Lesson 3-Relevance and Admissibility

LESSON THREE: RELEVANCE, ADMISSIBILITY
& WEIGHT OF EVIDENCE

• ©MUTHOMI THIANKOLU
 Lecturer, University of Nairobi School of Law

 Advocate of the High Court of Kenya
 Partner, Muthomi & Karanja Advocates
• University of Nairobi School of Law (LLB II Class)

• Saturday, September 27, 2014
• *NOTE: Students are strongly advised that this
presentation is not a substitute for attending lectures or
reading the cases and materials set out in the Course
Outline.
LESSON THREE: RELEVANCE,
ADMISSIBILITY & WEIGHT OF
EVIDENCE
• Outline of Lesson:
1. Meaning of “relevance” and
“admissibility.”
2. General rule as to relevance and
admissibility.
3. Examples of relevant but inadmissible
evidence.
4. Sections 5-16 of the Evidence Act
5. res gestae (facts forming part of the same
transaction).
6. similar facts Evidence.
7. Evidence obtained through Illegal, Unfair
MEANING OF “RELEVANCE” AND
“ADMISSIBILITY”
• The best definition of “relevancy” is arguably
that given by Lord Simon in DPP v Kilbourne
[1973] A.C. 729 at 756:
• “evidence is relevant if it is logically
probative or disprobative of some matter
which requires proof.”
– The respondent was convicted of buggery and
indecent assault on two groups of boys, the
attacks on the respective groups occurring a
year apart.
“ADMISSIBILITY”
• The main question was whether
uncorroborated evidence of second group of
boys was admissible in support of the
evidence of the first group of boys.
• The respondent had, in response to the
charges, pleaded the defence of “innocent
association.”
• It was held (on appeal) that the evidence of the
second group of boys was relevant and
admissible because it was probative of the
facts in dispute and indicative of the guilt of
“ADMISSIBILITY”
• Evidence is deemed relevant, therefore, if it
makes a matter which requires proof (a fact
in issue) more or less probable.
• Under the exclusionary rules of the law of

evidence, evidence must be sufficiently
relevant to be admissible. Put differently,
courts are usually only concerned with
relevant evidence.
“ADMISSIBILITY”
• Although the terms “relevance” and
“admissibility” are often used together, and
sometimes even interchangeably, therefore,
they refer to different things.
• Put differently, logical relevancy and legal

relevancy (or admissibility) are not
conterminous.
“ADMISSIBILITY”
• To illustrate, the law in some cases rejects as
the basis of an inference matters which logic
might accept (e.g. evidence of disposition). In
other cases, the law prescribes as conditions
of legal proof arbitrary requirements which
have no logical bearing on the issue in
controversy (e.g. search before proof of
secondary evidence of private documents).
“ADMISSIBILITY”
• Although logical relevance is not
conterminous with legal relevance (or
admissibility), the law will, in the majority of
cases, accept as evidence those matters
which are indicated as such by the ordinary
course of human experience.
GENERAL RULE WITH REGARD TO
“RELEVANCE” AND “ADMISSIBILITY”
• The general rule with regard to relevance and
admissibility is that:
– “all evidence that is sufficiently relevant to
an issue before the court is admissible and
that all that is irrelevant, or insufficiently
relevant, should be excluded” __ see Cross
& Taper, at p. 64. See also Hollington v F.
Hewthorn & Co Ltd [1943] 2 All ER 35 at 39:
– “nowadays, it is relevance and not competency
that is the main consideration; and, generally
speaking, all evidence that is relevant to an
issue is admissible, while all that is irrelevant is
excluded.”
• NB: the main issue was whether the defendant’s
conviction for driving without due care and
attention was relevant in civil proceedings for
negligence. It was held that the criminal
conviction was not relevant.
• Due to the exclusionary character of the law of
evidence, the general rule that all relevant evidence is
admissible is subject to numerous exceptions,
because:
• “our law undoubtedly excludes evidence of many
matters which anyone in his own daily affairs of
moment would regard as important in coming to a
decision ”__Per Darling J. in R v Bond [1906] 2 KB 389
at p. 410.
• The following are the most frequently occurring
1. Hearsay: NB subject to certain exceptions, to be
specifically studied in Lesson 8.
2. Opinion: Witnesses are generally not allowed to

