Law of Evidence II (Confessions, Illegally Obtained Evidence, Hearsay, Appeals)

Contents: 

1.0 CONFESSIONS 

2.0 ILLEGALLY OBTAINED EVIDENCE 

3.0 HEARSAY 

4.0 APPEALS

TOPIC 1: CONFESSIONS 

What are confessions, what are the rules of evidence that govern the admissibility of confessions?

Section 17  an admission is a statement oral or written which suggests any inference as to a fact in issue or relevant fact and which is made by any of the parties.  Provisions of S. 17 there are two kinds

Formal admissions are usually made in the pleadings, a party to a breached contract claim can admit blame and that will be a formal admission.

Informal admissions may be made before or during proceedings, you cannot have a formal admission without anticipation of a particular matter but informal are made before or during the proceedings.  Informal admissions could be confessions.  

A confession then is an admission by words or conduct or by a combination of both from which an inference can reasonably be drawn that the maker has committed an offence.  

What is the relationship between admission and confessions?

The relationship is that admissions is the broader category of statements oral or written. Confessions operate only in criminal while admissions are in both civil and criminal

Evidence Act defines confessions in two ways: -

 It is a statement or an aadmission made by a person at any time when charged with a crime stating or admitting an inference that he/she committed the crime. 

Swami V. King Emperor Page 22 Course outline 7th

This case contains the first ever definition of confession

Lord Atkin stated the following:

“No statement that contains that contains self exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed.”  Lord Atkin is saying that a confession must admit the offence in its terms or substantially all the facts which constitute the offence. (culpa has to do with guilt and exculpatory is removing one from guilt whereas inculpatory will be what would be incriminating)

in our Evidence Act Section 25 defines confessions “a confession comprises words or conduct, or a combination of words and conduct, from which, whether taken alone or in conjunction with…

Section 32 (2)

Section 25 deals with confessions made by an accused about his own involvement in the offence whereas 32 is confessions made by an accused person touching not only on his own involvement but on the involvement of others.  The requirement at 32(2) are more stringent, since in 25 confessions is said to comprise words or conduct… the operative words are “the person making it has committed the offence”  32(2) includes the commission of the offence and also facts constituting

Under 25 definition of confession includes both an express admission of an offence as well as admission of incriminating facts, there is express and implied.  The words “whether taken alone or …

Section 32(2) the confession has to have the effect of admitting in terms either the offence or substantially all the elements constituting the offence. 

When you implicate another person, the rules get more stringent, but when you admit your own guilt without others it is assumed that you will be careful enough not to get put down for a specific offence.

Commissioner of Customs & Excise V. Herz

In this case, while in the course of investigating a suspect fraudulent failure by a company to pay tax, customs officers subjected Hertz to interrogation lasting 3 hours.  During the 3 hours, Hertz made incriminating admissions.  The power to interrogated was derived from a statute under which both Hertz and his attorney were made to believe that failure to answer questions Hertz could be prosecuted.  For the belief that prosecution would have ensued if he did not answer all questions, Herz would not have answered all the questions.  Herzt was subsequently charged with conspiracy to cheat and defraud the customs of tax and the prosecution sought to tender evicence of his oral admission.  Hertz was convicted and he Appealed and on appeal it was held that the admissions were inadmissible because firstly the relevant statutes did not confer power to subject a trader to prolonged interrogation.  Secondly the admissions were made under threat of prosecution and were therefore not voluntary.  

The Evidence Act lays out what kinds of confessions will be admissible

Section 26  a confession is not admissible if its admission appears … which has reference against an accused person, such inducement threat or promise emanating from a person in Authority or coming from a c

In Section 26 certain words are critical in the definition “if it appears to the court” ‘the proceeding from a person in authority. “supposing that by making it he…”

“if it appears’ – it is clear that this does not amount to proof of the matter.  The accused does not have to proof beyond reasonable doubt.  He only needs to make it apparent to the court enough to raise doubt as to the voluntary of the statement.  This is in favour of the accused person.

‘threaten, induce or promise be of a temporal nature, it should not be of a spiritual nature. The inducement threat or promise should relate to the charge of the accused person.  It has to come from a person in authority and this is anyone whom the prisoner or the accused might think capable of influencing the prosecutor.

Muriuki V. R

A person in authority as one who has or appears to have power to influence a decision.

Drokinan V. R Page 21 course outline

In this case the Appellant was charged with murdering his co-worker and appropriating money which had been entrusted to him by his employer to buy timber.  He confessed to a friend and the friend reported him to the police.  He was not suspicious when he saw his friend in the cell and repeated the confession to the friend.  This confession was produced in evidence.  The defence objected to this confession as it was induced.  The court held that the evidence was admissible since it did not emanate from a person in authority and therefore the confession was admissible.

Inducement must be sufficient to make the accused hope for some advantage or fear some prejudice.  Take into account a person’s experience and age, what they are exposed to and whether there has been a time lapse between inducement and confession.

Section 27

It is a question of fact when you say that the impression has  been removed.

Kaluma V. R

In this case the accused persons committed an offence in Uganda and fled to Kenya.  Police Officers sent to arrest them intended to induce them with beautiful girls but the accused got wind of this and they dated the girls and murdered them and threw them in Athi River and they fled back to Uganda.  They were apprehended in Uganda and after interrogation they confessed the murders.  When brought to stand trial for the murders, the Kenya investigators realised that the confessions might not be admitted as they had been procured by torturing the accused.  The prosecution cautioned and warned the accused to forget what they had said in Uganda and warned them that what they said could be held against them.

The accused adopted the statements that they had made in Uganda and the question was whether the statements made in Kenya adopting the Uganda ones were admissible.  The court held that they were admissible as the threats in Uganda had ceased to operate by the time they made the confessions in Kenya and the defining circumstances for removing the threat of inducement had passed.

continued...

CONFESSIONS CONTINUED

Section 27  If a statement is made at a point where

Once a confessional statement is produced and a question of voluntariness is raised, the burden is on the prosecution to prove the voluntariness.  The accuse need only raise doubt about the voluntariness.

Onyango Otonito V. R Page 22 Course Outline

The Appellant was convicted of house breaking and theft; the conviction was based on a confession obtained in curious circumstances which were as follows

The accused was arrested and placed in police custody, he was removed from the cell taken to court and charged with two offences. He was cautioned and after the caution he made an exculpatory statement to a Police Inspector.  He was then returned to the cells where he stayed overnight and the following day, an assistant inspector interviewed him and he admitted breaking into the house.  On the same day he was charged with the two offences again and cautioned.  He proceeded to make an incriminating statement to the chief inspector.  At the trial, the Appellant alleged that the Police Inspector tortured him and it was as a consequence of the torture that he made the incriminating statement.  The trial magistrate had overlooked these allegations for torture and this was an appeal against conviction.

The court of appeal held that the magistrate should have addressed himself to the issue of the voluntariness of the statement.  He ought to have asked the appellant whether he admitted that the statement was voluntary.  If the Appellant denied the voluntariness of the statement, a trial within a trial ought to have been held and this would have established the voluntariness of the statement or otherwise.

Section 26  - words used are if it appears.

Njuguna S/O Kimani and others V. R

In this case, the Appellant were convicted of murder.  There was practically no evidence against them except 4 inculpatory statements amounting to confessions made to a police officer in May 1954.  The accused had been taken to police custody on 15th March 1954 and remained in custody until June of that year.  There was no suspicion of their being involved of the murder in issue whilst in custody they became suspects of being involved in the murder under consideration and it was at this point that they made the 4 statements after they were caution.  The caution went like this “I have received information that you are alleged to be connected with the offence I am inquiring into.  Do you wish to say anything followed by the usual words “anything you say might be used in evidence’ the statement did not disclose the offence and the question was whether these statement were admissible against the accused persons and the court held that

1. It is the duty of the court to examine with the closest care and attention all the circumstances in which a confession has been obtained from an accused especially when the accused has been in custody for a long time.

2. The onus is upon the prosecution to prove affirmatively that a confession has been voluntarily made and not obtained by improper or unlawful questioning.  The prosecution also has to prove that any inducement to make the confession had ceased to operate on the mind of the maker at the time of the making.

The case of Njuguna is an authority for the that its is incumbent to the prosecution to prove the voluntariness of a confession if any doubt is alleged.

ARE VOLUNTARY CONFESSIONS ALWAYS ADMISSIBLE?

No!  A voluntary confession is not always admissible.  A confession has to conform to technical rules established in Section 28 and 29.

Section 28 deals with people making confessions whilst in police custody.  Even though a statement be voluntary if it is in violation of Section 28 it will not be admitted, it has to have been made in the presence of a Magistrate or Police Officer of the rank of sub Inspector and above. 

Section 29 – this deals with statements or confessions taken by police officers by persons who are not in police custody.

Criminal Law Amendment Bill seeks to amend Section 28.  right now the law is that there is a distinction of confessions made by people in police custody and those not in police custody.  There have been arguments against the wide powers given to the police in taking confessions.  This comes in the backdrop of what was the position in the Indian Evidence Act, confessions made to police officer of whatever rank were not admissible and the issue of have confessions made to police officer of whatever ranks is an offshoot of the emergency period and had been brought in for expediency.

The amendment seeks to make confessions admissible only when they are made in court.

Who is a Police Officer?  For the purposes of this section a Police Officer includes all persons that are vested with the powers of a police officer by law.  It is not restricted to persons in uniform but whoever is empowered by law to exercise those powers they would fall in this category.  It also includes police officers in foreign countries (see Kaluma V. R)

Masola bin Msembe  

This case defines a police officer and is to the effect that if a person is arrested by persons performing the duties of a police officer in the service of a foreign country, then for the purposes of our law, those would be police officers.

The question of rank is seen as important, the fact that you have delineation suggests that rank is important.

Kenyarithi s/o Mwangi V. R

This stresses the importance of rank and in this particular case statements taken by a police corporal were held to be inadmissible because they did not adhere to rule on rank

R V. Mwanda and others Crim Case NO. 100 of 1977

It held that rank is a rough and ready measure of intelligence and responsibility it is assumed that once an officer attains a particular rank, a measure of intelligence and responsibility is assumed.   This may not always be the case but it is so assumed.

Section 28 – confessions made in police custody are only admissible if made in from of a police officer of the rank of sub inspector or magistrate and the question is it relevant to whom the confession is addressed what is important is in the presence of whom.

Ngumba & Others V. R

This case is to the effect that if the statement is made to any other person, it is inadmissible unless the magistrate or the police officer of the requisite rank is present.

Rashidi s/o Sadala V. R (1950) 17 E.A.CA. 24

Accused made a confession to a fellow prisoner in remand and it was in the presence of the governor of the remand prison.  The question was whether that confession would be admissible.  It was held that it was admissible because even though the governor was not technically speaking a police officer, he could actually fall within the broader definition of who a police officer is.

R V. Shamsuddin Kassim (1944) 11 E.A.C.A. 90

Which is to the effect that if a person has duties assigned to them which are akin to those of a police officer, that in itself does not make them a police officer qualified to take the statement.

In Rashidi Sadala, the point is that the term police officer is broadly interpreted and we are looking at the level of police officer the governor of the prison might be.

Joseph Ndung’u Kimani V R (

Ishmael Kanyari V. R

Immediate presence of a police officer

WHAT IS POLICE CUSTODY?

Is it jail? Cells?

The interpretation is that police custody does not refer to cells alone or to situations where a person is under arrest.  It means any state of affairs when one comes into contact with the police and cannot depart at will.  You don’t have to have been placed under arrest it could be a situation where a police officer has summoned you and you could not depart where they could prevent you from leaving.

R V.  Sangutet Page 23 of course outline (question of what is police custody)

What is the evidential value of statement that are made in police custody?  We are looking at the fact that their voluntariness is going to be an issue and also at the capacity for abuse of power.  By authority of the case of Njuguna s/o Kimani, a statement that is made in police custody is not necessarily inadmissible but it has to be scrutinised to see whether it was voluntary or not.

Judges Rules that have to be adhered to when taking confessions besides rules in S. 28 and 29.  there are 9 judges rules and the fact that you have all the safeguards 

1. When a police officer seeks to discover the author of a crime he may put to any person any question pertaining to such crime; whether such a person is a suspect or not;  this is giving the police officer a wide net and they are mandated to put any question to any person in custody or not.

2. When a police officer decides to charge a person with a crime, he should caution that person before putting any questions to them.

3. Persons in custody should not be questioned without a caution being administered

4. If a prisoner wishes to volunteer any statement, the usual caution should be administered with the last words of caution being be given in evidence.

5. ‘Do you wish to say anything in answer to the charge?’  You are not obliged to say anything in answer to the charge unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence. (care should be taken to avoid any suggestions that a person’s answers can only be used in evidence against a person coz it can [prevent people from making statements.

