). New York: Oxford University Press

60
(1999)
61
Perjury is the making or uttering of false evidence with the intention that court accepts it as true.
 the jury. If witnesses are allowed to readily express an opinion concerning an ultimate
issue, there is a risk that the jury will be unduly influenced.62
 Opinions are irrelevant because they lack adequate probative force or value.
 The reception of opinion evidence may not assist and may even mislead the court
EXCEPTIONS TO THE GENERAL RULE

The law however recognises that so far as matters calling for special knowledge or skills are
concerned, judges are not necessarily equipped to draw true inferences from facts stated by
witnesses. In Buckley V Rice- Thomas63, Saunders J stated “if matters arise in our law which
concern other sciences or faculties we commonly apply for the aid of that science or faculty
which it concerns. This is a commendable thing in our law. For thereby it appears that we do not
dismiss all other sciences but our own, but we approve of them and encourage as things worthy
of commendation.”

The courts may allow a witness to give opinion evidence;

 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 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 or finger or other impressions. 64
 Where it is impossible to separate facts from inferences. For instance in identification
parades.
 Where it is likely to be correct that convenience dictates that it be admitted.
EXPERT EVIDENCE

An expert is a person having skill or experience or peculiar knowledge on a certain subject or in

certain professions. Experts are persons examined as witnesses in a case who testify in regard to

62
R V Ratti (1991), the court must always be free to reject even unanimous expert evidence for example if it rejects
the facts upon which they are based.
63
(1554)
64
Evidence act section 48(1)
some professional or technical matter arising in the case and who are permitted to give their
opinions as to such matter on account of their special training, skill or familiarity with it.65

Section 48 (2) of the Evidence Act defines an expert as a person who is skilled in matters of
foreign law, finger impressions, science or art or the identity or genuineness of handwriting.

The question of whether a person is an expert raises a lot of questions. For a person to be an
expert, he/she must;

 Be shown to be competent
 Have a special study of the subject or have long experience on the subject matter
 Have acquired special experience as the value of the evidence of an expert will be
enhanced or depreciated according to the number of years they have practised.
The court has to be satisfied that the person before it is an expert and the matter before it requires
expert evidence. In R V Gilfoyle66, the court of appeal held that evidence of a “psychological
autopsy” of a deceased person was not expert evidence of a kind that can be placed before a
court but new areas of expertise are accepted from time to time. The court did not recognize
psychological autopsy as a field of expertise.

RULES GOVERNING EXPERT EVIDENCE

1. An opinion given by an expert is based on the facts in a particular case. These facts must
however themselves be proved by admissible evidence.
2. An expert is not bound to only give expert opinion from matters he gains knowledge of
by perceiving through his five senses. He/she may draw inferences from what he/she has
perceived through his/her senses.
3. An expert may support his/her opinion by referring to articles, letters, journals or other
material whether published or not when giving their testimony. In R V Abadom67, the
appellant had been convicted of robbery. On appeal he raised the question about the
materials that could be used by expert witnesses when giving evidence. The prosecution
relied on a pair of his shoes which had fragments of glass embedded in them as the main
evidence.

Bla k s La Di tio a y
65
66
(2001) Crim. LR 312
67
(1983) 1 All ER, 364
 The prosecution argued that the glass came from a window broken during the robbery. In
support of this, one of the prosecution expert witness relied on statistics collected by the
Home Office Central Research Establishment in relation to the refractive index of broken
glass. The appellant contested that the evidence of this expert was inadmissible hearsay
because the expert had no personal knowledge of the analysis whose results were
collected in these statistics. In rejecting this contention, the court of appeal stated that
experts must be entitled to draw on material produced by others in their field of expertise.
It is part of their duty to consider any material that may be available and need to draw
conclusions based solely on their experience which would be invariably be limited.
4. In Armchair Passenger Transport Limited V Helical Bar Plc. 68, Nelson J, after
considering the authorities laid down the following principles;
a. It is always desirable that an expert should have no actual or apparent interest in
the outcome of the proceedings.
b. The existence of such an interest, whether as an employee of one of the parties or
otherwise does not automatically render the evidence of the proposed expert
inadmissible.
c. The decision as to whether an expert should be permitted to give evidence in such
circumstances is a matter of fact and degree. The test of apparent bias is not
relevant to the question of whether or not an expert witness should be permitted to
give evidence.
d. The questions that have to be determined are whether;
I. The person has relevant expertise.
II. His aware of his primary duty to the court if he gives expert evidence and
is willing and able, despite the interest or connection with the litigation or
a party to carry out that duty.
e. If the expert has an interest which is not sufficient to preclude him from giving
evidence the interest may nevertheless affect the weight of his evidence.
HOW DO EXPERTS TESTIFY?

68
(2003) EWHC 367 (QB)
Experts are brought by the parties who wish to rely on their experience and skill. The party who
wishes to call the expert should inform the court of the expertise of the person they want to rely
on and give a brief of the area of expertise.