inform the court of the inferences they draw
from facts perceived by them. They must
confine their testimony to an account of such
facts. In Hollington v F. Hewthorn & Co Ltd
[1943] 2 All ER 35 at 40, for instance, Goddard
LJ stated that:
• “It frequently happens that a bystander has a complete
and full view of an accident; it is beyond question that
while he may inform the court of everything that he saw,
he may not express any opinion on whether either or
both parties were negligent. The reason commonly
assigned is that this is the precise question the court has
to decide; but in truth it is because his opinion is not
relevant. Any fact that he can prove is relevant, but his
opinion is not. The well-recognized exception in the case
of scientific or expert witnesses depends on
considerations which, for present purposes, are
immaterial.”
3. Character: generally, evidence that the accused is
of bad character is irrelevant (more on this in
Lesson 10).
4. Conduct on Other Occasions: Generally, evidence
may not be given of a party’s misconduct on other
occasions if its sole purpose is to show that he is
a person likely to have conducted himself in the
manner alleged by his adversary on the occasion
under inquiry.
SECTIONS 5-16 OF THE EVIDENCE ACT ON
RELEVANCE AND ADMISSIBILITY
• The Evidence Act contains some
important rules on relevance and
admissibility, at sections 5-16 (inclusive).
• Section 5 sets out the general rule on
relevance and admissibility while the
other sections address relevancy and
admissibility of certain types of evidence.
• We highlight some of the rules in the
ensuing parts of this presentation.
SECTION 5 OF THE EVIDENCE ACT ON
• Section 5 of the Evidence Act provides-
– “Subject to the provisions of this Act and of
any other law, no evidence shall be given in
any suit or proceeding except evidence of the
existence or non-existence of a fact in issue,
and of any other fact declared by any
provision of this Act to be relevant.”
• Facts which, though not in issue, are so
connected with a fact in issue as to form part
of the same transaction , whether they
occurred at the same time and place or at
different times and places
• In Nguku v Republic [985 KLR 412,
evidence had been given that the
appellant, being a police officer involved
in the investigation of a theft in which the
complainant was implicated, solicited and
received a bribe from the complainant on
the promise that he (the appellant) would
“clear” the case.
• The Appellant argued (inter alia) the events
alleging the soliciting of a bribe by the
appellant were inadmissible as amounting to
evidence of bad character (soliciting a bribe)
in the course of his trial for a different
offence (receiving a bribe).
• Held (inter alia): The events involving the
soliciting of a bribe by the appellant were
sufficiently connected with the facts in issue,
namely the events involving the receiving of
the bribe, as to form part of the same
transaction and the evidence of both of
those events was admissible.
• Facts which are the occasion, cause or
effect, immediate or otherwise, of relevant
facts or facts in issue, or which constitute
the state of things under which they
happened or which afforded an
opportunity for their occurrence or
transaction.
• Any fact which shows or constitutes a motive
or preparation for any fact in issue or relevant
fact.
– See Republic v Nyamawi & Another, Malindi
Crim. Case No. 6 of 2003 [2005 eKLR, on
statements showing the 2nd accused’s
motive in killing the deceased—the 2nd
accused had threatened to “finish” the
deceased for testifying against him in
• 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 at which any fact in issue or
relevant fact happened, or which show the
relation of parties by whom any such fact was
transacted.
5. Statements and actions referring to common
intention with respect to any conspiracy
(section 10)
• NB: Statements made by a conspirator
who is acquitted are inadmissible as
against a co-conspirator.
– See Asira v Republic [1986] KLR 227, where
a bank official charged together with the
appellant had been acquitted of conspiracy
and the appellant convicted in respect of the
same conspiracy, involving stealing a
cheque and enchasing it at the bank.
SECTIONS 11-16 OF THE EVIDENCE ACT ON
• Facts inconsistent with or affecting the probability
of a relevant fact or a fact in issue (section 11);
• Facts affecting the existence of a right or custom
(section 13);
• Facts showing statement of mind or feeling (e.g.
intention, negligence, ill-will etc) towards a
particular person, when such statement of mind or
feeling is in issue or relevant (section 14);
• Facts showing whether an act was accidental or
intentional or done with a particular knowledge or
intention, where such formed part of a series of similar
occurrences, in each of which the person doing the act
was concerned (section 15); and
• Facts showing that a particular act was done in the
ordinary course of business (section 16).
THE DOCTRINE OF RES GESTAE
• A fact may be relevant to a fact in issue
because it throws light on it by reason of
proximity in time, place, or circumstances.
• Where this is so, the relevant fact is said to
be part of the res gestae.
• “res gestae” simply means a transaction.
• The doctrine of res gestae is mainly
concerned with the admissibility of
statements made contemporaneously with
the occurrence of some act or event into
which the court is inquiring.
• Historically, the doctrine of res gestae,
which is inclusionary in nature, was
developed as an exception to and to
mitigate the injustice and inflexibility of the
(exclusionary) rule against hearsay.
• In order to be admissible as part of the res
gestae, the words sought to be proved by
hearsay evidence should be, if not
absolutely contemporaneous with the
action or event in issue, at least be—
– “so clearly associated with it in time, place
and circumstances, that they are part of the
thing being done, and so an item or part of
real evidence and not merely a reported
statement.” __ Teper v R [1952] A.C. 480
• See also R v Bedingfield (1879) 14 Cox C.C.
341, where attempts to adduce a hearsay
statement as part of res gestae failed because
the statement in question had been uttered
after the transaction in question (the slitting of
a woman’s throat) “was all over.”
JUSTIFICATION/RATIONALE FOR ADMISSION OF
HEARSAY EVIDENCE UNDER THE DOCTRINE OF RES
GESTAE
• The justification for the reception of hearsay