6. Where a prisoner gives evidence before the administration of a caution.  Such statement is not rendered inadmissible merely because of the lack of caution but in such a case, a caution should be administered as soon as possible.

7. A prisoner making a voluntary statement must not be cross examined.  No question should be put to the prisoner about the statement except for the purpose of removing ambiguity about what he said.

8. When two or more persons are charged with the same offence and their statements are taken separately, the police should not read these statements to the other persons charged.  But each of such persons should be given by the police a copy of such statements.  Nothing should be said or done by the police to invite a reply.  If the person charged wishes to make a statement in reply, the usual caution should be administered.  

9. Any statement made in accordance with Judges rules should whenever possible be taken down in writing and signed by the person making it after it has been read to him and he has been invited to make any corrections he may wish.  

The criminal procedure in this country make these rules applicable in Kenya where the law is silent.

Applicability of the Judges Rules has been discussed in the following cases

Anyangu V. R (1968) E.A.L.R 

Ibrahim V. Republic (1914) A.C. 609

R V. Boisin (1918) 1 KB 

These are rules of practice in the taking of confessions not necessarily legal rules.  They are in the interest of the accused.

RETRACTED AND REPUDIATED CONFESSIONS

When a statement made by an accused person is produced in trial, the accused may allege that they never made the statement.  They may admit having made the statement, but allege that they only made it because of inducement threat or promises made by a person in authority.  when an accused person denies ever having made a statement, he is said to have repudiated the statement..  where the accused admits having made the statement but says that they only made it as a result of an inducement threat or promise, the accused is said to have retracted the statement

Tuwa Moi V. Uganda

This case distinguishes retracted confessions from repudiated ones.

At page 84 a retracted confession occurs when the accused person admits that he made the statement recorded but now seeks to recant, to take back what he said generally on the ground that he had been forced or induced to make the statement.  In other words that the statement was not a voluntary one.  On the other hand, a repudiated statement is one which the accused person avers he never made.  the judges in that case proceeded to say that in terms of effect, there is not really much difference between a repudiated confession and a retracted confession because the implication are the same that is that such statements should be treated with caution and should not be the basis of a conviction unless it has been corroborated in some material particular.

To determine whether a repudiated or retracted statement is admitted, there is going to be a trial within a trial.  The procedure for a trial within a trial is given in the case of 

Steven Muriungi & Others V. R

The usual practice is for the defence to raise the issue of repudiation or retraction,  the prosecution calls witness to prove that the statement was properly taken and they can be cross examined.  The accused could make a written statement challenged the statement or opt to give a statement on oath or call witness to attest to the evidence. It is up to the Judge to decide whether a statement was admitted or whether it was properly taken.  A trial within a trial happens in both the High Court and the Magistrate’s court.  Where there are assessors, they are required to leave the court during the trial within the trial. If the statement is ruled admissible, the trial within a trial is repeated for the benefit of the assessors.

IN WHAT LANGUAGE SHOULD A CONFESSION BE RECORDED

An accused person should be allowed to make a confession in a language of his choice and where the recording officer is familiar with the language the accused opts to use, it should be recorded in that language.  This is to oviate or avoid the risk of the accused saying that they were misunderstood or where they may even say that they were at cross purposes with the recorder of the statement.

If an interpreter is used in the making of the statement, both the original statement and the translation must be produced to verify the accuracy of the translation.  Essentially, the balance tilts in favour of the accused person.

Onchau s/o Osigai V. R (1956) 23 E.A.CA. 586

This authority for proposition that the interpreter has to be competent, responsible persons and in interpreting care has to be taken to conform to rule 7 of the judges rules.

Section 30 of Evidence Act

Goes against the grain of Sections 26, 27 28 and 29  the amended seeks to repeal Section 30.  what is the use of having safeguards?  The courts have ruled that judges always of discretion.

Nayinda S/O Batungwa V. R (1959) E.L.R 288

This case provides that the judge has discretion and in exercising the discretion the judge will look at the totality of the circumstances and decide in the fairness of justice to the accused person.  It will not always be admissible and the Jude could still exclude it.  The circumstances do not render the statement inadmissible but the judge can allow or disallow.

Section 31:

  Confessions that lead to discoveries.  Was a confession voluntary or not.  If it leads to discovery, both the facts discovered   and that … are admissible in evidence.

Statement taken whether voluntary or not and leading to discovery.   The evidence as relates to leading to discovery will be admissible.  The possibility of Section 31 may be abused by the police officers seeking to secure a conviction.  The police can plant evidence and it is important for the judge to ascertain the truthfulness of the discovery whether it is real or a staged discovery.  The criminal law amendment bill seeks to repeal Section 31.

Sawe Arap Kurgat (1938) K.L.R 68

Mwangi s/o Njoroge V. R 91954) E.A.CA. 357

In the Mwangi Case the court of Appeal was of the view that even under Section 31 Judges have a discretion to exclude evidence leading to a discovery if they think it is necessary to avoid abuse of the legal provisions.  The facts were as follows

The accused was surprised in an ambush by two Homeguards, he shot one of them dead while the other one escaped unhurt.  The accused was seeing stooping as if to hide something and he then came to the other guard to surrender.  Asked to show where he had hidden the gun or risk being shot, the guard following him closely with a rifle ready to shoot, the accused stated “ Come, I will show you where I hid the gun.” The gun was discovered.  The Judges were of the view that much as the statement could be technically admitted under section 31, they had a discretion to exclude it as it had been procured at the threat of death and therefore misuse of the law.

Kenyarithi s/o Mwangi V. R

Section 32 – Definition of confession.  Confessions that implicate a co-accused.

It is to the effect that where two or more people stand a joint trial and one confesses implicating …..    the confessions can be admitted.  The anticipated confessions at S. 32 has to be

Definition more strict than the one found in S. 25.

Courts exercise a lot of caution in admitting statements especially where they are dealing with accomplice statements.  While under S. 141 accomplice evidence is admissible and can found the basis of a conviction, courts have as a matter of practice required corroboration for accomplice evidence.

Muriungi V. R. – caution exercised by courts in dealing with accomplice evidence.

CORROBORATION

The evidence Act does not define corroboration. But the term refers to evidence which supports some other evidence that an accused has committed the offence with which he is being charged.  It is evidence which is relevant, admissible, credible and independent and which implicates the accused person in a material particular.  And this is definition given by Keane in his book, The Modern Law of Evidence, 1994 Edition

In the case of DPP v Kilbourne 91973) 1 ALL ER 440; (1973) AC 720,  Lord Reid asserts that ‘there is nothing technical in the idea of corroboration when in the ordinary affairs of life one is doubtful whether or not to believe a particular statement. One naturally looks to see whether it fits in with other statements or circumstances relating to the statement.  The better it fits in, the more one is inclined to believe it.  The doubted statement is corroborated to a greater or lesser extent by the other statements or circumstances with which it fits in.”

And he goes on to say that,   “Any risk of conviction of an innocent person is lessened if conviction is based upon the test of more than one acceptable witness.

Essentially what all we are trying to do here is to define what corroboration is. And we are saying that it is evidence which is offered to strengthen other evidence. And all these things we are saying about it fitting in with others is basically fortifying that statement. And the reason that you would need fortification for evidence is if that particular evidence is given in dubious circumstances or it is given by a category of witnesses who may not be very creditworthy. And basically that is just the context within which we discussing this issue.

What were the facts in the DPP v Kilbourne? And this will help us to see instances in which the need for corroboration might arise. The respondent was convicted of one offence of buggery, another offence of attempted buggery and five counts of indecent assault on two groups of boys.  The first four counts related to offences in 1970 and it was with regard to one group of boys and the second set, that is the three others, were committed in 1971 against a second group of boys.  The defence put forward was one of innocent association.  In essence what the accused was saying is that he didn’t indecently assault the boys; he didn’t behave towards them in an untoward manner, that he innocently associated with them. 

The judge directed the jury that they would be entitled to take the uncorroborated evidence of the second group of boys if they were satisfied that the boys were speaking the truth as supporting evidence given by the first group of boys. So here you have two sets of evidence. The one set given by one group of boys. Remember we said that offence was committed in 1970, the other one in  1971. An what the judge is telling the jury here is that if they are convinced that the second group of boys are telling the truth, then they can use that evidence  to support the evidence that was given by the first group of boys. In essence that the evidence of the second group of boys could corroborate the evidence of the first group of boys. 

The accused was convicted. The Court of Appeal however quashed the conviction and the matter went to the House of Lords.  And the House of Lords held that the judge’s direction was proper and the respondent was properly convicted since the sworn evidence of a child victim could be corroborated by evidence of another child victim of alleged similar misconduct.  And this is so where the evidence is admissible and indicative of the accused person’s guilt. 

I should point out that this is not the position in this country. In this country the evidence of one child cannot corroborate the evidence of another child. The Criminal Law Amendment Bill, which I believe has been published again this year, seeks to get to the position where the evidence of a child victim can be corroborated by the evidence of another child victim. And this has been as a result of campaigns by different actors and especially FIDA in a case they had where a man was accused of having defiled his twin daughters and the court ruled that the two girls could not corroborate each other’s evidence, which meant that because there was no other independent testimony to fortify the evidence of the one child or the other child, the accused could not be convicted . The evidence was seen as not sufficient to sustain a conviction. Of course other issues were raised in that case as to whether you could look for corroboration in other circumstances. For instance, there was evidence that the two girls were found to have a venereal disease that their father had which would offer the corroboration, other than just the evidence of the children.

In the same case, Lord Hailsham stated that the word corroboration means no more than evidence tending to corroborate other evidence. And he goes on to says that in his view it is evidence which is partly admissible and also relevant. It is evidence that is credible and relevant. And it is evidence which if believed confirms the available evidence in the required parts.  And here the assumption is that not all evidence is going to need corroboration. But the evidence that needs corroboration, the evidence that is going to corroborate it has to be evidence that is admissible and evidence that is relevant and also it has to be evidence that is believed confirms what evidence you have before the court. It is supposed to confirm support or strengthen other evidence rendering that other evidence more probable than it is standing on its own.

The same point on what corroboration is, is discussed in DPP v Kilbourne 91973) 1 ALL ER 440; (1973) AC 720 (1916) 2 KB 658, where Chief Justice Read says, “Evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime.  In other words, it must be evidence which implicates him, that is which confirms in some material particular not only the evidence that the crime has been committed but also that the prisoner committed it.” 

And right there then in the rendition of DPP v Kilbourne, R v Baskerville and in think in DPP v Hester, right there you have a clear definition of what corroboration is. 

So will now move to discuss what the rationale is. But even before the court goes on to answer the question whether evidence needs to be corroborated, it has to consider firstly whether the evidence it has before it is credible. Before you begin to look for fortifying, strengthening, confirming evidence, you have to be convinced that the evidence you have before you is credible because no amount of corroboration can render incredible evidence credible. That is a principle of law and you should look the case of R v Jipkering arap Kosgey.  It is authority for the proposition that no amount of corroboration would render incredible evidence credible. So the court has first to inquire as to whether the evidence that it has before it is credible before it even goes on to look for fortifying evidence, strengthening or confirming evidence.

Secondly, the corroborating evidence must also be credible. It should be credible. And again of course remember we said it has to be independent. It has to be credible and independent and should not be mere repetition of the evidence on record.  And here again the principle to look out for is the principle at section 143 of the Evidence Act to the effect that  “no particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.”

So essentially you can prove your case by the evidence of one witness. You do not need a requisite or specific number of witnesses. That being the case then you do not just come to court to rehash evidence that is has been stated before. The evidence that is coming in to corroborate has to be independent, it has to be credible on its own. It shouldn’t be a mere repetition of the evidence on record.

And thirdly, except where statutes provide otherwise, each case stands on its own facts and it is therefore not possible to say in advance which evidence will go to corroborate the other in a particular case. Because every case except where a statute expressly says otherwise, will stand on its own facts. It is not possible to predetermine or to know in advance which evidence will go to corroborate the other in a particular case. It is all a matter of practice and experience, turning on the facts of each particular case.  

As a general rule, there is no requirement that evidence be corroborated or that a tribunal of fact be warned of the danger of acting on uncorroborated evidence. So as a generally rule really there is no requirement for corroboration. And remember again we are going back to the principle at section 143 that there is no requirement that you bring in the evidence of a specific number of witnesses. You can just have one witness carrying the day.  

