EXAMINATION OF WITNESSES

EXAMINATION-IN-CHIEF
1. INTRODUCTION:
 The plaintiff bears the obligation to convince the Court of fact of the truth of some proposition, which
is in issue. This is the legal burden of proof. Its significance lies in the fact that the penalty or failure to
discharge this burden is the certainty of failure in the whole action.
 The legal burden in civil cases rests upon the party who assert the affirmative of an issue. The rule is
‘he who assert must prove.’1 The standard of proof is on balance of probabilities. The plaintiff satisfies
this legal burden as well as the evidential burden by calling witnesses.
 In examination-in-chief, the plaintiff will examine his witnesses with the purpose of eliciting from
them all the material facts within their knowledge, which tend to prove his case.
 The defendant has also to prove any assertions of fact that s/he makes. S/he does this by calling
witnesses or documentary evidence showing that the assertions made by the plaintiff are incorrect. S/he
generally bears no burden of proof unless he makes a counterclaim or where the law states that he
should discharge burden of proof. Examples of cases where the burden of proof lies with the defendant
arises in the defense of insanity, or intoxication, or in the case a where a public officer did not receive
money as a bribe.
2. OBJECTIVE AND ESSENCE OF EXAMINATION-IN-CHIEF:
 The main objective of examination-in-chief is to:
i. elicit testimonial evidence that will assist the Court in the administering justice;
ii. introduce undisputed facts;
iii. enhance likelihood of disputed facts;
iv. lay foundation for introducing exhibits;
v. reflect on witnesses’ credibility;
vi. hold the attention of trier of fact
 Burden of proof: In civil cases, the proof of case lies with the plaintiff’s counsel to prove their case on a
balance of probability. Whereas in criminal suits, the prosecution bears the burden of proving their case
beyond a reasonable doubt.
3. HOW TO CONDUCT AN EFFECTIVE EXAMINATION-IN-CHIEF:
For conducting an effective examination-in-chief, an advocate should:
 identify the issues and relevant facts in his case;
 identify evidence s/he needs to use in his case;
 identify which witnesses, documents or other evidence are available to prove the evidence;
 call the best witness first as this creates a lasting impression;
 identify which witnesses can authenticate the evidence to make it admissible if s/he has documents or
tangible evidence;
 identify important questions to ask a client and any relevant witnesses in order to prove the evidence;
 exclude unprovable, implausible, impeachable and door opener facts which lead to the loss of the case.

1
See, Constantine v. Imperial Smelting, (1942 AC 154).
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Kenyatta University School of Law, Parklands, Nairobi
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  look at the pleadings and any answers to interrogatories, which may have been obtained to identify the
areas of contention in the case;
 arrange a pre-trial conference with a witnesses in order to be able to obtain as much relevant
information from them as possible;
 create sufficient time to discuss with the client and any relevant witnesses in order to ascertain the
evidence they are to give;
 establish a rapport with the client and witnesses in the pre-trial conference;
 explain to client and witnesses how the Court operates and what will happen in the witness box. It is
bewildering and often terrifying experience for most people to appear in Court, especially if it is for the
first time and their future liberty is at stake;
 inform the witness about the position of the Judge and how the Judge is to be addressed;
 explain to them on administration of the oath or affirmation by the Court officer;
 explain to them the way you intend to ask questions and try to provide some outline of what they will
likely be asked in cross-examination;
 have witness prepare a sketch or diagram before the advocate during pre-trial conference in case they
are to be used in Court;
 evaluate the character and strength of the witnesses and determine what sort of effect they are likely to
have on the Judge. Witnesses whose personality, recollections and/or prior history is questionable
should be avoided and where it is inevitable that they have to be called, an advocate should try keeping
their evidence to the bare minimum, and sit down as soon as an advocate get out of them the required
information. Witnesses with a clear recollection of the relevant events can to some extent be allowed to
tell their own story.
 start strong and end strong;
 not ask leading questions;
 be dramatic and persuasive;
 not interrupt the action (flow of the story);
 give each detail separate attention;
 affirm a point before refuting;
 not go on a fishing expedition in examination-in-chief;
 not argue while examining a witness not attempt to force a favorable answer;
 ensure that the factual content of a witnesses‘ evidence doesn‘t come from him/her;
 ask all material questions in the first instance and if he fails to do so, it cannot be done in reply;
 ensure that the answer a witness gives to a question during the examination must be based upon a point
of fact and not a point of law.
4. EVIDENCE TENDERED IN EXAMINATION-IN-CHIEF:
The witnesses an advocate calls must enable the advocate achieve the objectives of examination-in-
chief. The key objectives are to ensure that the evidence the witness presents to Court should be:
a) admissible;
b) legally sufficient to meet the burden of proof;
c) understood and remembered;
d) able to create a logical, complete and clear picture of the case;
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Kenyatta University School of Law, Parklands, Nairobi
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 e) convincing, persuasive and credible;
f) able to withstand cross-examination;
g) anticipatory and contradictory of evidence that the defence will present;
h) logical, complete and coherent theory of an advocate’s case;
i) used to support another so that a seamless cloth may be woven of the proven fact.
5. LEGAL REQUIREMENTS FOR AN EXAMINATION-IN-CHIEF:
a) Competency of your witness: A witness must be competent to testify. To qualify as competent, a
witness must:
i. understanding the nature and obligation of the oath or affirmation to tell the truth;
ii. have knowledge of the relevant event;
iii. recollect (memory) the relevant event; and
iv. have the ability to communicate.
b) Orally in an open Court: Order 18, Rule 3 of the Civil Procedure Rules, 2010 provides that the
evidence of the witnesses in attendance shall be taken orally in an open Court in the presence of and
under the personal direction and superintendence of a Judge.
c) Procedure under criminal law: The following are the provisions in relation to examination-in-chief
under the Criminal Procedure Code, Cap. 75:
i. Part 6: Procedure of trials before Subordinate Courts
ii. Part 9: Procedure of trials before the High Court.
iii. Section 208(1): If an accused person does not admit the truth of the charge, the Court shall proceed
to hear the complainant and his witnesses and other evidence (if any).
iv. Section 300: An advocate for the prosecution shall open the case against the accused person, and
shall call witnesses and adduce evidence in support of the charge.
d) Leading questions: Section 150 of the Evidence Act, Cap 80 provides that leading questions should
not, if objected to by the adverse party, be asked in an examination-in-chief or in a re-examination,
except with the permission of the Court. Exceptions - the Court can only permit leading questions as to
matters which:
i. are introductory or undisputed: An advocate will generally know from pleadings or committal
papers what is in dispute;
ii. have in its opinion been already sufficiently proved;
iii. have been consented upon with the opponent agrees: Sometimes, there are parts of a case where
little is in issue. Thus, to save time, both parties may agree in advance;
iv. contain indisputable facts: Some things are obvious and incontrovertible and everyone knows
them to be true. An advocate can ask leading questions in such matters;
v. an advocate expects to get a denial: An advocate can ask leading questions in such matters since
there is no choice. For e.g., were you in KFC Restaurant on the night of June 3rd 2017? Yes or No.
vi. Where the witness is hostile to the examiner, or reluctant or unwilling to testify.
Section 149 of the Act defines the term ‘leading question’ as any question suggesting the answer which
the person putting it wishes or expects to receive, or suggesting a disputed fact as to which the witness
is to testify. For example, Were you at Duffy's bar on the night of April 20 th 2017? The answer is either