evidence under the doctrine of res gestae is
the light which hearsay statements admitted
under the doctrine shed upon the act or event
in issue. In its absence and taken in isolation,
the act or event in issue may not be fully
understood and may even appear meaningless,
inexplicable and unintelligible:
JUSTIFICATION/RATIONALE FOR ADMISSION OF
HEARSAY EVIDENCE UNDER THE DOCTRINE OF RES
GESTAE
• “the rule [against the admission of hearsay
evidence] admits of certain carefully
safeguarded and limited exceptions, one of
which is that words may be proved when
they form part of the res gestae…It appears
to rest ultimately on two propositions, that
human utterance is both a fact and a means
of communication, and that human action
may be so interwoven with words that the
significance of the action cannot be
understood without the correlative words,
and the dissociation of the words from the
action would impede the discovery of
THE DOCTRINE OF RES GESTAE: STATUTORY
RECOGNITION
• The evidence Act contains provisions that
approximate the common law doctrine of res
gestae, namely—
– Section 6 (statements which, though not in
issue, were part of the same transaction as
the fact in issue. NB: s. 6 goes beyond res
gestae to the extent that it permits
admission of facts occurring at different
times and places from the fact in issue); and
– section 33 (a) (statements by a deceased
person relating to the cause of their death).
RECOGNITION
• Under Section 33 of the Evidence Act,
statements, written or oral, of admissible
facts made by a person who is dead, or who
cannot be found, or who has become
incapable of giving evidence or whose
attendance cannot be procured without an
amount of delay or expense which in the
circumstances of the case appears to the
court unreasonable, are themselves
admissible in the following cases—
RECOGNITION
• “(a) When the statement is made by a person
as to the cause of his death, or as to any of the
circumstances of the transaction which
resulted in his death, in cases in which the
cause of that person’s death comes into
question and such statements are admissible
whether the person who made them was or
was not, at the time when they were made,
under expectation of death, and whatever may
be the nature of the proceeding in which the
cause of his death comes in question.”
• (b)…
THE DOCTRINE OF RES GESTAE: SELECTED
ILLUSTRATIVE CASES (R V BEDINGFIELD [1879] 14
COX C.C. 341)
• In R V BEDINGFIELD, a woman run out of her
estranged boyfriend’s with a cut throat saying “see
what Harry (Bedingfield) has done to me.”
• A question arose as to whether this (hearsay)
statement was admissible in evidence.
• Cockburn J. held that the statement was not part
of the transaction because it was uttered after the
transaction was “all over.” Accordingly, the judge
held, the statement was not part of the res gestae.
• NB: The correctness of the Bedingfield decision is
highly contestable, and would today not stand in
view of the provisions of sections 6 and 33 (a) of
the Evidence Act.
ILLUSTRATIVE CASES (R V RAMADHANI ISMAEL
[1950] ZLR 100)
• In R v Ramadhani Ismael, a girl who had
allegedly been raped by the accused unlocked
the door and ran to her parents’ house, which
was only a few steps from the accused’s
house, immediately after the ordeal.
• The girl held her father’s hand, took him to the
accused’s house and pointed to the accused
person saying, “daddy, this is the Bwana.”
• An issue arose as to whether the girl’s
statement was part of the transaction (i.e. the
rape).
• Held: (following R v Bedingfield) the statement
was not part of the transaction.
ILLUSTRATIVE CASES (R V PREMJI KURJI [1940]
E.A.C.A. 58)
• In R v Premji Kurji, the accused was charged
with murder. He had been found standing over
the deceased’s body, with a dagger dripping
with blood.
• The prosecution adduced evidence that a few
minutes before, the accused had been seen
assaulting the deceased’s brother with a
dagger and said words to the effect “I have
finished with you, I am now going to deal with
your brother.”
• The question was whether this statement was
admissible as forming part of the transaction
(i.e. the murder).
ILLUSTRATIVE CASES (TEPER V R [1952] A.C. 480
• In Teper v R, the appellant had been charged