A person is free to adduce evidence corroborating other evidence tendered and this may help especially where their case is weak. But the court has the jurisdiction to prevent administration of superfluous evidence for reason of cost and time. Essentially what we are saying is, as a general rule there is no requirement for corroboration or that the judge should warn the jury that it shouldn’t convict, or on the dangers of convicting on corroborated evidence. That being said, a person can bring in evidence to strengthen other evidence tendered especially where their case is weak. But even in those circumstances, remember the court does not have forever to sit and listen to people. So it has jurisdiction to say that that matter has already been testified to and in the interests of saving time and money could actually stop you from bringing in evidence especially where that evidence is superfluous.

And all this is going to betray the main principle that we are making or that we are stating that there is no requirement for corroboration. And in fact corroboration is going to be in many cases a waste of the court’s time, which then would lead to the point that you only ask for corroborating evidence where that is absolutely necessary. And asking for corroboration or requirement is an exception to the general rule. Like all rules of evidence the rule is larger than life but the exceptions are even larger. There are exceptions to this rule that corroboration is not required. And this falls generally into three categories:

1. firstly where corroboration is required as a matter of law. So there may be instances where the law requires that certain kinds of evidence be corroborated. And in those cases it will be because of the nature of the evidence or because of the person that brings that evidence before the court.

2. Where corroboration is not required as a matter of law but the tribunal of fact or jury must be warned as a matter of law of the danger of acting on uncorroborated evidence.  Examples are where you have accomplices testifying for the prosecution, where you have evidence of complainants in sexual related offences.

3. There are those cases where corroboration is not required as a matter of law but courts have evolved practice to warn themselves of the dangers of acting on uncorroborated evidence.  Examples are confessions which are retracted or repudiated.  It also covers confessions by mentally handicapped persons and methods of identification.  It is the nature of the evidence that is being tendered that has made courts evolve this practice.

WHERE LAW REQUIRES CORROBORATION

1. Offence of procuration; (S.47 48 Penal Code) for prostitution and other immoral purposes;  Prostitution is not an offence but procuration and leaving off benefits of prostitutions.   Since the offences of procuration are easily alleged and difficult to refute, a person shall not be convicted of such an offence upon the evidence of one witness only.  That evidence has to be corroborated in some material particular which implicates the accused..  Section 147 of the Penal Code.  Under S. 148 which provides for procuration of defilement by threat or fraud or administering drugs, a person shall not be convicted upon the witness of one person only.  In dealing with procuration it is required that the corroborating evidence must be implicating the accused.  Evidence which leads the accused person to the offence charged.  R. V. Goldstein (1914) 11 CAR 227

2. Speeding:  The opinion of evidence of non-expert is as a general rule not admissible. One of the exception to this general rule however relates to speed.  With speed you can opine even though you are not an expert because the opinion is linked up to what you perceiver.  Section 43(3) of Traffic Act it is recognised that allowing for admission of opinion evidence is opening up doors for wrong convictions, there is danger in convicting on opinion evidence of non experts.  This Section provides that a person charged under the section shall not be liable to be convicted solely on the evidence of one witness to the effect that in the opinion of the one witness, the person charged was driving the vehicle as such great speed.    The assumption of the law is that the opinion of one or two persons that a vehicle has exceeded the speed limit is sufficient to justify a conviction under this provision.  It is required that their evidence should relate to the speed of the vehicle at the same place and time.   Brightly V. Pearson 1938 4 AER 127 , there is also the case of Nicholas V. Penny, 1950 2 KB 46 which held that the court could convict on the evidence of a Police Officer who had checked a vehicle speed from a speedometer of his own car which was driven at an even distance behind the defendant’s care, i.e. there is no need for corroboration.  CROSSLAND V. DPP (1988) 3 AER 712 where it was stated at page 714 that it is plain that the subsection is intended to prevent the conviction of defendant on evidence given by a single witness of his unsupported visual impression of the defendant’s speed.  In this case an accident reconstruction expert had inspected the scene of the accident and had even carried out tests on speed. The court held that this was not solely the opinion witness of one witness because the witness had also carried out other tests…

3. PERJURY:  Under Section 111 of Penal Code a person cannot be convicted of committing perjury or subornation of perjury solely upon the evidence of one witness.  It is not just in judicial proceedings but also where  person makes false statements on oath.  The corroboration need only relate to the falsity of the statement in question.   Under this Section corroboration need not involve a second witness or that it takes any particular form.

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

5. CHILDREN OF TENDER YEARS – under Section 124 of the Evidence Act, notwithstanding the provisions of Section 19 of Cap 15 Laws of Kenya where the evidence of a child of tender years is admitted, in accordance with that Section.  Where the court considers that a child understands the nature of the oath, the child will be sworn.  This section is dealing with instances where a child is sworn…. The accused shall not be liable to be convicted on such… Who is a child of tender years, this was defined in the case of Kibageni V. R  The Appellant here was convicted of murder, the conviction was based on the evidence of two young boys who had been affirmed and they were between the ages of 9 and 14.  there was no admission of the offence although the fact was assumed at the trial.  There was no corroborating evidence and no warning was given as required.  On Appeal, it was held that the evidence of the two boys was of so vital a nature that the court could not say that the trial judges failure to comply with the requirements for corroboration  was one which could not have occasioned a miscarriage of justice.  The second finding was that the failure of the trial judge to warn either himself or the assessors of the danger of convicting on the evidence of the two boys without corroboration was an additional ground for allowing the appeal.  At page 94 the court stated, ‘ there is no definition in the Oaths and Statutory Declarations Act of the expression child of tender years for the purpose of Section 19 but we take it to men any child of any age or apparent age of under 15 years in the absence of special circumstances.  This definition is important when looking at competence and compellability.  Oloo s/o Gai V. R., 

Maganga Msigara V.R the Appellant here was convicted of murder, the prosecution case depended on 3 witnesses included the sworn evidence of a child.  The judge did not warn either the assessors or himself of the desirability of the evidence of child being corroborated.  On Appeal it was held that where there has been proper direction as to corroboration, the court will allow the Appeal even if there was no corroboration unless it considers that no substantial miscarriage of justice has occurred.  The court also held that it would be unsafe to allow the verdict of murder to stand in this particular case and allowed a conviction of manslaughter to be substituted instead.

CORROBORATION WARNING REQUIRED AS A MATTER OF LAW

The law on accomplices for example does not require corroboration.  In this circumstance you have judicial authority or judge made law requiring that warning be given even though the statutes don’t require.

AN ACCOMPLICE TESTIFYING ON BEHALF OF THE PROSECUTION

DAVIS V. DPP is the landmark case on Accomplice Evidence.  It classifies as accomplices the following persons

1. Parties to the offence in question;

2. Handlers of stolen property in case of thieves from whom they receive being on trial for the theft;

3. Parties to another offence committed by the accused in respect of which evidence is admitted under the similar fact evidence rule.  

The rule with regard to corroboration was stated in this case by Lord Simmons as follows:  Where a person who is an accomplice gives evidence on behalf of the prosecution, it is the duty of the judge to warn the jury that although they may convict on this evidence, it is dangerous to do so unless corroborated.  Where the judge fails to warn the jury in accordance with this rule, the conviction will be quashed even if there be ample corroboration of the evidence of the accomplice.  

WHY DO WE REQUIRE CORROBORATION FOR ACCOMPLICE EVIDENCE?

The rationale is that the accomplice may have a purpose of his own to serve, he may give false evidence against the accused out of spite or to exaggerate or even invent the accused role in the crime in order to minimise his own culpability.  Section 141 provides that an accomplice shall be a…..  the accomplice may be do this to shield himself from liability.

Davies V. DPP

The defendant with other youths attacked another group of youths with fists. One of the youths in the other groups died subsequently of stab wounds.  Six youths were charged with the murder but only the defendant was convicted.  Ell was one of the six youths charged but he was convicted of the lesser charge of common assault.  At the trial of the defendant, L testified for the prosecution as to the admission by the defendant of the use of  knife by him.  The trial judge did not warn the jury of the danger of accepting this evidence without corroboration.  The Defendant’s conviction was affirmed by the court of Appeal.  On Appeal to the House of Lords, it was held that in a criminal trial, where a person who is an accomplice gives evidence for the prosecution, it is the duty of the court to warn that although it may convict upon this evidence it is dangerous to do so unless it is corroborated. Secondly the court stated that this rule, although a rule of practice now has the force of law and thirdly where the judge fail to warn as above, conviction will be quashed.  It is in this case where the court defined as to who an accomplice is.

The court addressed its mind to the question of who is an accomplice and opined that from the cases 

1. Parties who are participes criminis in respect of the actual crime charged whether as principles or accessories before or after the fact.

2. Receivers of stolen goods :  R V Jennings (1912) 7 CAR 242

3. Accomplices, parties of another offences committed by the accused in respect of which evidence is admitted under the similar evidence rule. R. v Farad (1945) 30 CAR 168 

R V Moorings

R V Hasham Jiwa – these cases are to the effect that an agent provocateur is not an agent i.e. a person sent by the police as an agent provocateur is not an accomplice and their evidence does not require corroboration.

What evidence amounts to corroboration?

It has to be relevant and admissible 

It has to be independent

Has to implicate the accused or link the accused with the offence – visit the case of R v Baskerfield.

The requirement of corroboration warning in the case of accomplice evidence extends to matrimonial evidence   Galler V. Galler which held that in divorce proceedings an adulterer who gives evidence of his own adultery is in the same position as an accomplice in a criminal case and hence the requirement for corroboration.

Wilson Kinyua & Another V. R (1980) KLR

The Appellant and another person were charged with murder.  Kinyua denied involvement but the second appellant confessed to his guilt and stated that Wilson Kinyua was also involved.  At the trial, the second Appellant objected to the admission of the confession after a trial within a trial the 2nd Appellant confession was admitted even though the maker had disowned it earlier.  Kinyua was convicted on the basis of the confession even though the trial court did not get corroboration for the confession.  On Appeal, the court held that the 2nd Appellant confession was accomplice evidence which needed corroboration.  The court went on to say that repudiated confessions should not form the basis of conviction without corroboration.

SEXUAL OFFENCES – corroboration has become the rule of law.

The rule is that in cases where the accused is charged with a sexual offence, the jury should be directed that it is not safe to convict upon the uncorroborated testimony of the complainant but that if they are satisfied of the truth of such evidence, they may after paying attention to that warning nevertheless convict.  The corroboration requirement in sexual offences stems from the fact that the charge is easy to make and difficult to refute, there is the very present danger that the complainant may make a false accusation owing to sexual neurosis, jealousy, fantasy, spite or a girl’s refusal to admit that she consented to an act which she is now deeply ashamed.  (the effect is to protect the perpetrator against the would be malicious accusations levelled against a defenceless male although while trying to do this you have more guilty people going free. 

Maina V. R

Kongwea V R

The complainant was a middle aged lady who give evidence that while she was going home, she was ambushed and raped.  After the incident she said that the rapist fell asleep and she escaped while the rapist was sleeping and went to complain to her sister,  the sister said that when the complainant came to her, she was trembling, had grass on her hair and she gave a description of the accused including the clothes he wore and a scar he had on the thigh whereupon the accused was arrested and charged.  He was convicted and on appeal the question was whether there was sufficient corroboration.  The court held that there was no sufficient corroboration but that it would sustain the conviction because the complainant appeared a truthful witness.

Njuguna Wangurimu V. R

The complainant here was a young girl who had gone to fetch firewood when she was raped.  She testified that prior to the incident that she was a virgin.  There was medical evidence of blood on her petticoat and the shorts of the accused person had some blood with traces of semen.  There was no evidence that the blood on the accused shorts was the same group as that on the petticoat.  A medical examination on the girl showed that the complainant had been used to having sex, contrary to her assertion that she was a virgin.  The question was whether there was sufficient corroboration.  The court held that there was insufficient corroboration of the complainant’s evidence and consequently the court could not convict.

R V. Ogendo (1940) 10 KLR 25

Where a young gal was found to suffer from the same sexually transmitted disease as the alleged rapist it was held that that medical evidence was sufficient corroboration of the assertion that one was raped.

Margaret V. R (1976) KLR 267

Where it was held that though it is not a rule of law that a person charged with a sexual offence cannot be convicted on the uncorroborated evidence of a complainant, it has long been the custom to look for and require corroboration before a conviction for such an offence is recorded.

WHERE THE COURTS AS A MATTER OF PRACTICE REQUIRE CORROBORATION

Roria V. R. EALR 383

A repudiated and retracted

R V. Turnbull (1977) QB224

Corroboration is not ordinarily required and where required –

Identification by single witness at night;

Repudiated and retracted confessions.

COMPETENCE & COMPELLABILITY

Competence and compellability is a straightforward area of law.  The concern here is who may given

Competence refers to capability to give evidence and a person is competent if he/she is conversant with the matters under consideration and the person may legally be called upon to give evidence of those matters.