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Kenyatta University School of Law, Parklands, Nairobi
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 a "yes" or "no." The same question in a non-leading form may be, Where were you on the night of
April 20th 2017?
e) Relevance of a witness' testimony: A witness' testimony must be relevant.
f) Authenticity of matters of evidence: This will show that the item in question is what its proponent
claims it is.
g) Proper evidentiary foundation or predicate for the admissibility of the evidence: Certain items of
evidence require special foundations to establish admissibility. For e.g., if the evidence is hearsay and
thus, presumptively inadmissible prima facie, such evidence can only be admissible if it is established
under one of the hearsay exceptions.
6. STRATEGIES TO BE INVOKED IN EXAMINATION-IN-CHIEF:
An advocate may employ the following strategies in order to achieve the goals and objectives of
carrying out an examination-in-chief:
 Short, open questions: An advocate should avoid compound questions and instead ask short, open
questions.
 One fact per question: An advocate should also ask one fact per question.
 Use transitional questions: An advocate should question that are transitional in nature.
 Use body movements: to explain an important point.
 Outline: The entire process of examination-in-chief must look impressive and spontaneous.
 Eye contact: An advocate must maintain an eye contact with the Judge/Magistrate.
 Clarity: The questions put to the witnesses should be clear, only one new fact to each question.
 Ambiguous questions: An advocate should avoid vague and ambiguous questions.
 Build evidentiary bridges: There should be a connection between witness evidence presented before the
Court.
 Phrases: There should be proper use of phrases to connect the matter in issue.
 Stressing of important things: An advocate should stress/repeat on certain important issues.
 Witness character: An advocate should try to mirror the good characteristics of a witness in an effort to
build his/her credibility.
 Foundation for exhibit: An advocate should authenticate and lay a solid foundation for any exhibit to
be produced. This enhances persuasion of a Judge and further ensures smooth introduction of tangible
exhibits.
 Witness’ personal knowledge: An advocate should ensure that an expert witness speaks from personal
knowledge while, lay witnesses can give lay opinions based on their personal perception but they
should not draw conclusions that call for specialized knowledge.
 Potential cross-examination questions: An advocate should deflate, rebut, or ask potential questions
which may crop up during cross examination.
 Open ended questions: An advocate should utilize open ended questions (non-leading questions) in
addressing important parts of the case, for instance, the use of words i.e., what, when, who, where, why
and how helps in description of an issue.
 Try to conserve time: Time can be conserved by eliminating unnecessary discussions.
 Controlling witnesses: An advocate should control witnesses by either directly advising that for e.g.,
that Magistrate is writing, or by using hand gestures for e.g., hand up – stop, hand down – continue.
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Kenyatta University School of Law, Parklands, Nairobi
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  Use visual aids.
 Avoiding negative, lawyerly, complex questions.
 Using simple language and vocabulary.
 Be organized.
 Voice projection: An advocate should be laudable in the Court and the pace s/he adopts should be
consistent. Pausing whenever necessary is important.
 Focusing on relevant matters.
 Ensuring good delivery of points.
 Having passion for the case
 Facial expressions and posture should be superb.
 Avoidance of distracting gestures and verbal habits.

CROSS EXAMINATION
1. INTRODUCTION:
 Section 145(2) of the Evidence Act, Cap 80 defines the term ‘cross-examination’ as the examination of
a witness by an adverse party. In other words, it is the questioning of a witness by a party other than the
one who called him to testify.
 Cross examination is preceded by examination-in-chief. In some instances, cross-examination can be
after re-examination, whereby the witness is questioned again by the prosecutor or party who called the
witness to clarify points brought up in cross-examination which might be damaging to the his case.
 Cross-examination ensures that the trial is fair and that information is truly out on the table. 2
2. TYPES OF CROSS EXAMINATION:
a) Supportive (concession based) cross–examination: This type of cross-examination is employed when
an advocate intends to ask questions and get answers that support and advance his/her case.
b) Discrediting cross-examination: This occurs when an advocate attempts to discredit the believability of
a witness’ factual testimony by showing that it doesn‘t match with common sense and/or with what
others say. It can be used to show what the witness does not know and to impeach the witness.
3. STATUTORY BASIS:
 Fair hearing: Article 50(2)(k) of the Constitution of Kenya, 2010 provides that every accused person
has the right to a fair trial which includes the right to adduce and challenge evidence.
 Power to order discovery: Section 22(b) of the Civil Procedure Act, Cap 21 provides that the Court
on its own motion, or on application by a party to issue summonses to persons who are required to
produce evidence or be examined on the documentary evidence they have given.
 Objection: Order 18, Rule 6 of the Civil Procedure Rules, 2010 provides that where any question put
to a witness is objected to by a party or his advocate, and the Court allows the same to be put, the Judge
shall take down the question, the answer, the objection, and the name of the person making it.
 The Criminal Procedure Code, Cap. 75 provides:
a) Right to summon witnesses, or examine person present: Section 150 provides that that the
prosecutor, or the advocate for the prosecution, or the defendant, or his advocate shall have the

2
Arts.48, 49 and 50, the Constitution of Kenya, 2010.
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Kenyatta University School of Law, Parklands, Nairobi
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 right to cross-examine any person, and the Court shall adjourn the case for such time (if any) as it
thinks necessary to enable the cross-examination to be adequately prepared if, in its opinion, either
party may be prejudiced by the calling of that person as a witness.
b) Putting the accused to his defence: Section 211 (1) states that at the close of prosecution case, if
the Court finds the accused person has a case to answer, it will put the accused to his defence and
if he chooses to give evidence on oath in the witness box he will be cross-examined on evidence
given so will his witnesses.
c) Cross-examination of witnesses for prosecution: Section 302 of the CrPC provides that the
witnesses called for the prosecution shall be subject to cross-examination by the accused person or
his advocate, and to re-examination by the advocate for the prosecution.
d) Case for the defence: Section 307(1) of the CrPC provides that the accused person may give
evidence on his own behalf and he or his advocate may examine his witnesses (if any), and after
their cross-examination and re-examination (if any) may sum up his case.
 The Evidence Act, Cap. 80 provides:
a) Witness to character: Section 148 provides that a witness to character may be cross-examined
and re-examined.
b) Leading questions: Section 149 and 151 provides that any question suggesting the answer which
the person putting it wishes or expects to receive, or suggesting a disputed fact as to which the
witness is to testify, is a leading question. Leading questions may be asked in cross-examination.
c) Cross-examination as to previous written statements: Under Section 153, a witness may be
cross-examined as to previous statements made by him in writing or reduced into writing and
relevant to matters in question.
d) Cross-examination as to credibility: Section 154 and 163 a witness may be asked questions to:
i. test his accuracy, veracity or credibility;
ii. discover who he is and what is his position in life;
iii. shake his credit, by injuring his character, although the answer to such questions might tend
directly or indirectly to incriminate him or might expose or tend directly or indirectly to
expose him to a penalty or forfeiture.
iv. Bolstering a client’s case: Not all cross examination is directed towards discrediting or
impeaching a witness. An advocate can use the witness to ratify the important aspects of a
client‘s case.
4. RISKS IN CROSS-EXAMINATION:
a) Witness may become uncooperative or hostile.
b) Witnesses may add strength and sympathy to adversary’s case.
c) Witness may decide to fill in gaps.
d) The risks are cured by re-examination.
5. THE LAW OF CROSS-EXAMINATION: An advocate should:
a) be brief;
b) May ask leading questions;
c) limit to what was said in examination-in-chief except where credibility of a witness is in issue. In other
words, where an advocate establishes that a witness’ given evidence during examination-in-chief is not