with maliciously and with intend to defraud
setting fire to a shop belonging to his wife,
which he had insured at an inflated value and
in which he carried on the business of a dry
goods store.
• There was no direct evidence identifying the
appellant had set the shop on fire. A police
constable testified, for purposes of
identification of the accused (as the arsonist),
that:
• “I heard a woman’s voice shouting, ‘your

place burning and you going away from the
fire’; immediately then a black car came from
the direction of the fire, and in the car was a
fair man resembling the accused. I did not
observe the number of the car. I could not see
the fire from where I was standing.”
 The issue was whether the hearsay evidence of

the woman’s utterances (going to identification)
were part of the transaction (i.e. the arson) and
hence admissible under the doctrine of res
gestae.
 Held: (inter alia) the words spoken by the

woman did not form part of the res gestae and
were not therefore excepted from the
ILLUSTRATIVE CASES (R V RATTEN [1972] A.C. 378)
• In R v Ratten, the accused was charged with

the murder of his wife. His defence was that he
was cleaning his gun and it accidentally went off,
mortally injuring his wife.
• There was nobody at the scene of crime.
• The prosecution sought to tender evidence of a
girl who worked at a telephone exchange who
said that a distressed woman had placed a call
from the accused’s house at about the time of
the murder.
• The accused protested that the evidence
constituted inadmissible hearsay.
ILLUSTRATIVE CASES (R V RATTEN [1972] A.C. 378
• The girl further testified that the woman was
begging to have the police called over and before the
operator could link the woman with the police, the
phone hang up on the woman's side.
• The prosecution sought to adduce the telephone
girl’s testimony as evidence of a commotion during
which the accused killed his wife.
• Held: (criticising the decision in R v Bedingfield)
The evidence of the telephone operator was
admissible as it was not hearsay. Even if it was
hearsay, the evidence would be admissible under the
doctrine of res gestae.
• Moreover, the evidence of the telephone operator
contradicted the evidence of the accused to the
effect that the only telephone cal outside his house
at the material time was a call from an ambulance.
ILLUSTRATIVE CASES
• NB: Although the doctrine of res gestae

normally arises in criminal cases, it is also
applicable to civil cases.
– See Holmes v Newman [1931] 2 Ch. 112, where

the doctrine was applied to a civil dispute in
relation to statements made by a deceased
person against their proprietary interest in a
building.
SIMILAR FACTS EVIDENCE
• Generally, evidence that a person has a

disposition or propensity towards
wrongdoing, or of specific acts of
misconduct, which may or may not have
resulted in previous convictions, is
inadmissible if the sole reason the
evidence is sought to be adduced is to
show that he is likely to have behaved in
the same manner on the occasion in
question.
• The rationale for the general rule,
1.First, admitting such evidence would be unfair

to the accused person;
2.Second, admitting such evidence would cause
undue prejudice to the accused; and
3.Thirdly, admitting such evidence would
effectively increase the burden the accused
person has when they come to court, as he
would have to defend his entire life.
• NB: Similar facts evidence may be adduced (inter

alia)—
1. if it has a substantial connection with the facts
in issue (but it cannot be led merely to show a
connection);
2. where the issue is whether the acts charged
against the accused were designed or
accidental;
3. to rule out defences that may be available to the
accused such as honest intention or lack of
knowledge.
– NB: Even where similar facts evidence is
admissible, the judge still retains a discretion to
exclude it if it is prejudicial to the accused person.
SIMILAR FACTS EVIDENCE: SECTION 15 OF THE
EVIDENCE ACT
• Section 15 of the Evidence Act provides:-

