CUEA CLS 202

Topic 2
Relevance and
Admissibility

CHARLES B G OUMA LLB MLB

Member CUEA FOL
 Lesson Objectives

• At the conclusion of this lesson the participant should be able

to
1. Discuss the interaction between relevance and
admissibility
2. Explain the general restriction on admissibility of evidence
3. Determine what are relevant facts under ss 6- 16
4. Illustrate the provisions of s 5- 16 with some hypothetical
scenarios preferably extracted from case law
5. Cite and discuss at least one decided case on sections 5-
16
 Part 1

Relevance and Admissibility

Generally
 • Section 5 Ev. Act. Subject
to the provisions of this
Act and of any other law,
no evidence shall be
given ( admissibility) in
any suit or proceeding
Relevance & except evidence of the
Admissibility existence or non-
existence of a fact in
issue, and of any other
fact declared by any
provision of this Act to be
relevant (relevance)

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 • The first rule of evidence is
that it must be relevant to be
admissible
Relevance
• In the KEA, ‘relevance’ is a
question of both law and
logic

2/11/2022 CHARLES B G OUMA LLB MLB ADJUNCT FACULTY 5

 • Evidence is relevant if it tends
to prove or disprove the
existence of a fact in issue-
(Logic)
Relevance
• Sections 5-16 (and other
provisions of the Evidence Act
and other written laws )
declare what is relevant (Law)

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 • In common law, ‘relevance’
is the tendency of a given
item of evidence to prove
or disprove one of the legal
elements of the case, or to
Relevance have probative value to
make one of the elements
of the case likelier or not.
• ‘Probative’ is a term used in
law to signify "tending to
prove.

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 • “Evidence is relevant if it is logically
probative or disapprobative of
some matter which requires
proof…’Logical
probativeness’…does not of itself
express the element of expedience
which is so significant of its
operation in law…It is sufficient to
Relevance say…that relevant evidence, i.e.
logically probative of
disapprobative evidence is
evidence which makes the matter
which requires proof more or less
probable. Per Lord Simon of
Glaisdale in DPP v Kilbourne [1973]
AC 729 at 756, HL
 • All relevant evidence is prima facie
admissible, and no irrelevant
evidence is ever admissible
• The relevance of an item of
evidence can determine what rules
Importance or principles of law govern its
admissibility.
of • For example, the rule against
Relevance hearsay excludes an out-of-court
statement only if it is adduced in
order to establish the truth of what
was stated. If it is relevant for a
different reason, the rule does not
apply
 • Admissible evidence, in a
court of law, is any
testimonial, documentary, or
tangible evidence that may
Admissibility
be introduced to a fact finder
in order to establish or to
bolster a point put forth by a
party to the proceeding.

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 • Though evidence must be
relevant to be admissible, not
all relevant evidence is
admissible.
• Admissibility is about including
or excluding evidence
Admissibility
• Admissibility is a question of
law and is driven by policy
considerations – unlike
relevance and weight, which are
matters of both law, logic and
common sense.
 • Admissibility may turn on
the relevance that a
particular item of evidence
has in the circumstances –
as with the rule against
Admissibility hearsay. It follows that
before you can tackle the
legal question of
admissibility, you will often
have to clarify the logical or
common-sense question of
relevance.
 • Relevant and even otherwise
admissible evidence may be
excluded if the probative value is
substantially outweighed by the
danger of one of the
Exclusion enumerated grounds for
of exclusion.
relevant • The grounds for exclusion include
evidence unfair prejudice, confusion of the
issues, or misleading or by
considerations of undue delay,
waste of time, or needless
presentation of cumulative
evidence
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 • Article 50 (4) CoK 2010
• Evidence obtained in a
manner that violates any
Exclusion right in the Bill of Rights
of shall be excluded if the
relevant admission of that evidence
evidence would render the trial
unfair or otherwise be
detrimental to the
administration of justice.