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Kenyatta University School of Law, Parklands, Nairobi
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 harmful, an advocate should conduct constructive cross-examination showing that s/he is to be trusted.
However, if a witness’ testimony is harmful to an advocate’s case, then in cross-examination an
advocate should seek to challenge his/her evidence as being inconsistent, improbable or unrealistic.
d) avoid arguing with witness (instead insist on an opinion, not fact);
e) not intimidate by gestures, shouting, badgering, bullying;
f) not mislead the witness (by using tricky questions);
g) not assume (or fill in) facts;
h) avoid compound questions;
i) not get personal;
j) not angry when a witness does not want to agree with the advocate, or when a witness misunderstands
the questions, or s/he gives evasive answers, etc.
k) stop when s/he gets what he wants;
l) never ask a witness to ‘explain’ or ‘why’ of for ‘help’ in cross-examination;
m) reserve comments for submissions;
n) ask one thing at a time;
o) not “put it to “ a witness;
p) not ask bounce off answer on a witness to trier of fact.
6. PURPOSES OF CROSS-EXAMINATION: It is meant to:
a) repair or minimise damage;
b) enhance one’s case;
c) detract the opponent’s case;
d) establish foundation for a document;
e) discredit evidence given in chief;
f) discredit the witness as a person;
g) reflect on credibility of another witness.
7. ORGANISATION PRINCIPLES IN CROSS-EXAMINATION:
 Cross-examination is telling a client’s story through the opponent.
 It is not time to get new information; it is to enhance or establish facts an advocate already has.
 An advocate should:
a) work through innuendo and implication;
b) not necessarily have to start strong;
c) use topical organisation;
d) give details first and then build up incrementally;
e) scatter the circumstantial evidence: An advocate should not show a witness the killer weapon s/he
has;
f) spare the points s/he wants to make for the end;
g) ensure that the last point is admissible, central to the theory of a case, evoke the theme, undeniable;
h) start with a conviction.
8. CLASSIC FORMAT FOR CROSS-EXAMINATION:
a) Start friendly by asking non-threatening questions.

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Kenyatta University School of Law, Parklands, Nairobi
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 b) Affirmative questions should then be asked i.e., questions that build an advocate’s case, not destroy
opponent’s.
c) Information that cannot be controverted should then be asked.
d) Information that challenges should then be asked.
e) Hostile information which confronts a witness directly should then be asked.
9. GUIDELINES TO AN EFFECTIVE CROSS-EXAMINATION:
a) Preparation: Proper preparation is the key to success in cross-examination. Proper preparation
involves collecting as much background information on the circumstances as possible from the client.
It also involves a thorough reading of the pleadings, charge-sheet, witness statements to the police, as
well as a perusal and examination of the various reports, documents and exhibits that the prosecution
intends to rely on. A properly prepared cross-examiner:
i. is able to lead a witness down a pre-selected path to obtain vital information to his/her case or
defence;
ii. understands which points s/he ought to rebut and have his own theory of the case;
iii. is able to devise a strategy for use in case an unexpected response arises;
iv. will jot down the points of cross-examination rather than the whole questions themselves;
v. will take note of the behavior and answers being given by the witness.
b) Having a goal for effective cross-examination: A person carrying out cross-examination must
identify and keep in mind the goal s/he intends to establish in his cross-examination. The primary goals
of cross-examination may include pointing out the inconsistencies in the witness testimony,
impeaching the witness, using the witness to corroborate the facts in one’s client’s case, etc.
c) Having a plan for cross-examination: The best effective method of reaching the goal of cross
examination is by having a plan to be used in establishing the basic points to be established in cross-
examination. It also helps in identifying possible areas which must be covered in cross-examination.
Cross-examination questions should be planned and organized in units (segments/blocks) by subject
matter rather than in the chronological order often used with direct examination.
d) Keeping it simple: When devising a plan for cross-examination, it must be kept simple. An advocate
should not include complicated questions to the witness as this may only lead to confusion. Repetition
of each answer as a preface to the next question breaks the rhythm of the cross-examination.
e) Control of a witness: An advocate should ask leading questions to take control of a witness. S/he
should ensure that such questions are all answered by the witness. Open ended questions i.e., why,
who, what should be avoided as it gives the witness control of the answer.
f) Knowing the rules: Cross-examination is conducted within the ambits of the rules of evidence. It is
therefore important to follow the rules of admissibility of evidence so as to maneuver without
technicalities like objections from the opposing counsel.
g) Stopping when necessary: An advocate should start cross-examination on a high note and finish
strong since the attention of the Judge/Magistrate is usually at the beginning and towards the end. Once
you have made the significant point, end the cross-examination.

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Kenyatta University School of Law, Parklands, Nairobi
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10. TECHNIQUES FOR CROSS-EXAMINATION: An advocate should:
a) ask short, open questions: An advocate should remember that s/he has the attention of the Court. S/he
should try to make a witness explain and verify facts which then reveals weaknesses in the facts s/he
earlier stated.
b) avoid compound questions;
c) ask leading questions.
d) use propositions i.e., put across to a in interrogative form a fact s/he already knows;
e) be organized;
f) focus on relevant matters;
g) ensure good delivery of the matter;
h) have passion for the case;
i) use simple language and vocabulary;
j) ensure facial expressions and posture is superb;
k) avoid distracting gestures and verbal habits;
l) his/her voice is well projected;
m) maintain eye contact;
n) in planning:
 avoid reading pre-written questions;
 use an outline, topic, sub-topics, e.g., i.) normal day - morning, afternoon, evening; ii) day of
incident - morning, time of incident; iii) events at scene - weather conditions; which people were
present; their temperament; iv) post incident - who came; reporting to authorities; treatment.
o) Form of questions: An advocate should ask incremental questions, or a sequence of questions to
establish an impact, or to show a relationship, or to “scatter” a witness, or to get a commitment, or to
create an “enclosure” from which a witness cannot escape. Besides, an advocate should listen to a
witness and insist on an answer. Further, an advocate should repeat similar basic questions in a
different way to get different responses which can be used against a witness. However, if the questions
are too repetitive as to make the witness nervous, the opposing attorney may accuse the cross-examiner
of badgering the witness.
The following are questions that can lead to trouble:
 Non-leading questions.
 ‘Why’ or explanation questions;
 ‘Fishing’ questions in a hope of getting something.
 Long questions where a witness forgets what was being asked.
 ‘Gap’ questions meant to fill an intermediate issue.
 Using ‘you testified’ repeatedly.
 Characterizing and making conclusions.
p) Regaining control: Where witness:
 has refused to agree: determine why s/he has refused to agree i.e., an advocate may be wrong on
facts, otherwise go back to basic, agreed on facts.
 is out to explain: determine why are they out to explain, or ask a totally new question to move on.

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Kenyatta University School of Law, Parklands, Nairobi
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  is uncooperative: ask for help of the Judge/Magistrate, or keep asking that the question, or
confront them with their won words.
q) Adopt the following starting lines for cross-examination:
 You agree with me … It is true …
 Confirm that … You have testified that …
 It is your evidence that … It is a fact that …
 .......... that is true? .......... that is correct or isn’t it so?
r) An advocate should keep cross-examination to only points which support his/her theory of the case.
This strengthens an advocate’s argument. Moreover, s/he should keep the strongest points at the
beginning and at end of cross-examination since these are the points likely to remain in the mind of the
Judge/Magistrate.