–“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 person doing the act was
concerned, is relevant.”
SIMILAR FACTS EVIDENCE: ILLUSTRATIVE
CASES
• In John Makin & Sarah Makin v Attorney
General for New South Wales [1893] A. C.
57, Mr. and Mrs. Makin were convicted of
the murder of an infant named Amber
Murray, whom they had adopted.
• The Appellants had represented to the
mother of the infant that they wished to
adopt it as their own child, but they did not
mind receiving a small premium of £3.
CASES
• The mother of the infant gave them the child
upon payment of the premium . The premium
was insufficient for the support of the child,
except for a limited period.
• The Makins pleaded that they had had a bona
fide intention to adopt the baby, and that it
had died accidentally.
• There was no direct evidence to show that
they had murdered the deceased infant.
CASES
• To counter the defences of bona fide adoption and
accidental death, the prosecution adduced evidence
that—
1. the Makins had adopted several other babies
under similar circumstances (for a small
fee/premium) whom they could not account for;
and
2. bodies of several other infants had been found
buried (in a similar manner as the body of Amber
Murray) at the backyards of three residences
previously occupied by the Makins.
• The Makins appealed against conviction, arguing
that the trial judge had erred in admitting evidence of
the finding of other bodies than the body of the child
CASES
• Held ( by Lord Herschell LC, at p. 65):
1. It is not competent for the prosecution to
adduce evidence tending to show that the
accused has been guilty of criminal acts
other than those covered by the
indictment, for the purpose of leading to
the conclusion that the accused is a
person likely from his criminal conduct or
character to have committed the offence
for which he is being tried.
CASES
2. The mere fact that the evidence adduced
tends to show the commission of other
crimes does not render it inadmissible if it
be relevant to an issue before the jury, and it
may be so relevant if it bears upon the
question whether the acts alleged to
constitute the crime charged in the
indictment were designed or accidental, or
to rebut a defence which would otherwise
be open to the accused.
CASES
3. Their Lordships “cannot see that it was
irrelevant to the issue to be tried by the jury
that several other infants had been received
from their mothers on like representations,
and upon payment of a sum inadequate for
the support of the child for more than a very
limited period, or that the bodies of infants
had been found buried in a similar manner in
the gardens of several houses occupied by
the prisoners.”
SIMILAR FACTS EVIDENCE:
ILLUSTRATIVE CASES
The significance of the Makin case is that
it attempted to delimit the scope for
admissibility of similar facts evidence.
The thrust of the judgment is that similar
facts evidence cannot be adduced just to
show disposition.
ILLUSTRATIVE CASES
Two important questions arise from the second
holding in the Makin case, namely-
1. Whether the prosecution should wait until a
defence is raised or whether the prosecution
could raise similar facts evidence even before
the defence is raised (answered in the negative
by Viscount Simons in Harris v DPP [1952] A.C.
694 and Sinclair VC in Mohammed Saeed Akrabi
v R [1956] 23 EACA 512); and
2. Whether the Makin case provides an exhaustive
list of circumstances under which similar fact
evidence is admissible (also answered in the
negative by Viscount Simmons in in Harris v
ILLUSTRATIVE CASES
In Mohammed Saeed Akrabi v R [1956] 23 EACA
512, two boys, aged 9 and 11 years respectively,
had testified on oath that the Appellant, who was
the headmaster of the school they attended, had
taken hold of their hands without their consent
and rubbed them up and down against his penis.

ILLUSTRATIVE CASES
The children testified that the offences took
place when they went to the appellant’s office to
change exercise books.
The prosecution called three other boys from
the same class who gave evidence that the
appellant had on previous occasions done
exactly the same to them as he was alleged to
have done to the complainants.
The trial magistrate admitted this evidence
under sections 14 and 15 of the Aden Evidence
Ordinance (similar to our section 15?) to show
ILLUSTRATIVE CASES
The trial magistrate, having satisfied himself that
the children understood the nature of an oath,
and that their evidence was “utterly and entirely
truthful,” convicted the appellant on two counts
of use of criminal force with intent to outrage
modesty.
The evidence of the children was not