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 • The handcuffing of the petitioner, taking
Anthony him to hospital without explanation,
forcing him to a small room and forcing
Muriithi him to sit on the floor, handcuffing his
legs, assaulting him with a syringe to
extract blood, forcing open his mouth
vs OCS and scooping fluid from his mouth was
against freedom from torture, and cruel,
Meru inhuman and degrading treatment. The
acts were acts of disrespect to the
Police petitioner. The petitioner's inherent
dignity and the right to have that dignity
Station- respected and protected was breached
by the respondent. Per Makau J
 • The first rule of evidence is
that it must be relevant to be
admissible
• But not all relevant evidence
Interaction is admissible..
between
relevance • Relevant evidence may be
and excluded by law due to
admissibility important policy
considerations
• All relevant evidence is
admissible unless excluded
by law
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 Weight

• Weight addresses the quality

and strength of the evidence
• The extent to which it renders
the existence of a fact more
probable than not
• Weight may be an element to
be taken into account when
determining relevance.
 Reliability is concerned
about the source of
evidence
Reliability
The extent to which
credibility can be
attached to the source
 Part 2

2. General restriction on
admissibility of evidence
 • S 5. Subject to the
provisions of this Act and of
any other law, no evidence
shall be given in any suit or
General
restriction
proceeding except
on evidence of the existence or
admissibility
of evidence
non-existence of a fact in
issue, and of any other fact
declared by any provision
of this Act to be relevant.
 Part 3

3. Relevant Facts
 Relevant
Facts
1. S 6 Facts forming part of same
transaction.
2. S 7 Facts causing or caused by other facts.
3. S 8 Facts relating to motive, preparation
and conduct
4. S 9 Explanatory and introductory facts, etc
5. S 10 Statements and actions referring to
common intention.
6. S 11 Facts inconsistent with, or affecting
probability of, other facts
7. S 12 Facts affecting quantum of damages.
8. S 13 Facts affecting existence of right or
custom
9. S 14 Facts showing state of mind or
feeling
10. S 15 Facts showing system.
11. S 16 Facts showing course of business.
 Facts forming part of
same transaction. (Res
Gestae)

• S 6. Facts which, though not in

issue, are so connected with a
fact in issue as to form part of
the same transaction are
relevant whether they
occurred at the same time
and place or at different
times and places.
 Facts forming part of
same transaction. (Res
Gestae)

• These are surrounding

circumstances and background
facts
• Its is not always obvious to know
when an event begins and when it
ends
• Facts cannot be dealt with in
isolation, they may become
difficult or even impossible to
comprehend
• Facts are best understood in
context
 Facts forming part of
same transaction. (Res
Gestae)

• Facts or circumstances may be so

closely connected with the event in
issue as to be, in reality, part and
parcel of the same transaction
• The facts are admissible even
though they occurred at different
times and at different places from
place and time of the occurrence of
the fact in issue
• They would be irrelevant but for
the provision in section 6
 Facts forming part of
same transaction. (Res
Gestae)-Illustration

• A is accused of the murder

of B by beating B. Whatever
was said or done by A to B
or the bystanders at the
beating, or so shortly before
or after it as to form part of
the same transaction, is a
relevant fact
• Illustration from Sarkar 12th
edn
 Facts forming part of
same transaction. (Res
Gestae)-Illustration

• A sues B for a libel contained in a

letter forming part of a
correspondence. Letters between
the parties relating to the subject
out of which the libel arose, and
forming part of the
correspondence in which it is
contained, are relevant facts,
though they do not contain the
libel itself
• (http://www.vakilno1.com/bareact
s/indianevidenceact/CHAPTER2/S6.
html)
 Facts forming part of
same transaction. (Res
Gestae)-Case Law