RE-EXAMINATION, EXHIBITS AND IMPEACHMENT

1. EXHIBITS: STATUTORY BASIS
 Admitted documents forms of suit record: Order 14 Rule 3 of the Civil Procedure Rules, 2010
provides that every document admitted in evidence shall form part of the record of the suit.
 The Criminal Procedure Code, Cap 75 provides:
a) Procedure on plea of not guilty: Under Section 208(1), if the accused person does not admit the
truth of the charge, the Court shall proceed to hear the complainant and his witnesses and other
evidence (if any).
b) Opening of case for prosecution: Under Section 300, the advocate for the prosecution shall open
the case against the accused person, and shall call witnesses and adduce evidence in support of the
charge.
 The Evidence Act, Cap 80 provides:
a) General restriction of admissibility of evidence: Under Section 5 of the Act, no evidence can 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 the Act to be relevant.
b) Admissibility of documentary evidence as to facts in issue: Under Section 35 of the Act in any
civil proceedings where direct oral evidence of a fact would be admissible, any statement made by
a person in a document and tending to establish that fact shall, on production of the original
document, be admissible as evidence of that fact if the maker of the statement:
i. had personal knowledge of the matters dealt with by the statement; or
ii. is called as a witness in the proceedings. However, there is no need to call the maker of the
statement if s/he is dead, or cannot be found, or is incapable of giving evidence, or if his
attendance cannot be procured without an amount of delay or expense which in the
circumstances of the case appears to the Court unreasonable.
c) Entries in books of account: Under Section 37, entries in books of account regularly kept in the
course of business are admissible whenever they refer to a matter into which the Court has to
inquire.

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Kenyatta University School of Law, Parklands, Nairobi
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 d) Entries in public records: Under Section 38, an entry in any public or other official book, register
or record, stating a fact in issue or a relevant fact, and made by a public servant in the discharge of
his official duty, is admissible.
e) Statements, etc., in maps, charts and plans: Under Section 39, statements and representations of
facts in issue or relevant facts made in published maps or charts generally offered for public sale,
or in maps or plans made under the authority of any Government in the Commonwealth, are
admissible.
f) Statements of fact contained in laws and official gazettes, etc. Under Section 40, when the
Court has to form an opinion as to the existence of any fact of a public nature, any statement of it
shall be admissible which is made in any written law of Kenya, or in any notice purporting to be
made in pursuance of any such written law, where the law or notice (as the case may be) purports
to be printed by the Government Printer.
g) Statements as to law contained in books: Under Section 41, when the Court has to form an
opinion as to a law of any country, any statement of such law contained in a book purporting to be
published under the authority of the Government of such country and to contain any such law, and
any report of a ruling of the Courts of such country contained in a book purporting to be a report of
such rulings, is admissible.
h) Proof of contents of documents: Under Section 64, the contents of documents may be proved
either by primary or by secondary evidence.
i) Photographic evidence—admissibility of certificate: Under Section 78, in criminal proceedings
a certificate given under the hand of an officer appointed by order of the Director of Public
Prosecutions, who shall have prepared a photographic print or a photographic enlargement from
exposed film submitted to him, shall be admissible.
j) Electronic records: Part 7 of the Act provides that the contents of electronic records may be
proved in accordance with the provisions of Section 106B of the Act.
2. STEPS OF ADMISSION OF EXHIBITS: An advocate should:
a) lay the foundation: One can state for instance, ‘you have earlier testified about …’
b) show the exhibit to the Judge, as it be marked for identification (For civil, refer to page in bundle);
c) show opponent’s counsel, ask if s/he has any objection;
d) ask a witness how s/he recognises/identifies it.
e) production/tendering (ask MFI for it to be marked as Exhibit). The marking is done by Court Clerk.
f) use the exhibit (get the meat out of it).
3. RE-EXAMINATION:
3.1 INTRODUCTION:
 Re-examination is a way of saying that the cross-examination has some weaknesses. Thus, its purpose
is to:
a) correct the mistakes made in cross examination;
b) salvage a case;
c) clarify confusing points;
d) try and shift the Court‘s probable inference by explaining a distorted testimony to favor one’s case.
 The general principles are like that of examination-in-chief (see above).

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  Open ended questions are asked at this stage.
 If a witness has done irreparable damage during cross-examination, an advocate should not re-examine.
 If a counsel wishes to introduce something new during re-examination, s/he must first seek leave of
Court.
 Re-examination is completely optional. An advocate does not need to do it at all.
 Limitation: Questions are asked on only issues that arose in cross-examination.
3.2 STATUTORY BASIS OF RE-EXAMINATION:
 Power to summon witnesses, or examine person present: Section 150 of the Criminal Procedure
Code, Cap 75 provides that a Court may, at any stage of a trial or other proceeding under the Code,
summon or call any person as a witness, or examine any person in attendance though not summoned as
a witness, or recall and re-examine a person already examined, and the Court shall summon and
examine or recall and re-examine any such person if his evidence appears to it essential to the just
decision of the case.
 Cross-examination of witnesses for prosecution: Under Section 150 of the CrPC, a witnesses called
for the prosecution shall be subject to cross-examination by the accused person or his advocate, and to
re-examination by the advocate for the prosecution.
 Case for the defence: Section 307(1) of the CrPC provides that the accused person may give evidence
on his own behalf and he or his advocate may examine his witnesses (if any), and after their cross-
examination and re-examination (if any) may sum up his case.
 Like in examination-in-chief:
a) witness must be legally competent to testify;
b) an advocate should use non-leading questions (open ended).
c) not testify in narrative;
d) generally offer fact, not opinion;
e) witnesses can refresh their memory;
f) an advocate should also:
i. look at the credibility and explanations given by a witness;
ii. exclude unprovables, implausible, impeachables, door openers, etc.
iii. be organized;
iv. focus on relevant matters;
v. ensure good delivery;
vi. have passion for the case;
vii. use simple language and vocabulary;
viii. ensure facial expressions and posture is superb;
ix. avoid distracting gestures and verbal habits;
x. maintain eye contact
xi. ensure his/her voice is well projected.
4. IMPEACHMENT OF WITNESSES:
 Impeachment of witnesses refers to challenging the credibility of a witness. A witness may be
impeached in the following ways by the adverse party or with the consent of the Court, by the party
who calls him:
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Kenyatta University School of Law, Parklands, Nairobi
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 a) Bias: An witness may show where s/he has an interest in the outcome of the case. An advocate
should be able to point out this.
b) Mental or physical impairment: This may affect a witness’ ability to perceive, recollect or link
facts.
c) Contradiction in the testimony.
d) Prior inconsistency: This is by proof of former statements, whether written or oral, inconsistent
with any part of his evidence which is liable to be contradicted.
e) Character: Perhaps where the witness is a habitual liar.
f) Previous convictions.
g) By the evidence: of persons who testify that they, from their knowledge of the witness, believe him
to be unworthy of credit.
h) By proof that the witness has been bribed: or has accepted the offer of a bribe, or has received any
other corrupt inducement to give his evidence.

 Procedure for impeachment: [The three Cs of impeachment, alternatively, the three Rs]
a) Confirm: the particular aspect of the testimony that the witness gave in Court in the evidence-in-
chief. This is done by asking the witness to repeat the relevant part of the testimony (Repeat)
b) Credit: the witness by way of establishing the reliability of the document that you are about to use
to impeach the witness. Ask questions tending to show that the document you are about to refer to
is a reliable document. Read the statements in the document yourself and ask the witness to
confirm the veracity of your reading (Reliability of the document).
c) Confront: the witness with the inconsistent statement (Read verbatim).
d) Don’t add “E” (Explain).