A person is compellable on the other hand when he/she can be obliged to go to the witness box and give evidence at the pain of penalty of imprisonment should he or she fail to give turn up.  There are instances when a competent witness is relieved of the duty to give evidence for instance where they have a claim to privilege.  In that kind of circumstance the person is competent but law of statute has exempted them to give evidence.  

A person can generally be a competent witness or they can be competent in restricted cases. They may also be totally incompetent.  

General competence is dealt with at S. 125(1) Evidence Act. 

All persons are competent and it is up to the court to decide whether they have a disability that renders them incompetent e.g. tender years, extreme old age or a disease of body or mind.  The implication is that it is for the court to decide whether a particular person is competent or not and the guidelines are given in S. 125(1).  The idea is if one is able to give rational answers to the questions the court is putting forward, one could be 200 years old or a few months, there is no underage or overage limited.

Under 125(2) even a mentally retarded person or a lunatic is  competent witness unless it can be shown that due to his condition at the particular time he is incapable of understanding the questions put to him and giving rational answers to them due to his sickness of mind.  

Under Section 126 even dumb witnesses are competent witnesses and can give their evidence in any manner which makes it intelligible.  For instance if they can write it down or if they can give it through sign language.  The writing and the signs have to be given in open court because they are treated as oral evidence for purposes of Section 63.

Hamisi s/o Sallum V. R

 This was a trial for murder and the only eye witness was the daughter of the deceased who was a deaf mute.  She came to court with a relative who claimed that she could received information from the witnesses sign and noises. The Judge overruled the evidence.  On Appeal, it was held that such a person is a competent witness if he or she can be made to understand the nature of an oath and if intelligence can be conveyed to and from him/her by means of signs.  This case is an authority for the proposition that even deaf and dumb are competent witnesses if the evidence can be communicated to them through signs.

Apart from cases of general competence there are special cases of competence and these are cases where competence is derived from statute.

The first instance of special case of competence is derived from the accused person.  An accused person is a competence witness for the defence at every stage of the proceedings whether he is charged alone or jointly with others.  This is provided for at Section 127 (2) the accused has however to apply to be a witness and he has a right to keep silent.  The reason is because before the UK 1898 Criminal Evidence Act the accused person was not a competent witness at all.  The spouse of an accused person was also not a competent witnesses, atheists and convicts were not competent witnesses.  The 1898 Criminal Evidence Act made these groups of people competent witnesses.  Before that they were deemed to  be unworthy of credit.

The second special case of competence is a spouse of an accused person.  If a person is a lawful husband/wife of an accused he/she is a competent witness of the defence at every stage of the trial.  This is also provided for at Section 127(2)

Section 127 (4) provides who is a husband or wife for the purposes of this section.  It is to the effect that it is a husband/wife of a marriage be it in a monogamous or polygamous marriage.

Section 127(1) Spouses are competent witnesses in civil cases and here there is no underscoring on whose part.  It could be for the defence or the other party.  There is a change from common law where spouses were not competent witnesses and now they are competent witnesses.

Section 127(3) it is provided that spouses are competent and compellable witness for the prosecution or defence in any case where the other spouses charged with 

1. The offence of bigamy;

2. An offence against morality under Chapter 15 of the Penal Code; or

3. Where the other spouse is charged with an offence affecting the person or property of the wife or husband or such person or the children of either one of them and not otherwise;

Section 127(3) closes the category under which a husband/wife is compellable and it is only in those 3 instances that a spouse can be a competent witness to testify against the other.

These provisions of the Evidence Act buttress the accused persons against self incrimination.

ACCOMPLICES

Section 141 of E.A

Essentially accomplice evidence is admissible and an accomplice is a competent witness and the usual practice is to finish with the accomplice case before calling on the accomplice to testify so that the accomplice does not give evidence in the hope that the court will be lenient with him depending on his testimony.  The statute is clear that it is not necessarily the case that you will sideline evidence because it is given by an accomplice. 

OPPORTUNITY

CHILDREN OF TENDER YEARS

S. 125(1) general competence.  Children are competent unless the court considers them incapable of understanding the questions put to them.  What would prevent them would be their tender age and the Act does not give an age limit below or above which a person can testify.   Kibageni V R

COMPELLABILITY

Normally a competent witness is compellable. But where a witness’s competence derives from statute and this is in instances where a witness was not always a competent witness, then the statute that makes him a competent witness must also deal with the issue of their compellability.

Section 127 (1) (2) (3) it underscores competence as well as compellability.

If a witness is competent and compellable they decline to give evidence or to be sworn at the peril of imprisonment.

Section 128:

Under 128 when you go to court as a witness, you must answer the question but the section cushions the witness because it provides that any answer that a witness gives or is compelled to give by dint of giving evidence to court shall not subject such a witness to an arrest or prosecution save for the offence of perjury.

Section 152 of the Criminal Procedure Act provides the procedure to be followed in the case of stubborn witnesses. It is to the effect that whenever any person appearing in court refuses to be sworn or (b) having been sworn refused to answer any question put to him or (c) refuses or neglects to produce any document or thing, which he is required to produced or (d) refuses to sign his deposition without in any such case offering any sufficient excuse for such refusal or neglect, the court may adjourn for 8 days putting such person in custody unless he sooner consents to do that which is required of him. Privilege may constitute a sufficient excuse.

With regard to husbands and wives spouses of accused person, they were not originally competent, statutes made them competent for the defence at every stage and we only have 3 instances when they are compellable to give evidence

R V. Lapworth 

Hoskin V. Metropolitan Police Commissiosner

Hoskin V. Metropolitan

The husband here was charged with inflicting personal injury on his wife.  The injury was inflicted while the woman was cohabiting with the defendant.  The woman was reluctant to testify and the question was whether she was compellable.  The court held that s the common law wife was incompetent to testify against her husband, she cannot be compelled to testify unless a statute makes a special provision for compulsion.  (S. 127(3)) inflicting personal injury.

R V. Kihandika

R V. Blanchard

In the Blanchard case the accused was charged with committing buggery on his wife,  the issue arose as to whether the wife was a competent witness, the court held yes because the offence involved injury to her person (127(3).  The question has arisen as to why you exclude spouse evidence in some and allow it in others.  Some people argue that spouses are one and should not testify against one another and its only in instances where it would be impossible to sustain a case if their evidence was not available.

R v Pete

TOPIC 2: ILLEGALLY OBTAINED EVIDENCE

Evidence which is obtained by means or acts which are illegal or against the law.

How does a court faced with illegally obtained evidence deal with the evidence, for example evidence obtained in violation of the constitution?  It could also be evidence obtained in breach of other statutes

A common way in which evidence is obtained illegally is through illegal searches and illegal seizures e.g. breaking into somebody’s house and obtaining evidence, through deception, threats, bribes inducement or trickery.

The issue has to be looked at in two ways

1. Section 20 of Police Act

2. Section 118 of Criminal Procedure Code

S. 118 of the Criminal Procedure Code deals with the power that is given to search places.  The power that a Magistrate or police officer may be permitted to search any place, building, ship, aircraft, vehicle, box or receptacle but they have to do this through a certain procedure i.e. Search warrant.  Essentially if you search and find something you are allowed to seize it.  It could be a thing or document.  If you do not have a search warrant the search may be said to be illegal.

Section 20 of the Police Act empowers police officers investigating offences to search any place that they believe has material necessary for the purposes of the investigation. The requirement to get a search warrant may be dispensed with in instances where a police officer believes that the process of getting the warrant is going to cause unreasonable delay.   In these instances what is required is that the officer should record in writing the basis upon which they form the opinion that if they go looking for a search warrant there is going to be inordinate delay.

There are two approaches to illegally obtained evidence

1. Mandatory inclusion;

2. Mandatory Exclusion

Under common law jurisprudence there is mandatory inclusion whereas under US Jurisprudence there is Mandatory Exclusion.

In common law the status is accurately represented by the following words  “it matters not how you get it, if you steal it even, it would be admissible in evidence” statement by Justice Crompton in R V. Leatham The only exception that is entertained under common law is where the evidence consists of a confession which has been obtained in consequence of some inducement or oppression. Even though Crompton says it does not matter how you get it, it will matter if there is inducement or oppression.

A confession that is obtained as a consequence of the deception or inducement of the person confessing is not admissible even though it be relevant.  E.g. a confession made to a colleague to a person in jail has been held not to be confessed to a person in authority.

In civil cases there is no discretion to exclude admissible evidence.  But even in criminal cases there is a conflict between 2 positions i.e. where you admit all relevant evidence to ensure that the guilty are punished and then there is the view that to admit improperly obtained evidence condones and encourages impropriety on the part of the police.  i.e. why go through proper channels if you can obtain evidence illegally.   There is no provision in the Evidence Act to guide us.  For instance if somebody got evidence through phone tapping is it admissible?

We look to the constitution, which protects persons against being subjected to the search of their person or property without their consent.  It also protects against entry to your property by others without your consent.

Under common law, there is the proposition that all relevant evidence is admissible regardless of the fact that it was obtained illegally. Is this a good way to view evidence in light of sometimes the excesses that police can be prone to?  A person may be accused but they still have certain rights.  It is better that 99 guilty people go free than one innocent person to be found guilty.  It is much better that one occasional criminal go free than to condone illegal procuring of evidence.   

Evidence that is relevant to a fact in issue is relevant no matter how it was obtained.

Lloyd V. Mostyn 1842 10 M&W 478 where Chief Justice Goddard says that the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue.  If it is, it is admissible and the court is not concerned with how the evidence was obtained.  This case was quoted with approval in the case of Kuruma s/o Kaniu v. R 1955 1 AELR 236  The Appellant was convicted with being in unlawful possession of two rounds of ammunition contrary to Regulation 8 of the emergency regulations of 1952.  Under the Emergency Regulations only a police officer or an officer above the rank of assistant inspector was empowered to stop and search an individual.  The appellant was an employee of a European settler farmer and had been granted leave of absence to go to his rural home in the reserve.  He was stopped at a roadblock, a police constable stopped him and on searching him found him with the two rounds of ammunition and a penknife.  3 persons witnessed the search but were not called to testify.  The accused was charged and convicted of this capital offence and sentenced to death.  He appealed contending that the evidence used to convict him was illegally obtained.  The court held that the evidence was properly obtained in line with Justice Crompton statement in Lloyd v. Mostyn.

King V. R   1969 1 AC 304

Police obtained a search warrant to search a house belonging to one Joyce Cohen looking for Ganja and this was under the Dangerous Drugs Act.  They read the warrant to Joyce Cohen but apart from Joyce Cohen, there was the Appellant in Joyce Cohen’s House when the police came and they did not read the warrant to the visitor.  The police however searched the appellant and another man in the house and they found the appellant with the drug.  The Appellant was tried and convicted for possession of dangerous drugs and he appealed arguing that the warrant was not directly read to him and thus he was not legally searched.  The court should have excluded the evidence found on his person because the evidence was unfair to him. The court held that there was no way of interfering with the way in which the court exercised its discretion and the court went further to say that this was not a case in which evidence had been obtained by conduct which was irreprehensible insinuating that if the conduct had been irreprehensible the court would have allowed the appeal.  There was a bit of discussion about constitutional rights concerning illegal searches.  

The court in R V. King referred to the case of R v Payne [1963] 1 AER 848  Where illegally obtained evidence was excluded but it refused to be guided by this case.  The facts of this case are that the defendant was taken to a police station following a traffic accident.  He was asked whether he wanted to see a doctor, he agreed to see a doctor.  At no time had he been told that the results of the examination might be used in evidence against him.  It was not made clear to him that the doctor would enquire on whether he was fit to drive.  At the trial for drunk driving the doctor gave evidence that the driver was driving under the influence of alcohol and the defendant was convicted.  He appealed.  The appeal court quashed the conviction on the ground that even though the evidence was admissible, had the accused realised that the doctor would give evidence on the matter of driving under the influence of alcohol, he might have refused to submit himself for examination and in refusing to be guided by this case, the court in King v R stated that there was no evidence in the King’s case of oppressive conduct or trickery on the part of the police.  The court essentially seems to be saying that illegality is graded, ie. That there is illegality that can be allowed to pass but there are cases when it is reprehensible.

Jeffrey V. Black [1978] QB 490 The defendant was arrested by 2 police officers of the drug squad for stealing a sandwich from a public house.  The officer improperly searched his home and found Cannabis and the defendant was subsequently charged with possession of drugs.  The accused put up in his defence that his house was searched illegally.  The first court ruled out the evidence of the search as inadmissible having been illegally obtained.  The prosecution appealed and the appeal was allowed.  The Appeal court held 

1. That the mere fact that evidence is obtained in an irregular fashion does not of itself prevent that evidence from being relevant and acceptable to court;

2. Any court has the discretion to decline to allow any evidence brought by the prosecution if they think it will be unfair or oppressive to allow it.