1. Ratten v The Queen [1971]

2. R vs Bedingfield 3 AER 801
at 806.
3. R vs Premji Kurji
4. O’Leary vs R (1946) 73 CLR
566
5. Sidhu (1994) 98 Cr App R 59
 • The accused was charged with murder
by shooting. His defence was that the
Res gun accidentally went off while he was
Gestae cleaning it and the bullet hit his wife
wounding her fatally.
Ratten v • To rebut this defence the prosecution
adduced evidence of a telephone
The operator who heard a conversation
between the deceased and the accused.
Queen In the telephone conversation, the
deceased had stated, ‘get me the police’
[1971] 3 • The statement was admitted as being
intimately connected with the shooting
that occurred immediately thereafter.
 • “When a situation of fact (e.g
a killing) is being considered,
Res the question may arise when
Gestae does the situation begin and
Ratten v when does it end. It may be
The Queen arbitrary and artificial to
[1971] 3 confine the evidence to the
AER 801 at firing of the gun or the
806. insertion of the knife without
knowing in a broader sense,
what was happening.
• Per Lord Wilberforce
 • The accused was charged with the
offense of murder. It was alleged
that at the material time he was in
the same room with the deceased.
Res • The deceased was seen emerging
Gestae from the same room holding his
R vs partly slit throat and heard uttering
the words,’ look what Harry has
Bedingfield done to me’.
• The question was whether this
statement formed part of the same
transaction. It was held that it did
not as the words were uttered
‘after the transaction was all over’
 • The accused was charged with murder.
Evidence was adduced to show that
Res prior to the murder, he had assaulted
Gestae the cousin of the deceased with a dagger
and uttered threats against the deceased
R vs • The conviction was challenged on the
ground that the evidence related to the
Premji commission of a separate offense and
was improperly admitted
Kurji • Held; the too occurrences ( the assault
of the brother to the deceased, the
utterances and the killing of the
deceased, were so closely connected as
to be regarded as part of the res gestae
 Res • A number of men employed in a timber
Gestae camp went on a drunken orgy lasting
several hours, during which a number of
O’Leary serious assaults were committed, and
after which one of their number was
vs R found dying, having himself been
savagely assaulted. On a prosecution of
(1946) 73 one of them for murder, it was held that
the episode should be looked at as a
CLR 566 whole , including the occurrence of the
previous assaults
• (Excerpt from Murphy 12th edn)
 • ‘Without evidence of what, during that
time, was done by those men who took
Res any significant part in the matter and
specifically evidence of the behavior of
Gestae the prisoner, the transaction of which
the alleged murder formed an integral
Dixon J in part could not be fully understood and,
isolated from it, could only be presented
O’Leary v as an unreal and not very intelligible
event’ Per Dixon J quoting Lord
Regina Wilberforce in Ratten v The Queen
[1971] 3 AER 801 at 806
 • The accused was charged
with conspiracy to posses
Res Gestae
explosives in England. It
Sidhu was held that the trial judge
(1994) 98 had rightly admitted a
Cr App R video tape which
59 apparently showed the
accused leading a group of
armed rebels in Pakistan
 • The accused was charged with the
defilement of a child. The child was
unable to give evidence by reason
of her age and her parents testified
on her behalf. The evidence showed
Res that on the material day the child
Gestae came home crying and stated that
Ramadhan she had been assaulted by the
accused. Her father led her by the
Ishmail vs hand to where the accused was and
she positively identified the
R accused saying, ‘ that’s the bwana’.
The court held that the statement
did not form part of that
transaction as there was an
intervention of a long lapse of time
 • 7. Facts which are the occasion,
S7 cause or effect, immediate or
Facts otherwise, of relevant facts or
causing facts in issue, or which
constitute the state of things
or under which they happened, or
caused which afforded an opportunity
by other for their occurrence or
transaction are relevant
facts.
 S7
Facts • These are collateral facts
causing not forming part of the
or same transaction but
caused explain the circumstances
by other surrounding a fact in issue
facts.
 • The question is whether A
robbed B. The fact that shortly
before the robbery, B went to a
public place with lots of money
and showed it or mentioned that
S 7 Facts he had it to a third party are
causing or relevant