CLOSING ARGUMENT/STATEMENT
1. INTRODUCTION:
 Closing argument is a trial lawyer’s final statement to the fact finder in which s/he asks the Court to
consider the evidence and find for them. This is the moment to persuade the Court to rule in his/her
favour.
2. STATUTORY BASIS ON CLOSING ARGUMENT/ STATEMENT:
 Statement and production of evidence: Order 18, Rule 2 of The Civil Procedure Rules, 2010
provides that after the party having the right to begin states his/her case, the other party shall then state
his case and produce his evidence in reply, and may then address the Court generally on the case. The
party beginning may then reply. The court may in its discretion limit the time allowed for addresses by
the parties or their advocates.
 Order of speeches: Section 213 of the Criminal Procedure Code, Cap. 75 provides that the prosecutor
or his advocate and the accused and his advocate are entitled to address the subordinate Court in the
same manner and order as in a trial before the High Court
 Close of case for prosecution: Section 306(1) and (3) of the CrPC also provides that when the
evidence of the witnesses for the prosecution has been concluded, the Court, if it considers that there is
no evidence that the accused committed the offence shall, after hearing, any arguments which the

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 advocate for the prosecution or the defence may desire to submit, record a finding of not guilty. Where
the accused person says that s/he does not intend to give evidence, or make an unsworn statement, then
the advocate for the prosecution may sum up the case against the accused person.
 Case for the defence: Section 307(1) of the CrPC provides that the accused person may give evidence
on his own behalf and he or his advocate may examine his witnesses (if any), and after their cross-
examination and re-examination (if any) may sum up his case.
 Where accused adduces no evidence: Section 311 of the CrPC provides that if the accused person
says that he does not intend to give evidence and the Court considers that there is evidence that he
committed the offence, the advocate for the prosecution shall then sum up the case against the accused
person, and the Court shall then call on the accused person personally or by his advocate to address the
Court on his own behalf.
3. NATURE OF CLOSING ARGUMENT: a) It is an argument, b) It is post the fact, c) It is based on
what has been adduced (evidence, exhibits).
4. ROLE OF CLOSING ARGUMENT/ STATEMENT: It is meant to:
a) consolidate all the evidence that has been adduced;
b) link together the components of the trial;
c) argue out the case from the client’s perspective;
d) make the prayer of what an advocate is seeking;
e) tell the entire story without interruption and constraining formalities;
f) its success depends on success of previous stages of trial;
g) it must complement opening statement and reflect and encompass the evidence in the case.
5. THEORY, THEME AND STORY ARC OF CLOSING ARGUMENT/ STATEMENT:
 Theory: The theory should be:
a) logical: An advocate should show movement from fact to conclusion;
b) believable: This is by being based on admissions by opposite side, undisputed facts, common sense
and experience and credibility of witnesses;
c) legally sufficient: It must address both the law and the facts.
 Theme in closing argument: An advocate should:
a) have it constantly present in closing argument;
b) start with it; use it in each segment;
c) avoid it becoming a monotonous by repetition.
Theme serves role of moral persuasion.
 Story arc in closing argument: The story arc:
a) establishes client as the centre of the whole story;
b) takes advantage of human desire for equilibrium and order;
c) engages fact finder as the “hero” to rectify the disruption and save client from further injustice.
Example: “Things were fine, everything going on well ... . In between, something drastic and disruptive
happened. The Court needs to restore the client as far as is possible to the state before the disruption.”
6. ELEMENTS OF THE CLOSING ARGUMENT:
a) Conclusions: It flows from the evidence.
b) Inferences: A deduction drawn from a known fact.

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 c) Details and circumstantial evidence: that was earlier gathered in examination in chief and in cross
examination.
d) Analogies: An advocate should draw from everyday human behaviour. Comparison to widely
understood experience or activity. Caution: S/he should ensure they are “air tight”
e) Allusions: A literary reference to add to persuasive force. In past mostly drawn from Shakespeare and
the Bible.
f) Stories: To humanize the client.
g) Credibility and motive: Closing argument is an opportunity to comment on and compare motive and
credibility of a witness. It is here that one can refer to what came from impeachment. Besides, one can
compare the testimony that came from different witnesses. Motive can be commented upon from either
what came out directly as a fact or from a logical inference.
h) Weight and evidence: Here an advocate will assert why:
 one version is preferable to another;
 some facts should be accepted and others rejected, and
 one piece of evidence is stronger than the other.
i) Demeanour: This is based on an observable fact. An advocate can point out i.e., the delay or refusal to
answer question; the sudden loss of composure (fidgeting) and sudden loss of temper. However, since
it is based on perception, an advocate need to bear in mind that the fact finder may get a different
perception.
j) Refutation: This is an opportunity to refute opposing positions. An advocate can thus point out errors,
inconsistencies, implausibilities and contradictions.
k) Application of the law: An advocate needs to apply the law to the facts. This is the most extensive part
of trial when talking about the law.
l) Moral appeal: It is explaining how and why a client’s position makes sense. This is the moment an
advocate elaborates on the moral theme of the case. It expounds of the shared values, civic virtues and
common motivations,
7. STEPS IN CLOSING ARGUMENT: IRAC
a) Issues
b) Rule (Law)
c) Application of the law
d) Conclusion.
8. STRUCTURE OF CLOSING ARGUMENT:
a) Topical organisation:
i. Issues - Factual and legal issues.
ii. Elements - If Criminal, elements of charge. If Civil, the elements of Negligence.
iii. If applicable, what instructions Judge gave to Jury or to the assessors.
iv. What is the turning point of the case?
v. Alternative structure – a) Chronological, b) Witness listing.
b) Other organising tools:
i. Start strong, end strong by following the principle of primacy and recency.
ii. Affirmative case first – An advocate should build his/her own case first.

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 iii. Cluster circumstantial evidence - An advocate should accumulate details.
iv. An advocate should “bury” (minimize) his/her concessions in the middle of the argument;
v. An advocate should weave witness credibility in the story
vi. S/he should address the damages due to client if is a claim for damages case.
9. CONTENT OF CLOSING ARGUMENT:
a) Tell a persuasive story:
i. Known facts - what happened?
ii. Reasons - why did it happen?
iii. Credible witnesses - who should be believed?
iv. Supportive details - how can we be sure? Common sense - Is it plausible?
b) Tie up cross-examination.
c) Comment on promises made during opening statement.
d) Resolve problems and weaknesses.
e) Discuss damages.
10. DELIVERY AND TECHNIQUE IN CLOSING ARGUMENT: An advocate should:
a) start strong, disclose weaknesses in the middle and end strong: by following the principle of primacy
and recency. An advocate should tell the Judge how strong his/her case is and show him why he
deserves to win.
b) not read or memorise: S/he should try to minimize how much time s/he spends looking at notes;
c) maintain eye contact: S/he should make sure that s/he is making eye contact with the person s/he wants
to persuade (Judge).
d) use an outline as prompts;
e) use body and hand movements to make emphasis;
f) avoid aimless pacing or distractive movement;
g) change speed, tone, inflection, volume. S/he should not be too quick or too loud;
h) not be insincere;
i) use emotion at moral dimensions of the case;
j) use visual aids e.g., weapons, models, photographs, maps, charts, maps and samples;
k) use headlines i.e., negligence, damages;
l) use simple, active language;
m) theme: An advocate should use determined theme and persuasively articulate his/her theory of the case;
n) the law: An advocate should show knowledge of the law by: a) arguing the law effectively, b)
appropriately citing persuasive authorities, c) acknowledging opposing authorities, d) distinguishing it,
e) or argue for change in the law.
o) prayer: S/he should tell the Court what s/he wants but, not beg. In a criminal case, s/he should ask for
an acquittal or a conviction. An advocate should remember that s/he is asking for justice and not
sympathy.
p) witnesses: argue the credibility of witnesses and if they are many, s/he should put them in clusters. Link
the cross-examination and impeachment.
q) show why he should win: based on the evidence produced, or by relating the facts to the law
r) be organized.