R V. Sang [1979] 2 AER P 1222

The Appellant was charged with conspiracy to utter forged US Bank Notes.  He pleaded not guilty before the case opened.  Counsel for the Appellant applied for a trial within a trial to show that the Appellant had been induced to commit the offence by a police informer acting on the instructions of the police.  The appellant was averring that for the inducement, he would not have committed the offence.  Counsel was hoping to persuade the judge to exercise his discretion to disallow the evidence of the commission of the offence.  The Judge however ruled that he had no discretion to exclude the evidence.  The appellant changed his plea to guilty and was convicted and sentenced.  He appealed against the judgment and the appeal was allowed by the court of appeal and then the state appealed to the House of Lord.  The House of Lord held that

1. A Judge in a criminal trial always has discretion to refuse to admit evidence if its prejudicial effect outweighs its probative value;

2. Except in the case of admissions, confessions and evidence obtained from an accused after the commission of an offence, a Judge has no discretion to refuse to admit relevant admissible evidence merely because it had been obtained by improper and unfair means.

3. The use by the police of an agent provocateur or an informer to obtain evidence was not a ground on which the discretion should be exercised. Such a factor may however be considered in mitigating the sentence imposed on the accused.

4. The defence of entrapment had no place in English Law and could not be accepted by a Judge as a ground for exercising the discretion to exclude the prosecution’s evidence of the commission of the crime.

It would appear that the R v. Sang articulates the common law stand succinctly if evidence is relevant to a fact in issue it is admissible provided it is not obtained under inducement, confession or after the commission of an offence.  The common law position is almost the opposite of the position which exists in the US Today.  The US Jurisprudence tries to run away from the law.  The law that is used to exclude illegally obtained evidence is the 4th Amendment which reads as follows:-

“the right of the people to be secure in their persons, houses, favours and effects against reasonable searches and seizures shall not be violated and no warrant shall issue but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.”

The question as to whether illegally obtained evidence is admissible in the US has been debatable.  

Weeks V. United States 232 US 283

The police went to defendant’s house without warrant, they searched and took possession of various papers and articles that they found in that house and these were turned over to the courts.  The police later went to the premises hoping to get more evidence and carried away more letters and this second search was also without a warrant.  The whole question as to whether evidence obtained by the police and the prosecutor was admissible was discussed and the judges stated “if letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offence, the protection of the 4th Amendment is of no value.”

This was a Supreme Court Decision .

In Wolfe V. Colorado it was suggested that there was need for a uniform rule, even after the Weeks case the courts had continued to apply common law rules and in this case of Wolfe the court decided to have a uniform rule.

In Map V. Ohio 367 US P 643 The defendant was convicted in an Ohio state court for possession of obscene literature.  The conviction was affirmed by the Ohio Court of Appeal and later by Ohio state supreme court.  The obscene materials were discovered during a search that was not subject to a warrant on the defendant’s house.  The Ohio supreme court held that evidence obtained by an unlawful search and seizure is admissible in a criminal prosecution. The court continued to state that under the Supreme Court of United States in Wolfe v. Colorado a state was not prevented by federal constitution from adopting the rule as it prevailed in Ohio.  On appeal to the US Supreme Court it was held that as a matter of due process evidence obtained by a search and seizure in violation of the 4th amendment is inadmissible in a state court as it is in a federal court.  If the supreme court holds evidence to be inadmissible it should apply across the board.

The US Courts have gone even further and held that even if the evidence is not obtained illegally, where such evidence is obtained in such a manner as to be reprehensible according to the spirit of the constitution, such evidence shall not be admissible.  Note the importance that jurisprudence attaches to people’s rights.

In Kenya the reigning position is that in Kuruma s/o Kaniu v. R.   This Case has been criticised in the context within which it was decided.  It was decided during emergency regulation times not withstanding provisions of S. 76 of the Constitution.   The position seems to be that the end justifies the means.

 

TOPIC 3: HEARSAY

Hearsay

Hearsay refers to testimony given in court by a person other than the one who perceived it. As a general rule hearsay is inadmissible. For you start from the premise that reporting in court what you heard another person say is not going to be admitted in court as evidence. And this draws from section 63 of the Evidence Act, which explicitly provides that oral evidence must be direct. So you are not allowed to go to court to say this is what another person said. Oral evidence must be direct. And when you are dealing with documents it is going to be required that the author of the document presents that document in court. And the reason that we are saying that the author of the document should come to court is so that if you want to cross-examine them you have the opportunity to cross-examine them.

The rule against hearsay is stated as follows: ”A statement made by a person not called as a witness which is offered in evidence to prove the truth of the fact contained in the statement is hearsay and it is not admissible. If however the statement is offered in evidence, not to prove the truth of the facts contained in the statement but only to prove that the statement was in fact made it is not hearsay and it is admissible”- Justice De Silva 

So essentially then what determines whether hearsay is hearsay or not is going to be pegged around the purpose for which the statement is given. If you are giving the statement to prove the truth of the contents of the statement, you are giving the statement made by another person seeking to get people to believe that which is contained in the statement, that is hearsay. But on the other hand if you state what another person said, not to prove the truth but to establish that those people actually made the statement, that is not hearsay. Because essentially then what you are doing is just reporting what another person said and you did perceive of what that other person said because you heard them. Is this clear?

When you are using the statement to prove that the statement was made, here you are attesting to something that you perceived of because you heard it had taken place. But where you are giving a statement to prove the truth of what was contained in the statement which somebody else had perceived of, that is hearsay. So for instance if a person comes and says, James told me Peter stole the till from the bank. If you are trying to prove the fact that Peter stole from the bank then you can see there that you will not have direct perception of what happened. If in fact you did hear James say that Peter stole, you perceived of that fact because you did hear James say that Peter stole. Is that clear?

The case that you should read that concerns this rule of hearsay is the case of Subramanium v Public Prosecutor (1956) WLR 965. And the facts of this case were as follows: The appellant was charged and convicted of being in possession of firearms without lawful excuse. In his defence, he asserted that he was acting under duress in consequence or a result of threats uttered to him by Malayan terrorists. When he attempted to state the contents of the threats, he was overruled by the judge. He appealed against conviction arguing that the judge should actually have listened to what the import of the threat was. And of course the judge would have argued that if he was allowed to say what the terrorists had told him that would be hearsay. The court of appeal held that the conviction had to be quashed because what the terrorists told the appellant should have been admitted as original or direct evidence. It would have shed light on subsequent actions of the appellant. 

So essentially here what the court is saying is that the appellant should have been allowed to utter the threat because they would not have been threatening-may be he was told if you don’t fire the firearm we will kill your mother. So the fact that the statement was uttered is one thing, but the truth of what was in the statement is another thing. Whether the terrorists had the capacity to kill his mother or whatever else they threatened to do is not what we are seeking to hear. What we are seeking to find out is whether a reasonable person would have behaved in the same way as the appellant did in the circumstances. And you should note in this case the statement I was reading to you on what is hearsay and what is not hearsay was stated. In the judgment of Justice De Silva at page 959 to 970. That is where that statement that we are talking about, what is and what is not hearsay is stated by this particular judge:

”A statement made by a person not called as a witness which is offered in evidence to prove the truth of the fact contained in the statement is hearsay and it is not admissible. If however the statement is offered in evidence, not to prove the truth of the facts contained in the statement but only to prove that the statement was in fact made it is not hearsay and it is admissible”

The other case that we should look at getting to what is hearsay is the case of Myers v DPP 1964 2 All ER 881. This is a case you must read. The appellant in this case was charged and convicted of receiving a stolen motor vehicle. He was in the business of buying wrecked motor vehicles for repair and resale. The chief prosecution witness was the person in charge of the records department of the relevant motor vehicle factory. He testified that every time that a car was manufactured a workman would note down the engine number and the chassis number of the car amongst other details and these would be marked on some card. He also testified that the cylinder head number would be indelibly struck on the cylinder head block so as to be inerasable. The card would then be microfilmed and stored. At the trial the microfilms were produced on oath by the witness and schedules were prepared from this microfilm. The schedules showed that the cylinder block numbers of the car in question belonged to the car allegedly stolen. The appellant was convicted on the basis of this evidence. The court of appeal affirmed the conviction and the appellant appealed to the House of Lords. The House of Lords held that the trial court and the court of appeal improperly admitted hearsay evidence in the form of the microfilm and Lord Reid at page 884 stated: “The witness would only say that a record made by someone else showed that if the record was correctly made a car had left the workshop bearing three particular numbers. He could not prove that the record was correct or the numbers which it contained were in fact the numbers on the car when it was made.”

Do you see the argument here? That essentially the basis of the microfilm was not something that the witness could testify to because he did not put in the particular entry. He did not actually author the document. Remember we said by dint of section 63 of the Evidence Act, the person that authors the document should produce that document. So here the vehicle had left the workshop with some numbers. Those had now been reduced into microfilm and you have a third person seeking to produce that as evidence. And essentially what the court is saying here is that the only thing the witness can say is that some record had been made of a car that left with some numbers. But he could not actually vouch for the veracity of the truth of what was contained in those documents. And for that reason, that was hearsay. This is why we are saying the House of Lords said the trial court and the court of appeal had improperly admitted hearsay evidence. And because this became a bit technical, Lord Reid ends his statement by saying:

”This is a highly technical point but the law regarding hearsay evidence is technical and I would say absurdly technical”

The other case that it would be a good thing to look at just to illustrate how hearsay presents itself, is the case of Patel v Comptroller of Customs [1965] 3 All ER 593. The appellant here imported from Singapore into Fiji some coriander seeds shipped in bags. He correctly engrossed (filled) the customs import entry form and on investigation at arrival five bags of what he had imported were found to be contained in within another outer bag. So essentially here you have double bagging. The outer bag of these five bags was marked with the appellant’s trade name but it had marked on it “Produce of Morocco”. In the important entry form the appellant had filled that the coriander was a product of India. So in respect of the five bags that had “Produce of Morocco”, the appellant was charged and convicted in making a false declaration in a customs import form, on a customs import entry. And we are saying that he had stated that the seed originated from India when in fact it originated from Morocco. 

On appeal, it was held that the evidence of the writing on the bag was inadmissible. It was hearsay. And this was because the court could not ascertain that in essence the coriander seed had actually come from morocco even though the bags were marked “Produce of Morocco”. There were actually saying nobody knew who and when those markings on the bags, Produce of Morocco, were made.  And essentially then nobody could speak to them testifying to the fact that the particular coriander seed had originated from Morocco.  So they could not be the basis of conviction for making a false entry because the person who wrote them could not be called to vouch for the truth.

The other case that would illustrate the same point is Junga v R (1952) AC 480 (PC). The accused was charged and convicted with the offence of being armed with the intent to commit a felony. The police witness gave evidence at the trial, saying that they had been told by a police informer of the alleged attempted offence. The informer was not called to give evidence and his identify was not revealed. The accused was convicted. On appeal it was held that the trial magistrate had before him hearsay evidence of a very damaging kind. Without the hearsay evidence the court below could not have found the necessary intent to commit a felony and that being the case the Court of Appeal allowed the appeal against conviction. Given that here was hearsay evidence, you didn’t call the informer who would have actually given first hand knowledge of the fact that led to the conviction of this person. And that being the case, the Court of Appeal says that in all fairness the conviction should be quashed.

Another case is the case of Tenywa v Uganda (1967) EA 102(U). The accused was accused of having stolen a bicycle. The bicycle was seized by police officers acting on this information. On examination the bicycle was found to have a forged number plate. The accused was convicted of the offence but appealed and on appeal it was held that the police report from Kampala suggesting that the original number on the bicycle was altered was hearsay. It should not have been admitted. Because essentially there was nobody to say this was the number. When you say there was a fake number on the bicycle you are basically saying that it is not the number that was on it, so you should have a person to testify to what was actually the original number. But just to say that it has been changed, even saying that what has been found is what was. Because essentially the person that marked the number on the bicycle was not called to give evidence.

The learned trial magistrate was wrong in law to have admitted in evidence the report alleged to have been obtained from Kampala, which suggested that the original number of the (stolen) bicycle had been altered.  That piece of evidence was hearsay and should not have been admitted… unless the expert who had examined the bicycle had testified before the court and been cross-examined on the point as to how he arrived at his conclusion.

Over and above those cases you should also look at the cases of  

Magoti s/o Matofali v R (1953) EACA 232.

“A plan of the locus … was made and produced in evidence by a police corporal.  Various points on the plan are marked with letters and it bears a legend showing what these points represent… as to what each point represented he merely said ‘I got the information from Antonia, (P.W. 2), as to positions and ownership.’ ‘This, of course, was merely hearsay and his evidence should have been supported by the evidence of the witness Antonia to the effect that she had, subsequent to the event, pointed out to the corporal the places where the various incidents, to which she had testified, had taken place.”