The expert has to be ascertained by being asked leading questions to determine;

i The witnesses‟ educational background which includes looking at the certificates and
ascertaining the credibility of the certificates. The court also checks where the expert
studied.
ii The work experience of the expert as their competence is measured by their working
duration.
An expert witness should first testify on the facts in order to lay the foundation before he can be
allowed to express his opinion. They should be ready to justify their opinion by argument and
demonstration69. In R v Kupikandimu and 3 others70a medical expert gave evidence stating in
a deposition that certain injuries described by him were inflicted before death. He gave no
reasons for the opinion. It was held that opinion evidence was inadmissible as to the cause of
death.

For one to be relied on as an expert, he/she has to be qualified. In the case of Mohammed
Ahmed v R71, the appellant had been convicted of occupying an unsafe house. Opinion by the
district housing inspector and the superintendent of works said that the house was so unsafe to
constitute nuisance. The Court of Appeal held that the two were unqualified and their evidence
was inadmissible.

Keen interest in a subject matter can lead to one having knowledge through experience, hence be
regarded as an expert. This was shown in the case of R v Silverlock 72where the court accepted
the evidence of a solicitor on handwriting as expert evidence because he had keen interest in the
subject though he was unschooled in the subject matter.

69
Onyango v R (1969) EA 362
70
(1946) 72 L.R 90
71
(1957)EA 323
72
(1894) 2QB 766
In Gatheru s/o Njagwara v R73 the accused was charged with unlawful possession of a firearm.
A police officer gave evidence where he simply described himself as an inspector of police
attached to the Criminal Investigation Department of Nanyuki. He did not tell the court how long
he had perfected his duties, whether he had seen or examined any hand-made weapon other than
those seized in the course of the operation leading to the arrest of the accused. The issue on
appeal was whether the evidence of such a person was admissible as expert evidence. The court
observed „we think that such specific skill is not confined to knowledge acquired academically
but would also include skills acquired by practical practise...but even so, his competency as an
expert shall in all cases be shown before his testimony is properly admissible‟.

In the case of Stephen v R74the court in this case rejected evidence that was given by a
policeman that he had found the accused in possession of a drug called bhang. Had he just stated
that he had found the accused with a chalk like substance, of a certain colour and a certain smell,
this would have been admissible. Only an expert could separate the compound of that substance
to say it is bhang.

In the case of Charles Ng’ang’a v R75, the accused was charged with causing death by
dangerous driving. A police testified on the point of impact to which the defence objected
because the police was not an expert. The appeal court held that unless it was shown that the
policeman had many years of experience in inspecting motor vehicle accidents, he should not
give expert evidence on such a matter.

With regards to handwriting experts in Wainaina v R, it was held that:

i Whilst a handwriting expert may in a proper case say he does not believe that a particular
writing is a by a particular person, the most he should ever say on the positive side is that
two writings were similar so as to be indistinguishable.
ii He might comment on unusual features which make the similarity more remarkable.
iii There is no rule requiring the corroboration of the evidence of handwriting expert.
How do the courts treat expert evidence?

73
(1954)21 EACA384,385
74
(1973)EA 22
75
Kenya appeal report criminal case no. 66 of 1980
Opinion evidence is not binding to the court but it should be considered with other evidence in
reaching the final decision by the court.

An expert is called upon to assist the court in matters that the court is not too well equipped to
make a decision on. The expert does not take the role of the court and so the courts should not
abdicate their responsibility to the experts.

In Kit smile Mugisha v Uganda76, the court stated that expert evidence is just opinion and
should not take the place of substantive evidence. The court only decides an issue upon such
assistance which the expert offers. The court forms its own opinion on the subject matter at hand.

In the case of Hassan v Salum77 it was opined that the court should not rely on expert evidence
as they may also make mistakes. This way, the court is not bound by expert opinion

Section 49 provides that facts not otherwise admissible are admissible if they support or are
inconsistent with the opinions of experts, when such opinions are admissible.

Expert opinion is open to corroboration and or rebuttal. If there are conflicting opinions,
resolution of the conflict or acceptance of one expert opinion in preference to that of the other is
the courts responsibility.

EVIDENCE OF OPINION ON MATTERS NOT CALLING FOR EXPERTISE IS

GENERALLY EXCLUDED.

If on the proven facts a judge can form their own conclusions without help then the opinion of an
expert is unnecessary.

In the case of R v Chard78the court of appeal held the judge to have rightly excluded medical
evidence concerning the intention, at the material time, of someone charged with murder, where
there was no question of his being insane or suffering from diminished responsibility. A judge is
as competent as a psychiatrist to form an opinion about the past intention of a normal man.