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 s) voice projection: An advocate should be laudable in the Court and the pace s/he adopts should be
consistent. Pausing whenever necessary is important.
t) focuse on relevant matters;
u) ensure good delivery of points;
v) avoid distracting gestures and verbal habits;
w) have passion for the case;
x) facial expressions and posture should be superb.
11. ETHICS IN CLOSING ARGUMENT: An advocate should avoid:
a) asserting personal beliefs;
b) appealing to prejudice or bigotry - racial, religious, ethnic, gender discrimination;
c) misstating the evidence;
d) misstating the law;
e) misusing evidence;
f) appealing to Jury/Fact finder’s personal interest;
g) appealing to emotion, sympathy, passion - basing on stereotypes, physical appearance.
OBJECTIONS
1. INTRODUCTION:
 An objection is generally a motion asking a Judge to exclude evidence that the other side is seeking to
offer.
 An objection may be:
a) by an interjection when proceedings are on-going mainly during examination-in-chief or cross-
examination;
b) in the form of a motion seeking that the entire suit be not entertained. This is referred to as a
‘preliminary objection (P.O)’;
c) raised by an accused person in a trial on indictment. This is referred to as ‘objection to indictment.’
 The accused may object on legal grounds i.e., where the indictment contravenes or fails to comply with
the law, or on a breach of the fundamental right of an accused person prior to arraignment in Court.
This is raised by an application to quash the indictment or to declare the trial a nullity.
2. PURPOSE AND FUNCTION OF OBJECTIONS: Objections are utilized in a trial to:
a) ensure that parties prosecute and defend their cases in accordance to the law. This is both on procedural
and substantive law;
b) ensure that witnesses give evidence without intimidation or harassment by the opposing advocate;
c) help to predicate error on a court‘s evidentiary ruling;
d) help to prevent a court from entertaining a matter that it ought not to;
e) ensure that the court does not entertain a trial that is otherwise a nullity;
f) strike out defective pleadings;
g) preclude inadmissible evidence from being presented to Court.
3. STATUTORY BASIS TO OBJECTIONS:
 Fair hearing: Article 50 of the Constitution of Kenya, 2010 also provides that lack of detail in charge,
failure by prosecution to provide evidence wish to rely on in advance, offence not being a crime at time
was committed, autrefois acquit or convict, may call for objection.

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  Objections to jurisdiction: Section 16 of Civil Procedure Act, Cap. 21 provides that no objection as to
the place of suing shall be allowed on appeal unless such objection was taken in the court of first
instance and there has been a consequent failure of justice.
 Res Judicata: Section 7 of the Civil Procedure Act, Cap. 21 provides that no Court shall try any suit or
issue in which the matter directly and substantially in issue has been directly and substantially in issue
in a former suit between the same parties, or between parties under whom they or any of them claim,
litigating under the same title, in a Court competent to try such subsequent suit or the suit in which
such issue has been subsequently raised, and has been heard and finally decided by such Court.
 Questions objected to and allowed by Court: Order 18, Rule 6 of the Civil Procedure Rules, 2010
provides that where any question put to a witness is objected to by a party or his advocate, and the
Court allows the same to be put, the Judge shall take down the question, the answer, the objection, and
the name of the person making it.
 Grounds of opposition to application in High Court: Order 51, Rule 14(1) provides that any
respondent who wishes to oppose any application may file any one or a combination of the following
documents:
a) a notice preliminary objection: and/or;
b) replying affidavit; and/or
c) a statement of grounds of opposition.
 Defectiveness of charge: Section 134-137 of the Criminal Procedure Code, Cap.75 provide that
failure to disclose offence; failure to provide particulars; duplicity may call for objection.
4. TIMING, MAKING OF OBJECTIONS:
In deciding whether or not to object, the qualities of a good trial advocate will come into play and more
particularly the following:
a) Stand, state the grounds for objecting: This is very important.
b) Clarity of thought and language: An advocate must have clarity of thought and language so as to be
able to put forward and respond to objections clearly and logically in Court.
c) Confidence and courage: An advocate should be confident and put up a civilized warfare in defending
or raising a trial objection rather than sit back without putting up a fair fight.
d) Alertness: An advocate must be alert during trial so as to point out when to raise an objection. S/he
should also know when to expect objections against his/her client. This virtue is achieved by keenly
following evidence and being alert to the mind of the Court.
e) Preparedness: To be able to alleviate situations of surprise in the event that a trial objection is raised
against a client‘s case, an advocate needs to be well prepared. Moreover, by researching the law well,
s/he gets to raise informed and timely trial objections.
f) Professionalism: This demands that an advocate knows the rules of practice and evidence so as to
prevent objections against his/her ill advised choice of action. The rules of ethics and conduct also
come in handy to enable one raise well founded objections in a respectful and professional manner.
Besides, professionalism ensures that advocates do not raise objections actuated by malice. Objections
raised solely for the purpose of slowing down, impeding justice or protecting witnesses is unethical.
The advocate should not raise emotions against the other or go personal. The manner and tone of

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 language to be used in raising the objection is important. An advocate ought to rise up and politely but
confidently say such words as … “your honour, counsel is leading the witness.”
g) Sound judgment: It enables an advocate makes appropriate tactical decisions as to when or not to raise
objections, or how to respond to objections. Raising objections should not be too early or too late. An
advocate ought to be able to think on his/her feet. S/he should make a quick cost benefit analysis, to
avoid a situation where s/he wins the battle but ends up losing the war.
Factors to consider in deciding whether or not to object:
i. Relevance: An advocate should look at the opposing party’s proposed evidence to determine
whether it tends to prove the existence or non-existence of a fact in issue.
ii. Reliability: Second hand information, for example hearsay, would normally be excluded since it is
not as reliable as first hand information. Section 63 of the Evidence Act provides that oral evidence
must in all cases be direct evidence i.e., evidence that a person who claims has seen, heard, etc.
iii. Legality: Evidence which is relevant but is obtained illegally may be objected to. For instance, a
confession that is illegally obtained in criminal cases will not be admissible as evidence. A
confession obtained by inducement, threat or promise will also not be admissible, unless to the
opinion of the Court, such inducement, threat or promise is removed. 3

5. RESPONDING TO OBJECTIONS:
 Most of the time, a Judge will rule without hearing from opposing counsel. However, a Judge may
invite the counsel to respond and may:
i. call for substantive arguments on the point;
ii. call for a specific response;
iii. rule that there will be limited admissibility;
iv. conditionally admit evidence based on offer by advocate to avail a witness or explanation.
An advocate should watch out for non-responsiveness by the trier of fact.
 If an advocate’s opponent objects, an advocate should:
a) just pause, think, respond and wait for the ruling; or
b) rephrase the question if the matter is absolutely or obviously necessary so as to avoid the
objectionable material; or
c) smoothly transition to another section of the testimony.
d) repeat the entire question for the witness for clarity purpose if an opponent’s objection is
overruled.
6. PREPARATION AND PROCEDURE:
 Objections ought to be timely and specific: This means that an objection should be raised before the
inadmissible evidence is produced and should be specifically attributed to a particular issue, statute or
rule of evidence.
 In respect to preliminary objections: a party must file and serve a notice of the preliminary objection.
In civil cases, a defence may have a paragraph to the effect that the defendant shall raise a preliminary
objection at the hearing thereof on some stated grounds. That serves as sufficient notice. Service of the