caused by • The question is whether A
other murdered B. Marks on the
facts.- ground, produced by a struggle
Illustration at or near the place where the
murder was committed are
relevant facts
• Illustration from Sakar
S 7 Facts
causing
• R vs Brabin & another
or (1947) EACA 80
caused • R vs Premji Kurji
by other • John Makin vs R
facts
Case Law
 • The accused were charged with
corruption by obtaining bribes from
one Hasham Kara in exchange for
R vs some favours. Evidence was
adduced to show that 5 months
Brabin & prior to the incident under inquiry
the accused persons had demanded
another a bribe of Ksh 500 from Kara.
• It was held that the evidence of the
(1947) prior transaction was properly
admitted under s 7 to explain the
EACA 80 state of affairs that existed between
the complainant and the accused
persons
 • 8. (1) Any fact is relevant which
shows or constitutes a motive or
preparation for any fact in issue or
relevant fact.
• (2) The conduct of any party, or of
any agent of a party, to any suit or
S 8 Facts proceeding, in reference to such suit
relating to or proceeding or in reference to any
motive, fact in issue therein or relevant
preparation thereto, and the conduct of any
and conduct person an offence against whom is
the subject of any proceeding, is
relevant, if such conduct influences
or is influenced by any fact in issue or
relevant fact, and whether it was
previous or subsequent thereto.
.
 • (3) When evidence of the
conduct of a person is
relevant any statement made
to him, or in his presence and
Facts hearing, which affects such
relating to conduct, is relevant
motive,
preparation • (4) The word “conduct” in this
and conduct section does not include
statements, unless those
statements accompany and
explain acts other than
statements.
 • A is charged with the murder of B.
The fact that A murdered C and B
knew that A had murdered C and
that B had tried to extort money
S 8 Facts from A by threatening to make his
relating to knowledge public are relevant
motive, • A sues B upon a bond for the
preparation payment of money. B denies having
and conduct made the bond. The fact that at the
time the bond was alleged to have
been made B required money for a
particular purpose, is relevant
• (Illustration from Sarkar)
 • A is accused of a crime. The fact
that, before or at the time of or
after the alleged crime, A
provided evidence which would
tend to give to the facts of the
S 8 Facts case an appearance favorable to
relating to himself, or that he destroyed or
motive, concealed evidence or prevented
preparation the presence or procured the
and conduct
Illustration
absence of persons who might
be witnesses or suborned
persons to give false evidence
respecting it are relevant
• (Illustration from Sarkar)
 • A is tried for the murder of
B by poisoning. The fact
S 8 Facts
that, before the death of B ,
relating to A procured poison similar
motive, to that which was
preparation
and conduct administered on B is
Illustration relevant
• (Illustration from Sarkar)
 • The question is whether A is a
victim of a sexual assault.
• The fact that shortly before the
assault, she made a complaint
S 8 Facts relating to the alleged assault,
relating to
motive,
the circumstances under which
preparation and the terms under which the
and conduct complaint was made are
Illustration relevant
• (Illustration from Sarkar)
 • 9. Facts necessary to explain or
introduce a fact in issue or relevant
fact, or which support or rebut an
inference suggested by such a fact,
or which establish the identity of
any thing or person whose identity
is relevant, or fix the time or place
S9 at which any fact in issue or
Explanatory relevant fact happened, or which
and show the relation of parties by
introductory whom any such fact was
facts, etc
transacted, are relevant in so far as
they are necessary for that
purpose.
 • A is accused of a crime. The fact that
soon after the commission of the
crime A absconded from his house is
relevant under section 8 as showing
conduct subsequent to the fact in
issue. The fact that at the time when
he left home, he had sudden and
S9 urgent business at the place where
Explanatory he went is relevant as showing that
and he left his house suddenly. The
introductory details of the business are irrelevant
facts, etc- except so far as they show that the
Illustration business was sudden and urgent
• (Illustration from Sarkar)
 • 10. Where there is reasonable
ground to believe that two or more
persons have conspired together to
commit an offence or an actionable
S 10 wrong, anything said, done or
written by any one of such persons
Statements in reference to their common