R v Gutasi s/o Wamagale (1936) 14 EACA 232

“We note that the statement made by the appellant (Ex.P.1) to Mr. Harwich, Superintendent of Police, was admitted, although the two interpreters who had carried out a double interpretation were not called as witnesses.  Without their evidence this statement was strictly inadmissible since Mr. Harwich could only speak to have taken down what he was told by the second interpreter.”

Waugh v R (1950) AC 203 (PC).

And basically these cases also discuss instances where courts are faced with hearsay evidence and how they treat them. And it would be useful to read those to begin to understand what kind of information, the court is really going to take into account in determining whether a particular piece of evidence is hearsay or not. And essentially that is about the rule, that is you should not go to court to say what you heard another person say to establish the truth of that which you are saying. 

There are exceptions to the hearsay rule and actually the exceptions are many more than the rule itself:

1. the first one would be admissions, formal and informal admissions. And these are covered at sections 17-24

2. confessions are another exception to the hearsay rule covered at sections 25-52

3. thirdly, statements made by persons who cannot be called as witnesses are an exception to the hearsay rule. And these are laid out at section 33 of the Evidence Act.

4. evidence given in previous judicial proceedings is also an exception to the hearsay rule. And that is covered at section 34 of the Evidence Act.

5. statements made under special circumstances are also an exception to the hearsay rule. And a number of these are laid out in from section 37 through to 41.

6. statements in documents produced in civil proceedings are also an exception to the hearsay rule. Section 35 and 36

7. Res Gestae is also an exception to the hearsay rule.

8. affidavit statements especially where they are based on information are also an exception to the hearsay rule.

9. statements taken from sick persons who are about to die are also an exception to the hearsay rule. And these are hazards(?) under the Criminal Procedure Code.

10. And also evidence by certificate covered at sections 77 and 78.

We will begin by looking at statements made by persons who cannot be called as witnesses:

Statements by persons who cannot be called as witnesses

Section 33 lays out what those statements might be. It actually has 8 examples of such statements and these are all, in their own right, exceptions to the hearsay rule. And therefore I could not agree more with Lord Reid that the rule against hearsay is technical and absurdly technical.

The opening paragraph at section 33 gives the context within which those exceptions covered at that section apply:

“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, 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-“

So it is not all the time that you have, for instance, under section 33 (a) a dying declaration or whatever else, that it is going to be used in evidence. What is detailed at section 33 introduction will have to apply. 

So essentially the statement will be admissible if the person make them is dead, cannot be found, has become incapable of giving evidence, their attendance cannot be procured. Or even if it can be procured that would actually occasion expense and delay which in the view of the court is unreasonable. If those circumstances apply then  (a), (b), through to eight would be admitted. Is it clear?

So each of these eight exceptions there is that rider: cannot be found, is dead, the attendance cannot be procured without delay or cannot be procured at all. So if it is alleged that a person is dead, do you think that this statement that a person is dead, is enough? It is not. The fact of the death has to be ascertained.  How do you prove that a person is dead? By a death certificate, the presumption of death, by people who participated in their burial can be called to testify to the fact of death. But essentially the fact of death is a fact that needs to be proved until you have proved that the person is dead through the screening, then you couldn’t actually bring any of these statements  …. And if a person cannot be found the fact of not being found must relate to the time that he is required to give evidence. So you cannot just say that you have not been seeing the person…if no effort has been made to procure them to come and give evidence. So the fact of not being found must relate to time during which you are sought to give evidence. 

And the authority for this supposition is the case R v Ndolo (1926) 10 KLR 11.

The court considered the meaning of “cannot be found” in connection with S. 33 India Evidence Act and Section 34 of Kenya Evidence Act where the language is identical.  Here the witness left his place of employment and was not served with a summons for the date of the trial.  The trial was adjourned and assistance from the Registration Department was of no avail, as his movements could not be traced.  It was contended that his deposition should be read.  The defence argued that has the prosecution taken reasonable steps to discover his whereabouts in preparation for the first date of hearing he would have been available.  The court held that the words “cannot be found” refer to the time when the witness is sought to to attend the trial, and do not refer to the state of affairs at some earlier period.  There was no question as to whether the search had been a diligent one, and the words appear to imply that such a diligent search should be required before the condition is held to have been fulfilled.

And also the case of Thomhill v Thornhill (1965) EA 268 (CA), would be authority for the proposition that the fact of not being found has to be proximate to the time you require the person to give evidence.

What is an unreasonable delay, or unreasonable expense is a matter within the discretion of the court, dependent upon the circumstances of a particular case.

In this case “the learned trial judge also stated in his judgment that the cost and inconvenience of bringing a witness from the United Kingdom would not be great in these days of rapid and inexpensive air travel.  With great respect, I disagree that air travel in these days is inexpensive, although I agree that it is rapid.  But the question seems to be this – is it justifiable legally to put the petitioner to the expense of bringing a witness from the United Kingdom to testify about a fact which is not denied and in respect of whose evidence the court has a discretion to accept on affidavit, particularly as the petition is not defended and no application was made to have the witness orally examined?”

Having satisfied those introductory matters, the first category of statements made by persons who cannot be called as witnesses, are dying declarations. Section 33(a)states:

“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 into question;”

So when the cause of death of a person is in issue and this could be in either civil or criminal proceedings, the statement made by such a person which deals with the circumstances of the cause of the death is going to be relevant. And the case to look at here is the case of Terikabi v Uganda (1975) EA 60. The deceased in this case gave or made a statement giving the cause of his death but no evidence of the circumstances relating to the death. And of course the question was: would this be admissible? Because essentially people are looking at it as being that he has to give both cause and circumstances. So this case was testing whether if a statement gave only cause, would it be admissible? If it gave only circumstances but no cause, would it be admissible? And the court here held that the statement was admissible, that it was not necessary that the statement refer to both the cause and circumstances. Mention of either cause or circumstances was sufficient.

In certain jurisdictions it is required that for a dying declaration to be admissible the person making it must have haven in imminent expectation of death. And the assumption here is that if you are in imminent expectation of death, you are unlikely to tell lies because you are expecting to be going to your maker and you do not want to go tainted by untruth. But of course you know that it fallacious as well because you may be revengeful against a particular person that you do not mind if after you are dead they spend all their lives behind bars, accused of having killed you. In Kenya, however that is not a requirement. So it is not required in this country that for a dying declaration to be admissible one would have to be in imminent expectation f death. And that is actually contained at section 33(a), if you look at the sentence beginning, “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 the case to look at here is a case that we will look at again when we look at confessions. The case of Swami v King-Emperor (1939) 1 All ER 396 (PC). In this case the court considered the admissibility of evidence by a widow that the deceased had told her that he was going to a particular place on the invitation of the appellant’s wife and that the appellant’s wife had asked the deceased to go and receive payment of his dues at that place. So the court was considering whether evidence of a statement by a widow that the deceased had told her he was going to a particular place on the invitation of the appellant’s wife to pick up payment of his dues. And this statement was held to be admissible even though it was made before the cause of death had arisen. So the deceased here was not in imminent expectation of death. But they had made a statement that shed light into the circumstances that led to the death  that he was going to pick up his due.

Again on the same point you should look at the case of Kaluma v R (1968)EAR 349. In this case, three appellants were convicted of the murder of two women in Kenya. The three appellants happened to be wanted by the Uganda police and the two women they were accused of having murdered were part of a search party which had been sent to Kenya to find and arrest the appellants. Evidence was admitted at the trial that one of the two women had made inquiries about the appellants whereabouts and this had been reported to the appellants. This evidence was admitted on the grounds that it was relevant as to the motive or reason for the murder. The appellants were convicted and they appealed challenging the admission of the evidence about the inquiries and the court held that evidence about the inquiries was admissible under section 33 of the Kenya Evidence Act as a statement made by a person who is dead as to the circumstances of the transaction, which resulted in the death. So it was not in the category that would be hearsay and inadmissible. It was an exception to the hearsay rule. So the person was dead and under section 33 (a) a statement made by a person who is dead on the circumstances of their death would be admissible as an exception to the hearsay rule.

So essentially then what would be the requirement under section 33 (a) for admission of a statement as a dying declaration:

1. it has to relate to the cause and or circumstance of the death of the maker and not to any other person. So it has to relate to your death as the maker of the statement, not to the death of other people. And the authority for that preposition is the case of Mohamed Warsama v R.(1956) 23 EACA 576. In this case the deceased had made a series of dying declarations which were precise and detailed and if true conclusive. He had in his declaration also stated the cause of death of another person and the question was whether that part of the dying declaration that identified another person was admissible. And the court held, no,  it was not admissible. The question was whether that part of the dying declaration that pointed to the cause of death of another person was admissible. Remember we said that the deceased made many dying declarations of a precise and detailed and if true conclusive. But in those dying declarations did not just talk about the cause of his own death. He actually talked about the cause of death of another person. And the court was enquiring as to whether that part of the statement that talked about the cause of death of the other person was admissible. And the court held, no. the  dying declaration has to related to the cause and or circumstances of the death of the maker, not of other people. So they would admit what was pertaining to his death, not to the death of other people. 

2. The second rule is that the statement must be proximate to the death. So if you had made a statement about your death in the year 2000 and then you die this year, the whole question of the proximity of the statement to your death is going to arise. And the authority here is Antonio v Barugahare v R (1957) EA 149 (CA). The witness here had given evidence that the deceased woman had told her six weeks earlier before she died that the accused had asked her to marry him. So the deceased had confided to the witness, six weeks prior to her death, that the accused had asked her to marry him. The deceased had also asked the deceased according to the report to lend him money to pay his tax. She had refused to yield to either demand. And she was found dead six weeks later. And the question was whether what she had confided to the witness was a dying declaration. Was the information that he had passed to the witness, that she had been asked to marry the accused and lend him money a dying declaration. The court held, not, it was not a dying declaration because the facts alleged were not proximate or related to the death and the circumstances were not those of the transaction resulting in the death. You should compare that holding to the holding of the case R v  Kabateleine s/o Nchwaba (1946) 13 EACA 164. In this case, a complaint made by a deceased person to her headman two days before the house in which she was sleeping was burned, was held directly related to the occasion of the deceased’s death and was a circumstance that resulted in her relevant. Essentially here you are looking at two days and 50. So while six weeks are seen as not proximate, not close enough, here the complaint had been done two days earlier and that is the duration between the complaint and when the death occurred, is what makes the ruling that it is part of the transaction that resulted in death. 

3. The dying declaration must be complete. And we should here revisit the case of Beddington. You should also look at the case of Waugh v R (1950) AC 203 (PC). R v Beddington (?), you looked at that when we were looking at res gestae or was it similar facts?   In Waugh’s case, the declaration was held to be inadmissible because it was not complete on its face. The deceased in this case fell in a terminal comma when he was making the statement leaving it incomplete. So basically what the court is saying is that you don’t know what the person might have said if they had had the opportunity to complete the statement, and for that reason, being incomplete, then you could not say it is a statement that should be admitted. The same point is made in the case of R V. Charles Daki s/o Daki (1960) EAR 34. The deceased was in this case admitted into hospital suffering from gun shot wounds. When he was asked who shot him, he said, “Charles Daki has killed me, he shot me with a gun. I saw him with a gun. He was on a motorcycle. A friend of mine had visited me and I went to the garage with him.” At this point the doctor intervened and the deceased died subsequently. Daki was charged and convicted on the basis of the statement, despite his counsel’s objection. On appeal the statement was held inadmissible on the grounds that the deceased might or might not have added something… And essentially because this statement was not complete, on appeal it was held that this statement could not be used as basis of conviction because for a dying declaration to be admissible it had to be a complete statement. For example, if he had stopped at,”Charles Daki killed me. He shot me with a gun.” And then he did not express willingness or desire to say other things. Basically he had gone on to say—he was now going off on a tangent. What was he going to say when he said a friend visited him, we went to the garage? May be the friend started quarreling with Charles Daki…nobody knows what this person wanted to say… which means the statement was incomplete because you don’t know what he might have said if he had not expired at that point. Let us also look at the case of Pius Jasunga s/o Akumu v R (1954) 21 EACA 331. In this case, a witness who was an assistant police inspector gave evidence that he saw the deceased lying on the road with a wound in his chest. When asked who had injured him the deceased replied, ‘Pius Jasunga had stabbed me’. Later at the hospital, the deceased made a statement to the superintendent of police during the cause of which he got weaker and weaker and he was unable to sign the statement. There was no corroboration of this story and it had been made in the absence of the accused by a man who was suffering from a terrible wound, from which he died subsequently. And the court here held that even though as a rule of law it is not required that a dying declaration should be corroborated, as a matter of practice you should not convict on uncorroborated dying declaration, even though as a matter of law there is no requirement that there be corroboration or independent credible evidence fortifying a particular statement, and in this case a dying declaration. There is no requirement of law. But here one of the points they noted was that as a matter of practice the court should always require corroboration. And they said that the weight of a dying declaration that is made in circumstances suggesting that the person might have said something more, must be less than the one that is fully made.  A dying declaration that is made in circumstances that suggest that the person may have said other things but he was prevented from saying those other things because he expired, the weight attached to that dying declaration must essentially be less than one that appears to be complete. And over and above that the principle that even though law will not require you to corroborate a dying declaration, as a matter of practice the court should always require that such be corroborated. And that is going to be the final requirement of a dying declaration. A dying declaration requires corroboration as a matter of practice. When you look at rules on corroboration, you will see that the law on evidence requiring corroboration is generally divided into two. There are those circumstances where the law actually requires that you get corroboration. Like when you have evidence of children of tender years. There are a number of cases where the law requires that—I think evidence of the complainant in rape case is required by law to be corroborated. But over and above that, courts in exercising caution—and again being guided by the need to be fair to the accused person—have devised instances where even though the law does not require corroboration they will ordinarily require corroboration. And a good example is where you have a dying declaration. That a dying declaration should not form the basis of conviction if it is not corroborated and corroboration here is talking to bringing in credible, independent, strong evidence to fortify that which is being state in the evidence requiring corroboration. It is also required for confessions that are repudiated or retracted, where a person has made a confession and they later say that either they never made it or that they only made it because they were tortured or they were coerced into making it. That kind of confession, even should the court the court decide to admit it, it will ordinarily as a matter of practice required that it be corroborated. 