3
S.26, the Evidence Act, Cap 80.
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 application to strike out a suit or pleading preliminarily also serves as notice of the preliminary
objection.
 Parties are then given an opportunity to argue at the appointed time: The Court thereafter gives a
ruling thereon, either overruling or sustaining the preliminary objection. Any aggrieved party is at
liberty to appeal within the time stipulated and in accordance with the law.
 In respect to trial objections: the party wishing to raise the objection does so by simply standing and
stating, “Objection, your honour/lordship.” An advocate should then succinctly explain why the trial
objection is well founded. The Court will either rule on it immediately or require a response from the
other party before ruling. This process should take place with utmost respect and with the use of a
polite language.
 An advocate needs to have a rapid cognitive recognition: Rapid cognitive recognition entails:
i. firstly, researching on the matter or listening to the question/issue raised;
ii. secondly, recognizing a potential objection;
iii. thirdly, deciding whether to make the objection, and
iv. finally, making the objection.
7. ARGUING THE OBJECTION: An advocate:
a) can raise it from the bar;
b) can request to raise it in camera;
c) let the objector raise it, listen if judge will ask the other to respond;
d) avoid a two way argument between counsels that excludes the Judge and address the objection to the
Court;
e) deliver it with conviction;
f) ensure there is a ruling on it, so that have it on record in case of appeal.
Once ruling is made:
 For the one objected to: It is important to realise that is not the end; there is still a trial going on,
remain alert, ensure the question is answered, especially if objection led to an interruption.
 For the objector: Remain alert and continue to scrutinize the testimony.
8. DECISIONS ON OBJECTIONS:
The court is required to make and give a decision on objections. For:
a) preliminary objections: the issues canvassed will usually require more time and research before a
decision is arrived at. The Court will thus give the parties some date when it thinks fit to have a written
ruling;
b) trial objections: the Court ought to make ruling instantly for purposes of expediency. This does not
however preclude the Court from deferring the ruling to a given date. What is important is the weight
of the objections both on legal and factual issues. In Republic v. Robert Gilbert Cholmondeley, the
prosecution moved the Court under Section 60 of the Constitution for an order directing the defence to
make a full disclosure of their witnesses, statements and copies of certain forensic reports that the
defence intended to produce. The defence objected to the motion on the ground that such a motion
intended to infringe the constitutional rights of the accused and that no reciprocity existed to warrant
the defence discloses their witnesses and statements as the prosecution was required to do. The Judge
adjourned the proceedings as he retired to consider a ruling.

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 c) execution matters in civil cases: Objections raised in relation to execution in civil cases, the Court
makes the decision after due consideration of the arguments propounded by the parties and the
evidence. This requires more time before ruling depending on the weight of the case.
9. COMMON OBJECTIONS: For proper understanding, it is important to classify objections into three
categories, namely:
a) Preliminary objections: These are objections raised before the substantive matter is heard and
determined on merit, only on a point of law. They can be raised where a:
i. pleading is defective for want of form;
ii. pleading breaches a mandatory statutory provision;
iii. suit is time barred.
A preliminary objection may be raised by a party in his/her pleading, pursuant to Order 6, Rule 7 of the
Civil Procedure Rules, 2010.
Under Order 50, Rule 1, a party may raise a preliminary objection by way of a Notice of Motion.
Section 16 of the Civil Procedure Act, Cap 21 requires that one makes an objection as to the place of
suing in the Court of first instance since failure to do so, no such objection shall be allowed on appeal.
It is important to note the following on preliminary objections:
i. Preliminary objections must be on a point of law: The Court of Appeal in Mukisa Biscuit
Manufacturing Co. Ltd. v. West End Distributors Ltd.,4 observed that a preliminary objection
consists of a point of law which is clear and beyond doubt and which has been pleaded, or which
arises by clear implication out of pleadings and which if argued as a preliminary point may dispose
of the suit.5 No preliminary objection can thus be raised if any fact has to be ascertained or if what
is sought is the exercise of judicial discretion.
ii. Particulars of preliminary objections must be stated: Where a party indicates that s/he intends to
raise an objection on a point of law, s/he must state the particulars of the statutory provision upon
which s/he relies to raise the objection.6
iii. Notice of preliminary objections: Any party who intends to raise a preliminary objection must give
a sufficient and reasonable notice to the other party.7 The requirement of notice is not however
necessary in matters before the Court of Appeal since matters before such Court are prosecuted in
accordance to the Court of Appeal Rules.
iv. Purpose of preliminary objection: Preliminary objections:
 ensure that parties file their cases and defend the same in accordance to the mandatory
requirements of the law;
 prevent abuse of the process of Court. This may arise in instances where a party files a
defense that is a mere sham and fraught with mere denials.
v. Examples of preliminary objections: A preliminary objection may be raised:
 on the ground that the Court lacks jurisdiction to entertain the matter;
 as to the place of suing. This must be raised in the Court of first instance;

4
(1969) EA 697.
5
See, Natin Properties Limited v. Jaggit Singh Kalsi & Another, Court of Appeal Civil Appeal No. 132 of 1989 (Gicheru, Kwach & Shah
JJ. A).
6
Kashbhai v. Sempagawa, (1976) EA 16.
7
Hudson Liase Walibwa v. Attorney General, NBI HCCC No. 2714 of 1987.
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Kenyatta University School of Law, Parklands, Nairobi
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  where there is pending suit relating to the same parties and the same subject matter is before a
Court of competent jurisdiction;8
 where the matter of the same facts between the same parties has previously been determined
by a competent Court (res judicata).9
 where pleadings offend the rules of procedure on form and substance i.e., where a Notice of
Motion is filed instead of Chamber Summons, or where a suit is commenced by way of a
Plaint instead of an Originating Summons;
 where a suit is time barred. However, under the Limitation of Actions Act a party wishing to
institute the same must first apply for the leave of the Court. Once leave is granted, then the
party will be at liberty to file the matter.
b) Trial objections: These are broadly categorized into two:
i. Form objection: This deal with non-substantive issues. It relates to the procedure of the trial and
is intended to remedy the manner in which an advocate questions a witness. For instance, an
advocate asking a question that:
 is ambiguous or unintelligible: It is objectionable on the ground that it may take on more than
one meaning;10
 is argumentative: This is a question asked to call for an argument in an answer and merely
asks a witness to concede to inferences;
 has been asked and answered: This is raised when a witness has already answered a
substantially similar question asked by the same advocate on the subject matter;
 assumes facts not in evidence: This is a question, which presumes unproved facts to be true.
For e.g., when did you stop beating your wife? This is an assumption that one actually beat his
wife, particularly where the actual act of beating has not been proved.
 is compound: This is where an advocate joins two or more questions ordinarily with the use of
the words ‘or’ or ‘and’;
 is too general, broad, or indefinite: if it permits the witness to respond with testimony, which
may be irrelevant or otherwise inadmissible;
 is leading: This is a question that suggests the answer the examining party desires;
 misstates the evidence or misquotes the witness: A question may misstate or misquote the
testimony of a witness. Where the advocate adds or alters a statement from the witness, then
one should be quick to object to the same as misquoting the witness;
 calls for a narrative answer: This is a question that invites the witness to narrate a series of
occurrence, which may provide irrelevant or otherwise inadmissible testimony;
 calls for speculation: This is a question, which invites or causes a witness to speculate or
answer on the basis of conjecture. It asks a witness to guess the answer rather than to rely on
known facts i.e., where a witness is asked to give an opinion while s/he is not an expert;
 is indecent and scandalous: Under Section 159 of the Evidence Act, Cap 80, a Court may
forbid any question or inquiry which it regards as indecent or scandalous, although such