and actions
intention, after the time when such
intention was first entertained by

referring to
any one of them, is a relevant fact as
against each of the persons believed

common
to be so conspiring, as well for the
purpose of proving the existence of

intention.
the conspiracy as for the purpose of
showing that any such person was a
party to it.
 • A is accused of treason. The fact
that immediately before some
treasonous act, A procured arms
S 10 illegally, recruited soldiers,

Statements
fundraised from politicians
opposed to the government,
and actions renewed his passport which had
expired many years ago, secured
referring to a visa to travel out of the
country to a country that dos not
common extradite for political offenses,
intention.
disposed of all of his property,
or took his immediate family to a
Illustration foreign land
• (Illustration from Sarkar)
 • R vs Gokaldas Kanji
S 10 1949) EACA 116
Statements • Stanley Musinga vs
and actions R (1951) 18 EACA
referring to 211
common • R VS Patel B N 1957
intention EA 416
Case Law
 • The accused persons
S 10 were charged with
conspiracy. There was
R vs no direct evidence of
Gokaldas conspiracy
• The court held that
Kanji 1949) conspiracy may be
EACA 116 inferred from facts
which raise a
presumption of a
common plan
 • Stanley Musinga vs
S 10 R (1951) 18 EACA
211
Stanley • R VS Patel B N 1957
Musinga vs EA 416
R (1951) 18 • A person who joins
EACA 211 a conspiracy is
responsible for the
acts of the
conspirators
 • 11. Facts not otherwise
relevant are relevant–
• (a) if they are inconsistent
S 11 Facts with any fact in issue or
inconsistent
with, or relevant fact; or
affecting • (b) if by themselves or in
probability
of, other connection with other facts
facts they make the existence or
non-existence of any fact in
issue or relevant fact highly
probable or improbable
 • A is accused of a crime
• The fact that at the time of
S 11 Facts
inconsistent the commission of the
with, or crime he was at or near the
affecting
probability
crime scene is relevant
of, other • The fact that he was a long
facts-
Illustration distance away from the
crime scene is relevant
• (Illustration from Sarkar)
 S 12 • 12. In suits in which
Facts damages are claimed,
any fact which will
affecting enable the court to
quantum determine
amount of damages
the

of which ought to be
damages awarded is relevant
 13. Where the existence of any right or
custom is in question, the following facts
S 13 are relevant–

Facts (a) any transaction by which the right or

affecting custom in question was created, claimed,
modified, recognized, asserted or denied,
existence or which was inconsistent with its
existence; or
of right or
custom (b) particular instances in which the right
or custom was claimed, recognized or
exercised, or in which its exercise was
disputed, asserted or departed from.
 • 14. (1) Facts showing the
existence of any state of mind,
such as intention, knowledge,
good faith, negligence,
rashness, ill-will or good-will
towards any particular person,
S 14 or showing the existence of any
Facts state of body or bodily feeling,
showing are relevant, when the
state of existence of any such state of
mind or body or bodily feeling
mind or
is in issue or relevant.
feeling
 (2) A fact relevant within the
meaning of subsection (1) as
S 14 showing the existence of a state
of mind must show that the state
Facts of mind exists, not generally, but
in reference to the particular
showing matter in question.

state of (3) Where, upon the trial of a

person accused of an offence,
mind or the previous commission by the
accused of an offence is relevant
feeling within the meaning of subsection
(1), the previous conviction of
such person is also relevant
 A is accused of receiving stolen
goods knowing them to be
stolen. It is proved hat he was
S 14 in possession of the stolen
Facts article. The fact that , at the
showing same time, he was in
state of possession of many other
stolen articles is relevant as
mind or tending to show that he knew
feeling each and all of the articles of
Illustration which he was in possession to
be stolen
 Mohammed Saed
S 14 Akrabi 1956 EACA 512
Facts
showing R VS Makindi
state of
mind or
feeling Allan Godfrey vs R
Case Law 1947 LLR 44
 The accused was charged with the
use of criminal force with intent to
outrage modesty. The accused, a
S 14 head of an educational institution
was accused of rubbing the hands of
Facts showing two students against his pennis
state of mind
or feeling. The prosecution sought to adduce
Mohammed evidence from two other boys from
the same institution who had had
Saed Akrabi similar experiences with the accused
on previous occasions. The evidence
1956 EACA 512 was admitted to show the accused
had committed the acts complained
of with criminal intent
 When there is a question whether an act was
accidental or intentional, or done with a
particular knowledge or intention, the fact
that such act formed part of a series of
similar occurrences, in each of which the

S 14
person doing the act was concerned, is
relevant.
Facts
showing
system
Illustration
Illustration from Sarkar
 Facts showing a system can
constitute Similar fact
evidence (SFE) and can be
S 14 used to