corroborated.
ILLUSTRATIVE CASES
The appellant challenged the conviction, arguing
that—
1. the conviction could not stand on the
uncorroborated evidence of two young boys
even though the magistrate had warned
himself of the danger of acting on their
uncorroborated evidence;
2. evidence of other offences of a similar nature
which were not charged should not have
been admitted; and
ILLUSTRATIVE CASES
3. Although the trial magistrate stated in his
judgment that he would have convicted
even without the evidence of the other
offences not charged, he could not have
failed to have been influenced by it in
arriving at his conclusion as to the guilt of
the appellant (NB: the Makin court declined
to deal with the issue of whether the
conviction would have stood without the
similar fact evidence, having already found
that the evidence was admissible).
ILLUSTRATIVE CASES
Held:
1. while it is a sound rule in practice not to
act on the uncorroborated evidence of a
child, this is a rule of practice and not of
law;
2. evidence of similar offences not charged
is admissible where there are reasonable
grounds for expecting that the accused
will set up a defence of accident or
mistake.
ILLUSTRATIVE CASES
From the foregoing, it is clear that similar facts
evidence could be raised in anticipation of a defence
that would otherwise be available to the accused,
and that the prosecution need not await until the
defence is actually pleaded. This can also be
confirmed from the speech of Lord Simmons in
Harris v DPP [1952] A.C. 694 (quoted at p. 515 of the
Mohammed Saeed Alkrabi case) that:
ILLUSTRATIVE CASES
“the substance of the matter appears to me to be that the
prosecution may adduce all proper evidence which tends
to prove the charge. I do not understand Lord
Herschell’s words (in Makin’s case) to mean that the
prosecution must withhold such evidence until after the
accused has set up a specific defence which calls for
rebuttal. Where, for instance, mens rea is an essential
element in guilt, and the facts of the occurrence which is
the subject of the charge, standing by themselves, would
be consistent with mere accident, there would be nothing
wrong in the prosecution seeking to establish the true
situation by offering, as part of its case in the first
instance, evidence of similar action by the accused at
another time which would go to show that he intended to
do what he did on the occasion charged and was us
ILLUSTRATIVE CASES
 NB:
 as stated, even where similar facts evidence
is admissible, the court has discretion to
disallow it if its prejudicial effect outweighs
its probative value.
 In summary, admissible similar facts
evidence falls into three categories
depending on what it is directed towards,
namely to show state of mind or motive,
identity of the perpetrator of an act and
whether the act is just a mere coincidence,
act of nature or miracle.
SIMILAR FACTS EVIDENCE: State of
mind or Motive
 In R v Francis [1874] L. R. 128, the accused
was charged with attempting to obtain
money by false pretences, by representing a
certain ring to be a diamond ring.
 In defence, he said that he had no