Statements made in the ordinary course of business

The second category of statements under section 33 are statements made in the ordinary course of business.

Section 33(b) states:

“when the statement was made by such person in the ordinary course of business, and in particular when it consists of an entry or memorandum made by him in books or records kept in the ordinary course of business or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce, written or signed by him, or of the date of a letter or other document usually dated, written or signed by him.”

So for a statement to satisfy the requirements of 33(b) it has to be a statement being in the ordinary course of business. And section 33 (b) gives examples of those to include entries or memorandum in books or records, and these have to be regularly kept. For instance, books of account, ledgers, journals. It could also be acknowledgements that are written and signed for the receipt of money, receipt books, or documents used in commerce. These would be admissible as an exception to the hearsay rule. And the assumption here is that the person making them has no motivation to falsify them. They are kept in the ordinary course of business; they would actually be entered. But remember in the case of Myers v the DPP what seems to have been record that were kept in the ordinary cause of business were actually ruled to be hearsay because the person making them did not actually come to testify to them. And this is again to talk to the introductory part of section 33, that it has to be that the person is dead, cannot be found, is incapable of giving evidence, cannot be procured or even they can be procured it will be as a consequence of delay and expense which is unreasonable. So in Myers v the DPP it was not established that a person had died, or could not be found. So essentially for this book to be admissible it is not for all time. The exception comes in because what is contained at the introduction at section 33 is already applicable, that there is a problem in getting this person here because they are dead, etc. 

And the cases to look at there are

Commissioner of Customs v SK Panachand (1961) EA 303 (CA)

The company imported some blankets allegedly from West Germany, No import licence was required for goods from West Germany, although a licence was required for goods from other countries.  The Customs seized the blankets acting on information that they, in fact, had come from East Germany.  The company, seeking the return of the blankets, in order to support its case produced two documents, an invoice, and a document signed by a Mr. Blok in which it was stated that the invoice, on which appeared the words “Country of Origin – West Germany”, was correct.  The Company claimed that these documents satisfied the burden placed upon the Customs Acts, i.e. to prove the country of origin of the blankets.  

The decision involved S. 33 of Evidence Act covering cases where the attendance of a witness cannot be procured without unreasonable delay and expense, subs. (b) dealing with statements or documents made in the ordinary course of business.  The main issue was whether the invoice and document signed by Mr. Blok were admissible in evidence to prove country of origin.

The court held basically that the “any person” who will “give evidence of any other fact” in this case, as set forth in S. 110 I.E.A was Mr. Blok, who by means of his signed document would give evidence of the “other fact”, i.e. that the blankets came from West Germany. Before Mr. Blok could “give evidence through the media of the documents, S. 110 placed the burden upon the Company of proving:

1. that Mr. Blok’s attendance at the trial could not be procured without unreasonable delay of expense,

2. that Mr. Blok’s signed document was used in the course of business, and

3. that the document was actually signed by Mr. Blok, the person whose attendance it was unreasonable to procure.

Since the Company had failed to meet its burden of proving these conditions precedent to the admission of the documents they were held not admissible in evidence and the court ordered condemnation of the blankets.

You should also look at the case of R v Masalu (1967) EA 355 (T).

You should also look at Gichunge v R (1972) EA 546.

And all these cases would be illustrating what might be statements made in the ordinary course of business. The cases of Masalu and Gichunge are particularly interesting because they deal with post-mortem reports and would seem to indicate that fact report can technically be admitted as a statement made in the ordinary course of business if they constitute a statement of fact, rather than a statement of one’s opinion, when you are talking about the cause of death, when you are talking about either a statement of fact rather than an expression of opinion, that would be admissible.

You should also look at the case of R v Magandazi and four Others (1967) EA 84 (CA), which would also talk to documents made in the ordinary cause of business. 

The accused were employed in Uganda to carry loads to the Congo.  On a charge of theft of a portion of the loads by the accused, a letter from an agent of the complainant’s firm resident in the Congo was placed in evidence, but the writer was not called.  The Court said:

“… a letter was produced … by the same witness purporting to come from the agency of the complainant’s firm in the Congo and showing shortages in the goods received.  (Section 30(2) quoted).  The provision of the Section should in my opinion be only sparingly applied and rarely, if ever, be used where the statement goes to the root of the whole matter before the Court, as in the present case.  Further the letter, although it may be said to have been written in the ordinary course of business to report a loss, appears also to be in the nature of a special letter written with a view to the present prosecution.”  The letter was not admitted.

Another case might the case of  Idi bin Ramadhan v R (1914) 2 ULR 108.

The statement of a police constable was put in evidence during the course of the trial after it had been proved that the constable in question had proceeded on leave.  Presumably the statement purported to be put in evidence under s. 32(2) of the Evidence Decree.  GRAY C.J. quoted from Magandazi’s case and from Ningawa v. Bharmappa “I think in using the phrase ‘in the ordinary course of business’ the legislature intended to admit statements similar to those, admitted in England, as coming under the same description.  The subject is clearly dealt with in Chapter XII of Mr. Pitt Taylor’s Treatise on the Law of Evidence, and the case(s) which he has collected show that this execution to the general rule against hearsay tends only to statements made during the course, not of any particular transaction of an exceptional kind such as the execution of a deed or mortgage, but of business, or professional employment in which the declarant was ordinarily or habitually engaged.  The phrase was apparently used to indicate the current routine of business which was usually followed by the person whose declaration it is sought to introduce.”

Statements against the interests of the maker

The next category of statements admissible under section 33 are statements against the interests of the maker. 

Statements against the interests of the maker 

Section 33 (c )  reads:

“When a statement against the pecuniary or proprietary interests of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages;”

So essentially a statement which is against the interests of the maker would be admissible as an exception to the hearsay rule. But remember against the introductory part of section 33 has to apply before you admit that it makes an exception to the hearsay rule. And over and above that you have to look at: Is it really against the interests of the maker? And the interests of the maker might be pecuniary or relating to money, proprietary where it affects property or the ownership of the property of the maker, or it could also be one that exposes a person to a claim for damages or to prosecution. And the rationale here is that in the ordinary course of life a person is not going to make a statement against their own interests and would only make such a statement if it is true.

 Case to look at is the case of Marie Ayoub v Standard Bank of SA (1961) EA 743 (CA).And the statement here was made by the deceased. There was a statement in a letter where the deceased was said to be owed for the running of his estate. A statement in a letter in which it was said that the plaintiff were indebted to the deceased for the running expenses of an estate. The question arose as to whether the statement would be an exception to the hearsay rule under section 33(c ) and it was held not admissible because the maker was not dead. The person who had made the statement saying they were indebted to the deceased for the running of the estate was not dead. So the prerequisite for the operation of section 33 (c ) had not been satisfied.

The other case you could look at is the case of Dias v R (1927) 3 Uganda Law Reports 214, where the accused was charged with the offense of falsifying books of account and the prosecution relied on a letter written by a deceased clerk to the head of the department which charged the accused with having ordered him to make the false entries. So the question was, could such a statement be admitted under section 33 (c ) as one against the interests of the maker. Who was maker of the statement here? The deceased clerk. And who was the accused?  He was not the deceased. So the court here held this statement was not proper one for section 33 (c ) equivalent to Uganda, that it could not be admitted as an exception to the hearsay rule because it was in the very interest of the deceased clerk to make that statement so that he could pin responsibility on the other person rather than on himself. So it was not actually a statement against the interests of the maker because the maker was charging another person with falsifying the books and therefore it was not the right statement for the application of this exception. 

The next exception at section 33 is statements expressing opinion as to a public right or custom. And remember again it is when the maker of the statement would be dead, cannot be found and all those things that are contained in the introductory. So statements made by persons who cannot be called as witnesses are admissible if they give an opinion on the existence of custom and for such to be admissible the people ought to be a person that might be aware of such right or custom and the statement should been made before any controversy as to the right of custom arose. So you could not make a statement to suit your claim in a forthcoming suit. The statement ought to have been an unguarded statement of opinion on a public right or custom and it ought to have been made before there was any controversy as to that public right or custom.  So you made the statement just before the institution of the suit, then that is not going to be admitted because you would have tailored it for that specific—and when we talk about a public right it is one which is held in common by all members of the public. For instance, when people are talking about a right of way in the form of a highway, people who would have know that right of way was there, a public right of way was there and it has to be one that affects a considerable portion of the community. For instance also when you talk about the boundary of a village. And remember that for it to be admissible as an exception to the hearsay over and above it having been made before there was a controversy, the person ought to be a person who can be considered as having competent knowledge, person likely to know.

Statements that relate to any relationship 

The next exception is at subsection (e), which reads:

“When the statement relates to the existence of any relationship by blood, marriage, or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised;”

So essentially state of persons who cannot be called as witnesses will be admissible when they relate to the existence of any relationship. And the relationship could be a relationship by blood, by marriage or by adoption. And the person making the statement ought to have been a person who would have had special means of knowledge of the existence of that relationship. So it is not just any person. It is a person who had special means of knowledge. And remember again it is only in instances where that person cannot be called as a witness because of the variety of factors, that they are dead, cannot be found, etc.  And the statement must also have been made before there was a dispute as to the existence of the relationship or not. So there ought to have been an unguarded action. 

And the case to look at here is the case of Seif Ali Bajkni and others v Hamed Bin Ali (1945) 7 Zanzibar LR 13. This involved a situation where a child was born 10 months after the marriage between the parents was dissolved. During the hearing it was sought to introduce a document concerning the relationship, written by the alleged father. The document was written in contemplation of the suit because the father disputed the parenthood and they made the document in the event that the child should ever file suit. If the child files suit against the father then the father would turn around and say there is a problem here, I do not accept that you are my son. So the document was written in contemplation of the suit because the father disputed his fatherhood of the child and the document contemplated a situation where the child might file any suit against the father.  And the court held that the document conclusively proved the existence of the controversy and it should be rejected. Because remember we said that the document ought to have be an unguarded assertion. It should not be one done in contemplation of a suit. The document itself conclusively proved the existence of the controversy at the time it is alleged to have been written because the father only wrote the document because they disputed their parenthood of the child. And they were writing it to guard themselves in the event that this child should ever fight it against the father. And so it should be rejected because the document ought to have been made when there was no dispute as to the existence of the relationship but you see here the father was dead but he had written the document. But he had only written the document for the purposes of establishing certain matters. 

Statement relating to family affairs

The next exception is at (f), statements relating to family affairs. Those will also be admissible and these ought to be made by persons who would have knowledge, again. And they could also be on tombstones, family portraits, or other places where such statement should be made. It could also be in a will or a deed. So if you have a statement relating to family affairs in any of those places and it is made by a person who cannot be called as a witness, it would be accepted as an exception to the hearsay rule. And the assumption here is that there will be nobody inserting falsities in those kinds of places, where you are talking of a tombstone, a family portrait or a will or a deed. Those are solemn documents, so if you have those kinds of statements made by person who cannot be called as witnesses, there will be admissible. 