Facts • Prove a state of mind see Noor

Mohammed vs 1949 ALL ER 365, R

showing
vs Bond 1906 2 KB 389, R vs
Armstrong 1922 2 KB 555, Achieng

system
vs R
• To show the identity of the
perpetrator Harris vs DPP 1952 AC
694, R vs Straffen 1952 2 QB 911
• To prove the commission of the act
R vs Smith 1915 11 Cr App Rep 229
 Makin v AG for NSW (1894) AC57 The baby
harvester (gardener)
R vs Bond 1906 2 2 KB 389 The abortion case

S 14 R vs Smith 1915 11 Cr App Rep 229 The bath

tab deaths
Facts R vs Armstrong 1922 2 KB 555 Arsenic

showing
poisoning
Noor Mohammed vs 1949 ALL ER 365
system
Case Law
Harris vs DPP 1952 AC 694 The police burglar

R vs Straffen 1952 2 QB 911 The borstal

escapee
DPP vs Boardman 1974 3 ALL ER 87
 A couple was charged with the murder of
an infant who had been entrusted to
them by the mother for adoption for a
S 14 small consideration. The child was never
seen again. The remains of the child were
Facts found buried in the couples garden
showing dresses exactly as she was the day she
was adopted by the couple
system
Makin v AG The prosecution sought to adduce
evidence from eleven other persons
for NSW whose children had mysteriously
(1894) AC57 disappeared under similar circumstances
and whose remains were dug up from the
Case Law same garden
 The defense objected to the
admissibility of the evidence in
respect of the eleven
S 14 disappearances as the couple
Facts were not charged in respect of
showing the same
system
Makin v AG The evidence was held
admissible to exclude the
for NSW
possibility that the infant died
(1894) AC57 of natural causes
 • The appellant, was a police officer who
S 14 was charged with eight counts of
breaking into certain shops and stealing
Facts sums of money from the shops. In each
of the occasions, only part of the money
showing was stolen and the same means of
system breaking and stealing were used. In each
of the occasions, the accused was the
Harris vs only police officer on patrol. On all the
DPP
occasions he was in uniform. There was
no direct evidence linking him with the
1952 AC first seven incidents of theft
• Held, the evidence of what happened in
694 the seven previous occasions was
admissible
 S 14
Facts • Harris v Director of Public Prosecutions
HL 1952
showing • The House discussed the principle laid
system down in Makin’s case as to the
admission of similar fact evidence.
Harris vs • Held: After approving the case, Lord
DPP Simon said: ‘It is, I think, an error to
attempt to draw up a closed list of the
1952 AC sort of cases in . .
694
 • 16. When there is a question
whether a particular act was done,
the existence of any course of
S 16 business, according to which it
naturally would have been done, is
Facts relevant.
showing • Cf s 119 presumption of likely facts ‘
The court may presume the
course existence of any fact which it thinks
of likely to have happened, regard
being had to the common course of
business natural events, human conduct and
public and private business, in their
relation to the facts of the
particular case.
 • In well established businesses or
offices or firms, books are kept or
business is conducted in such lines
S 16 or principles that when the doing of
an act comes into question, it may
Facts be reasonably inferred that the
showing
uniformity of the general course of
business was followed in the
course particular case.
of • Per Sarkar 12th edn PP 175
• Proof of the general course of
business business raises the probability that
the particular act was done in
accordance with that course of
business
 • Some examples
1. The course of business in
established organizations
2. The course of business in public
S 14 offices
3. The accuracy of scientific
Facts instruments
showing 4. The handling of letters for
postage
course 5. The accuracy of legislative
of processes
business • The key word is regularity of habit.
Must be so habitual as to displace
the possibility of a departure from
the habit
 • These things being proven,(evidence
being given of a bookkeeper’s custom of
handing over collateral notes to the
teller as indicating that it was done in
this instance) the presumption arises
S 16 therefrom that the usual course of
Sherwood business was pursued in this particular
instance. Everyone is presumed to
J in govern himself by the rules of right
Mathias reason and consequently that he acquits
himself of his engagement and duty…
vs O'Neil Whenever it is established that an act is
94 Mo 527 the usual concomitant of another, the
latter being proved, the former is
presumed, for this is in accord with the
experience of common life. It is simply
ascertaining one fact from the existence
of another
END OF TOPIC 2

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