knowledge that the ring he was purporting
to sell was not a diamond ring and was
worthless.
mind or Motive
 Held: Evidence that two days prior to the
event in issue the accused had obtained an
advance from a pawnbroker upon a chain
which he represented to be a gold chain, but
which was not so, and endeavoured to
obtain from other pawnbrokers advances
upon a ring which he represented to be a
diamond ring, but which, in the opinion of
witnesses was not so, was relevant to rebut
his defence of lack of knowledge.
mind or Motive
 In R v Bond [1969] 2 K.B. 389, a doctor was
charged with using some instruments on a
woman with the intent to procure an abortion. He
denied the intent, saying he was using the
instruments to examine the woman.
 The prosecution sought to adduce evidence that
Dr. Bond had previously used the same
instruments on another woman occasioning an
abortion and the girl on whom he was accused of
using the instruments on testified that he had
told her words to the effect that he had made
dozens of girls happy and could do the same to
her.
mind or Motive
 The defence protested that this evidence
was prejudicial and irrelevant.
 Held: The evidence was admissible
because it showed the doctor’s intention
in purporting to examine the woman and
rebutted his assertion that he was using
the instruments to examine the woman.
mind or Motive
 In R v Armstrong, the accused was charged with
murdering his wife by administering arsenic
poison, which was found in his house tied up in
packets containing fatal doses.
 In defence, the accuse declaimed that he used
the position to kill weeds as a gardening aid.
There was no evidence that he had actually
administered the poison on his wife.
 The prosecution sought to lead evidence that a
few weeks after the accused’s wife’s death, he
had attempted to murder another man by giving
him arsenic poison.
mind or Motive
 Held: The fact that the accused was
subsequently found not merely in
possession of but actually using for a
similar deadly purpose the very poison
that caused the death of his wife was
evidence from which the jury might infer
that the poison was not in his possession
at the earlier date (i.e. the date of his
wife’s death) for an innocent purpose.
SIMILAR EVIDENCE:
FACTS
Identification of Perpetrator of An
Offence
 Where it is shown that a particular act has been done
but it is not certain who did it, similar facts evidence
may help in identifying the perpetrator where the act
in issue is part of a series of strikingly similar acts
done in a similar manner.
 The best illustration of the rule is perhaps the
decision in R v Straffen [1952] 2 Q.B. 911 (CA). On
Apr. 29, 1952, the appellant escaped from a mental
hospital for four hours.
 The next day, the dead body of a young girl was
found on the roadside, indicating that she had died
from manual strangulation. Medical evidence
showed that her death had taken place during the
period the appellant was at large.
Offence
 It was established that straffen had strangled
two girls at a different place two months earlier
and also left their bodies by the roadside.
 When the police went to interview Straffen, he
said “I did not kill the girl.”
 He was convicted on the basis of the evidence of
the manual strangulation of the other two girls,
and the striking similarity between the manner in
which they had been killed and dumped and the
manner in which the girl in question had been
killed and dumped.
 He appealed.
Offence
 Held: “when a person charged with an
offence enters a general plea of not guilty to
the change, such plea involves an in issue
of identity and evidence is accordingly
admissible of other offences previously
committed by the accused which, from the
similarities between the circumstances in
which they were committed and the method
employed I their commission and those of
the offence with which the accused person
is then changed, tend to establish that they
were committed by the same individual”.
SIMILAR FACTSEVIDENCE: Proof of
the Commission of an Offence
 Similar facts evidence may be adduced to proof
the commission of an offence where it is not
clear whether the act in issue was done or
happened by accident or design, miracle or just
mere coincidence.
 In R v Smith (1915), 11 Cr. App. R 229, Mr. Smith
married his first wife and insured her life, the
policy being in his favour. He made a
representation to his personal doctor that his
wife was epileptic.
 A few months later, the first wife’s dead body
was found floating the bath tap and a few moths
later the insurance policy was paid out.
 Smith subsequently married two more women,
taking an insurance policy in his favour against
the life of each, and each of whose dead body
was subsequently found floating in the bath tub.
 Mr. Smith was charged with murdering the first
wife on the basis of the subsequent deaths of
wives 2 and 3 in similar circumstances.
 Held: the coincidence was too fantastic to be
credible. The evidence of the death of the other
women was admissibly because it ruled out the
possibility that the drowning of the deceased
was an accident.
 The following dictum (by Lord Reading CJ
(at p. 233), explaining why the evidence of
the deaths of the other women was
admissible) is quite illustrative:
 “If you find an accident which benefits a person
and you find that the person has been
sufficiently fortunate to have that accident
happen to him a number of times, benefitting
him each time, you draw a very strong,
frequently irresistible inference that the
occurrence of so many accidents benefiting him
is such a coincidence that it cannot have
happened unless it was design”
ILLEGALLY & UNFAIRLY OBTAINED OBTAINED
EVIDENCE
1. The mandatory inclusionary approach at

common law:
 (R v Leatham; Kuruma s/o Kaniu v R; R v
Sang etc)
 Apparent change of direction in Mohammed
Nur Koriow v Attorney General & other
recent cases
 Article 50 (4) of the Constitution of Kenya,
2010
2. The mandatory exclusionary approach in

Lesson 3-Relevance and Admissibility

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LESSON THREE: RELEVANCE, ADMISSIBILITY

& WEIGHT OF EVIDENCE

 Lecturer, University of Nairobi School of Law

• University of Nairobi School of Law (LLB II Class)

• Under the exclusionary rules of the law of

• Put differently, logical relevancy and legal

2. Opinion: Witnesses are generally not allowed to

• The justification for the reception of hearsay

• In Teper v R, the appellant had been charged

• “I heard a woman’s voice shouting, ‘your

 The issue was whether the hearsay evidence of

 Held: (inter alia) the words spoken by the

• In R v Ratten, the accused was charged with

• NB: Although the doctrine of res gestae

– See Holmes v Newman [1931] 2 Ch. 112, where

• Generally, evidence that a person has a

1.First, admitting such evidence would be unfair

• NB: Similar facts evidence may be adduced (inter

• Section 15 of the Evidence Act provides:-

512, two boys, aged 9 and 11 years respectively,

had testified on oath that the Appellant, who was

the headmaster of the school they attended, had

taken hold of their hands without their consent

and rubbed them up and down against his penis.

The evidence of the children was not

 In defence, he said that he had no

1. The mandatory inclusionary approach at

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