76
Criminal appeal ,no. 78 of 1976
77
(1964) EA 172
78
(1971)
In R v Turner79, Turner unsuccessfully pleaded provocation answer to a charge of murder of his
girlfriend whom he alleged that he had killed in a fit of rage caused by her sudden confession of
infidelity. He appealed on ground that the judge had wrongly refused to allow him to call a
psychiatrist. This witness would have sworn that the accused was not mentally ill; that he had a
deep relationship with the girl which was likely to cause an explosive outburst of rage at her
confession and that his subsequent behaviour showed profound regret at what he had done. The
court of appeal held that no evidence was required for the first of this matters which was
undisputed and that judges do not need a psychiatrist to tell them how ordinary people who are
not suffering from mental illness are likely to react to the stresses and strains of life.

This was contrasted with Lowery v R80 where Lowery and King were charged with a murder
that must have been committed by either or both of them. The Privy Council held that the judge
had properly allowed King to call a psychiatrist to swear that he was less likely to have
committed the crime than Lowery.

On similar grounds expert evidence is inadmissible to explain the ordinary meanings of words
such as „obscene‟; indecent‟81. Evidence of opinion may not be proferred on an ultimate issue. In
Grismore v Consolidated Products82 it was stated:

“when a standard or a measure or a capacity has been fixed by law e.g. negligence or incapacity
to marry, no witness whether expert or non-expert, not however qualified is permitted to express
an opinion as to whether the person or the conduct in question measures up to that standard on
that question the court must instruct the jury as to the law and the jury draws its own conclusion
from the evidence”.

Expert opinion may never be received on a question of domestic law 83.Expert opinion should not
be allowed to force a view of the application of the relevant law upon the judge.

ADMISSIBILITY OF OPINIONS BY NON-EXPERTS

79
(1975)QB
80
(1974)AC
81
R v Stamford 1972) 2 QB
82
(1942)
83
Prigmore v Wilbourne (2003)
Section 50 (1) of the Evidence Act provides that when the court has to form an opinion as to the
person by whom any document was written or signed, the opinion of any person acquainted with
the handwriting of the person by whom it is supposed to be written or signed that it was or was
not written or signed by that person, is admissible.

A person is said to be acquainted with the hand-writing 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 his authority and addressed to that person, or
when in the ordinary course of business documents purporting to be written by that person have
been habitually submitted to him.

In Doe d Mudd v Suckermore84 Coleridge J on how to prove handwritings said: either witness
has seen the party on some other occasion or he has corresponded with him and transactions
have taken place between them, upon the faith that letters purporting to have been written or
signed have been so written or signed.

Section 51 states that opinions as to the existence of any general custom or rights, that is custom
or right common to any considerable class of persons, given by persons who would be likely to
know of such customs or rights are admissible.

Section 52 provides that opinions of persons having special means of knowledge are admissible
as to the usages and tenets of anybody of men or family, the constitution and government of any
religious or charitable foundation.

Section 53 provides that when a court has to form an opinion as to the relationship of one person
to another, the opinion expressed by the conduct as to the existence of such relationships of any
person who as a member of the family or otherwise has special means of knowledge on the
subject is admissible.

IDENTIFICATION EVIDENCE

Usually it‟s often the expression of an opinion that a person seen at one time (at the scene of
crime) is the same person as was seen at some other time (in court, identification parade).

84
(1837)
Opinion is usually admissible whether identity took place before the crime, at the identity parade
or at trial.

The general rule is that it is unsafe to convict on the evidence of identity of a suspect of one
witness without corroboration although it can be done. Such evidence should be received with a
lot of caution. In Rovia v R85 Lord Gardner L.C stated “there may be a case in which identity is
in question and if any innocent people are convicted today I should think in nine cases out of
them if there are as many as ten it is a question of identity. It is the duty of the court especially
where the only evidence against an accused is identity by one witness, to satisfy itself that in all
circumstances it is safe to act on such identity”.

Admissibility of non-expert opinion evidence of identity

There are certain classes of cases where opinions of ordinary witnesses are not only helpful but
they have to be admitted out of necessity. There are things or events in which no language can
adequately describe and the best account is from the impression/opinion which the witnesses
formed.

Identity parades require special magistrates owing to the procedure and potential. In R v
Mwango s/o Manaa86 only 3 men including the accused were paraded. The court held the
method of identification is very unsatisfactory.

85
(1967) EA 583,584 (CA)
86
(1936) 3 EACA 29
.
 REFERENCES

Allen, C. (2008). Practical Guide to Evidence (4 ed.). Routledge.Cavendish.

Dennis, I. (2010). The Law of Evidence (4 ed.). London: Sweet & Maxwell.
Evidence Act Cap 80 laws of Kenya.
Keane, A. (2010). Modern Law on Evidence (8 ed.). New York: Oxford University Press.
Michael Stockdale, C. M. (2008). Nutshellls Evidence (5 ed.). London: Sweet & Maxwell.
Munday, R. (2011). Evidence (6 ed.). New York: Oxford University Press.
Tapper, C. (2007). Cross & Tapper on Evidence (11 ed.). New York: Oxford University
Press.
Uglow, S. (2006). Evidence Text & Materials (2 ed.). London: Sweet & Maxwell Ltd.