8
S.6, the Civil Procedure Act, Cap 21.
9
S.7, the Civil Procedure Act, Cap 21.
10
S.99, the Evidence Act, Cap 80.
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Kenyatta University School of Law, Parklands, Nairobi
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 questions or inquiries may have some bearing on the questions before the Court, unless they
relate to facts in issue or to matters necessary to be known in order to determine whether or
not the facts in issue existed.
ii. Content objections: These relate to substantive evidence, either oral or documentary evidence. An
advocate may invoke the applicable rules of evidence to exclude either the witness's anticipated
answer or the introduction of an exhibit. Examples include:
 A question that invites hearsay: As a general rule, hearsay is inadmissible. Oral evidence must
in all cases be direct evidence. The Evidence Act gives exceptions to the hearsay rule. These
include evidence of dying declarations, expert opinions and documentary evidence of official
records. Where such an exception does not exist, an advocate should object to questions
inviting such evidence.
 A question that is irrelevant or immaterial: This is a question whose intent and purport is to
elicit evidence which does not relate to facts in issue or relevant facts. The trial advocate
should therefore ensure that he predicts that kind of evidence that may come forth from a
witness and consider whether the same is relevant and admissible before raising an objection.
 Inadmissible opinion: A witness may be called to give an opinion. Section 48 of the Evidence
Act, Cap 80 requires that where the Court invites a person to give 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 such point are admissible if made by experts.
 Improper impeachment: An advocate can ask a question that impeaches on the credibility of a
witness. However, an improper impeachment especially of character or which may be
annoying, indecent and scandalous cannot be allowed.11
 Excluding secondary evidence: Section 67 of the Evidence Act, Cap 80 provides that
documents must be proved by primary evidence unless secondary evidence is admissible
under the Act. An advocate may therefore object to secondary evidence where its admission is
not provided for.
 Inadmissible parole evidence: Section 98 of the Evidence Act states that no oral evidence may
be given to contradict a written agreement. In case a witness is asked to give oral evidence
which would in the circumstances contradict a written agreement, then an objection may be
sustained.
 Illegally obtained evidence: A party will not be allowed to give evidence that was procured
illegally.
 Evidence that may threaten State security: The Official Secrets Act, Cap 187 provides for the
preservation of State secrets and State security. An advocate may object to evidence which in
the circumstances may threaten State security, or would in the circumstances lead to
disclosure of State secrets. An illustration is where investigations on Angloleasing were barred
on the ground that they tended to question the manner in which the Departments of defence of
Kenya carried on its business.

11
See, Ss.157 and 159, the Evidence Act, Cap 80. Section 154 of the Act provides that a witness may be cross-examined to test his accuracy,
veracity or credibility; to discover who he is and what is his position in life; or to shake his credit, by injuring his character, although the
answer to such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him to
a penalty or forfeiture.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
23
  Re-examination on matters not raised in cross-examination: An opposing party can raise an
objection in that regard.
 Best Evidence Rule: This requires the most original source of evidence available. For example,
instead of asking what the contents of a document are, one should ask for and look at the
actual document itself.
 Instances of badgering: This is where the opposing party is antagonizing a witness to provoke
a response. Section 160 of the Evidence Act gives the Court the discretion to forbid any
question which appears to it to be intended to insult or annoy, or which, though proper in
itself, appears to the Court needlessly offensive in form.
 Introducing character evidence when it has not been brought in issue: In simple terms, the
fact that the accused committed prior offences does not necessarily mean s/he committed the
present offence. Each case should be treated independently on its own merits without
prejudice to the accused. However the accused may bring his or her character in issue, for
example, by alleging good conduct.
 Non-responsive answer: This is when a witness is evading a question and is not really
answering it.
 Nothing pending: An objection may be raised normally when a witness continues speaking on
irrelevant matters to a question posed.
 Privileged information: As a general rule, evidence which is privileged will not be admitted in
evidence. Where the law protects a witness from answering questions which relate to some
privileged information, then unless that protection ceases to exist, no question may be asked in
respect thereof. A good example is the: a) doctor-patient privilege, b) privilege not to testify
against spouse,12 c) advocate-client privilege,13 d) privilege of official communication,14 e)
privilege for identity of informer,15 f) privilege against self-incrimination.16
iii. Post-trial objections: Objections during execution proceedings: A trial may have been conducted
in which an advocate’s client was not a party to but the same affects his/her client’s property in the
execution stage. An advocate must definitely object. ‘Post-trial objections’ are thus objections that
arise during execution proceedings of a civil case. They are brought under Order 21, Rules 53-59
of the Civil Procedure Rules, 2010. The party who objects to the proceedings is called an
objector.17 The objecting party takes out an application by way of ‘summons in chambers’ in the

12
Section 130 of the Evidence Act provide that no person shall be compelled to disclose any communication made to him or her during
marriage, by the other spouse; nor shall a person be permitted to disclose such communication without the consent of the person who made
it, or of his or her representative in interest. The exception is given where: a) the suit is between the parties to the marriage, b) one of the
parties is charged with bigamy, c) the suit is in relation to an offence against morality, d) the offence relates to the person or property of
either spouse, or e) the suit relates to children to the marriage.
13
Section 134 of the Evidence Act protects such information from being admitted in Court unless where the communication is made in
furtherance of any illegal purpose, or where the information relates to any fact observed by any advocate in the course of his employment as
such, showing that any crime or fraud has been committed since the commencement of his employment. It should also be noted that the
protection shall continue after the employment of the advocate has ceased.
14
Under Section 132 of the Evidence Act, no public officer can be compelled to disclose communications made by any person to him in the
course of his duty, when he considers that the public interest would suffer by the disclosure.
15
Under Section 133 of the Evidence Act no Judge, Magistrate or Police Officer can be compelled to say whence he got any information as
to the commission of any offence, and no revenue officer can be compelled to say whence he got any information as to the commission of
any offence against the law relating to the public revenue, or to income tax, customs or excise.
16
Under Section 127 of the Evidence Act, any person charged with a criminal offence cannot be compelled to give evidence as a witness
except upon his own application. Such failure of a person charged to give evidence cannot be made the subject of any comment by the
prosecution.
17
Order 21, Rules 53 of the Civil Procedure Rules, 2010 provides that any person claiming to or to have a legal or equitable interest in the
whole of or part of any property attached in execution of a decree may at any time prior to payment out of the proceeds of sale of such
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
24
 same suit in which the application for attachment was made. This must be supported by an
affidavit. The application once filed must be served upon the judgment creditor and if the court so
directs, upon the judgment debtor. Such summonses operate as a stay of attachment unless
otherwise ordered. Once this is done, the parties will argue their case if the judgment creditor still
desires to proceed with execution and the court thereafter makes a ruling on the same. The purpose
of these objections is to ensure that attachment and execution of decrees are not done on goods,
which are not otherwise the judgment debtor’s.

property give notice in writing to the decree holder and the Court of his objection to the attachment of such property. Upon receipt of such
notice, the Court shall order a stay of the execution proceedings and shall call upon the attaching creditor, by notice in writing, within fifteen
days to intimate to Court and the objector in writing whether he proposes to proceed with the attachment and execution there under in whole
or in part.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
25