Statements made by persons who cannot be called 

Then at section 33 (g) where you have statements made by persons who cannot be called, which are contained in a deed or other transaction that establish a custom, those will be admitted. When a statement is contained in any deed or other documents which related to any such transaction as mentioned in section 13 (a). 13 (a) gave the establishment of customs or rights. Those would be admissible. And again here you are talking about statements that show when the custom or the right was created, when it was claimed, where it was modified, instances when it was recognized, or when it was asserted or denied. All these could be admissible if they are made by a person who cannot be called as a witness. And this provision includes private as well as public rights. So it is not just for public rights. It is also for private rights.

Statements made by several persons expressing feelings or impressions 

And finally under section 33, statements made by several persons expressing feelings or impressions on their part, which are relevant to the issue in question. So if a number of people who cannot be called as witnesses had made statements expressing their feeling or impressions  which feelings or impressions are relevant to the matter in question, that is going to be admissible. For instance, if you have a number of people saying they were apprehensive, they had made statements to the effect that they were apprehensive that something was happening or that they got the impression that things were not being done in the way they should have been done. And again here of essence to admissibility is that they made them as unguarded statements. They are not tailor made for a specific procedure. 

I urge you to read Durand for the explanation of this statement because as you see this is just one section, which has eight sub-sections. And we are just scratching the surface of hearsay. 

So we still have to deal with the next category of statements that would comprise exceptions to the hearsay rule. And again to reiterate what Lord Reid said that the rule against hearsay is very technical and actually take a bit of reading through to begin to appreciate why would it be admissible. And remember when you are reading the exceptions in section 33 you have to read that bearing in mind the introductory bit: on when is admissible, it is not for all time. It is when those passes operate. So if you are bringing a statement when the maker is not dead, it is not going to be admissible. If you are bringing it when it is not against the interests of the maker or it is against the interests of the maker but the person could still be found to come and testify to the issues directly, then it is not going to be admissible. And look at the exceptions to the hearsay rule as a way in which the legislature is trying to bring information that would otherwise be unavailable. So you are thinking, you know you cannot get the best because the person that has the best evidence is dead, cannot be found, and all those things. And so you allow for the second best. And given that it is your second best, that is why for instance for dying declarations you have the requirement that it be corroborated. So the fact that it is hearsay and it is being accepted as an exception to the general rule, is going to have a bearing on the weight that is attached to that kind of evidence.

Continued...

Evidence given by a witness in judicial proceedings is admissible as an exception to the Hearsay Rule and S. 34 to prove the fact stated. You allow hearsay evidence because it is the best under the circumstances and it saves the court time.

Under Section 34(a) the reason you allow this evidence is because the best evidence is not available, the witness has to be dead, cannot be found, is incapable of giving evidence, is kept away by the adverse party, his presence cannot be obtained without delay and expense which is unreasonable.  Section 34 (1) (a) gives further requirements as follows.

1. The subsequent proceeding has to be between the same parties or between their representatives in interest.  This is because they would have had the opportunity and right to cross-examine the witness.

2. The adverse party must have had the right and opportunity to cross examine the witness in the first proceeding.

3. The questions in issue were substantially the same in the first as in the subsequent proceeding.

Nassir Haji Page 18 7th Case course outline

A witness had given evidence before the magistrate at the preliminary inquiry and then proceeded to England on leave.  He proceeded on leave before counsel for the accused had reserved his cross-examination and defence.  During the trial in the High Court the evidence of the witness was admitted under S. 33 of the E.A. (a person who cannot be found) on appeal, admission of this evidence given in the preliminary enquiry was                                                     challenged.  The court held that the evidence had been properly admitted as there was a right as well as an opportunity to cross-examine at the enquiry.  The fact that the counsel for the accused had not exercised that right was not the point, the point was that they had opportunity and a right they did not exercise and could not now say that the witness was not available.

The requirement that the questions in issue should be substantially the same presents problems to the courts.  Why take them back to court if they have been dispensed with?  It is applicable where you have a retrial, i.e. on appeal where a retrial is ordered.  There is also the question as to whether the previous proceedings was criminal and the current one a civil are the questions the same?   One needs to go back to notes on Res Judicata and when that applies and read again

Queens Drycleaners V. East African Community

Under Section 35 statements in documents produced at a civil proceedings are admissible as an exception to the hearsay rule.  S. 35 is to the effect that a written statement is admissible to prove the facts contained in it if it is made by a disinterested person with personal knowledge of those facts or if it is made by one who in the discharge of his duty records information supplied to him by a person with personal knowledge.  The recipient of the information who would be recording it should be recording it in a continuous record. In some circumstances where a person has a personal knowledge and being disinterested puts down matters, if the original document is produced in such circumstances, the maker need not be called, if the maker is dead, incapable of giving evidence etc.

The court allows this evidence to expedite reception of evidence, you are dispensing with calling maker of document because they are not available and the evidence is valuable in determining the case.

The court can also admit the written evidence or a certified copy of that document, there are certain documents you could prove through certified copies i.e. public documents .  there is also allowance for secondary evidence under S. 68  this is done in the interest of expeditious and inexpensive disposal of a case.   Under this case, who is an interested person and the Act has not defined who an interested person is 

Lord Devlin in the case of Bearman’s V. Metropolitan Police Receiver 1961 1 WLR 44

Lord Devlin stated in page 52 “no witness ought to be held to be a person interested on a ground that would not be taken into consideration as affecting the weight of his evidence if it were actually in court”  Lord Devlin is saying that the question as to who an interested person is is a question of fact.

Section 36 addresses itself to the issue of the way to be attached to a statement rendered admissible by Section 35.  Section 35 deals with documentary evidence.  It states that weight is pegged to the circumstances relating to accuracy.  What odds are there that this statement is accurate.  You will also be looking at the point the statement was made whether it was contemporaneous with the occurrence of the event.  You will also be looking at the question as to whether the maker had any incentive to conceal or misrepresent the fact.  This is a fact of determination since what appears to be the case on the face might not be the real case as the person recording the event could have had personal reasons for any number of reasons.  If a journalist recorded the event, it could be the journalist was not recording the events as a disinterested party but it might turn out that he had a relative who was involved in the accident to determine whether there is incentive to misrepresent the facts.

STATEMENTS MADE UNDER SPECIAL CIRCUMSTANCES

They are covered under Sections 37 – 41 part 6 of the E A.

The first category of such statements are entries in books of accounts.  These are admissible if they are relevant but a book has to exist with a number of entries not just a single entry and if the books related to the sale and delivery goods, there has to be corroboration by a person who loaded the goods, or one who saw them unloaded or loaded.  S. 37 entries in books of account regularly kept are admissible.

Odendo V. R (1974) E.A. 6

This case is an authority for the proposition that where books of accounts are concerned the need for corroboration is important under Section 37 and also where there is delivery of goods corroboration is essential. 

Section 38 has an example of an entry in a public record.  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 or by any other person in performance of a duty specially enjoined by the law of the country in which the book register or record is kept is admissible.  For example if a priest performs a wedding, they are expected to keep a register even though they are not public officers.

What constitutes a public record?

In the case of Ladha & Others V. Patel & Others (1960)

A public record must be intended for the use of the public or be available for public inspection.  It should be a record of fact not opinion.

Chandaria V. R page 18 of the Course outline 9th Case

The whole question of what constitutes a public official and the court of appeal judges ruled that

Section 38 does not apply to documents made by members of the public when detailing information necessary for their individual use whether or not those documents are kept in a public department such as the immigration department.  This case dealt with forms that a traveller had filled at the airport and a person sought to introduce this evidence in court under the provision of any other person.  The judges were of the view that the provision referred to people other than public officials who find themselves under a specific duty to maintained or keep entries in any record of a public or official nature.

Under Section 39 – A statement made under special circumstances

Statements and representations of 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, as to matters usually stated or represented in such maps, charts or plans, are admissible.

The reason for this is to expedite matters and you have the de minimis to expedite matters. 

Section 40 – statement made under special circumstances

Statement of fact contained in laws and official gazettes.  40(a)

1. in any written law of Kenya, …

2. in any written law of Kenya …

Section 41 deals with statements as to law contained in books.

The court has to form an opinion on the law of a country.  Essentially the  fact that it is authored under the authority of government is what is going to determine whether it is admissible.  

STATEMENTS OF PERSONS WHO ARE SERIOUSLY ILL

They are admissible as an exception to the hearsay rule.  It is provided for under criminal procedure rule.  It is necessary to serve the adverse party that you intend to take a statement from a particular person who is seriously ill, this way you accord them an opportunity to come and cross-examine the witness.  If the person later dies or cannot be procured, then the statement will be admitted as an exception to the hearsay rule.

EVIDENCE BY CERTIFICATE

Under Section 78 of the Evidence Act, photographic evidence is admissible in criminal cases upon the production of a certificate by an authorised officer authenticating the photograph. Authenticating is through granting a certificate to the effect that this is what was actually taken for example a birth certificate is issued instead of calling witnesses to testify to ones birth.  

AFFIDAVITS

These are written statements on behalf of people (deponents) it has to be sworn or affirmed and could contain statements of fact which the deponent is able to prove from his own personal knowledge. You cannot swear an affidavit on matters that are not within your personal knowledge.

Life Insurance Co. of India V. Panesar

TOPIC 4: APPEALS

 APPEALS

Every decree may be appealed from unless barred by some law.  However an appeal does not automatically lie against every order.  Order 42 Rule 1 gives a long list of orders from which an appeal lies from as of right.

If you want to appeal on an order that is not on the list, you have to seek leave of court.  When you have a judgment you extract a decree.  Orders are gotten from small interim applications.

You can appeal against an order.

Amendments of pleadings, appeals lie as of right.  Judgement in default is appealable.

For example the Armed Forces Act if you have a decision you can appeal to the High Court.  High court used to be the final court for petitions but now you can go to the court of appeal

Application for leave to Appeal should be made in the first instance to the court which made the order that is being sought to be appealed against.  It should be made by Chamber Summons or orally in court at the time of making the order.

Appeals generally or the hierarchy of appeal

An appeal from the subordinate Courts

Appeals from the Resident Magistrate’s court lie to the High Court.  Appeals from the High Court lie to the court of Appeal.

Appeals from the subordinate courts are heard by one judge of the high court except in certain particular cases where the Chief Justice can direct that the appeal be heard by two or more judges.  Such directions may also be given by the Chief Justice before the hearing of an appeal or at any time before the judgment is received.

Where there are two judges and they disagree, under Section 60 where an appeal is heard by a court consisting of two or more judges, the appeal should be decided in accordance with the decisions of the majority of the judges.  In a case of two judges with a divided opinion, the appeal should be dismissed and to prevent that they normally put an uneven number of the Judges on the bench.  Section 60 it says that the opinion of the majority of judges should be upheld but Order 40 says that where the court is equally divided, the Appeal should be dismissed.  Section 60 will take precedent in this case.   Read Githunguri case.

When a decision has failed to determine some material issues of the law

It also has something to say where it was alleged that there was substantial error or defect in the procedure.

HOW ARE APPEALS FILED?

Appeals from the High Court are filed by lodging a memorandum of appeal which is usually set out in the same manner as pleadings.  The grounds are set out in separate paragraphs and numbered consecutively and normally the ground will indicate the reasons why you object to the decision of the court. It is very important to make sure that your grounds are set out comprehensively because you will not be able to make submissions on any grounds not set out in your memorandum of appeal. You would have to seek the leave of the court to submit on a new ground.  The court has discretionary powers and can deny you to do that.

The detailed format on how to prepare a memorandum of appeal is set on in Sections 65-69 and in order 41.  Section 65-69 enact the substantive law as regards fast appeals while order 41 lays down the procedure relating to it.  The expression appeal and the expression memorandum of appeal denote two distinct things.  The Appeal is a judicial examination by the higher court of the decision of a lower court.  Whereas the memorandum of appeal contains the grounds on which the judicial examination is invited. 

In order for an Appeal to be said to be validly presented, the following requirements must be complied with

1. It must be in the form of a memorandum setting forth the grounds on which one objects to the decree.

2. It must be in the format and present as a record of Appeal.

3. It must be signed by the Appellant or their Agent.

4. It must be presented to the Court or to such officer as appointed by the court.

5. The Memorandum must be accompanied by a certified copy of the decree.

6. It must be accompanied by a certified copy of the judgment unless the court dispenses with it.

7. Where the Appeal is against a money decree the Appellant must deposit the decretal amount or furnish the security if required by the court.

HOW TO PREPARE A MEMORANDUM OF APPEAL

A Memorandum of Appeal should be prepared by carefully considering the following:-

1. The Pleadings;

2. The Issues – issues substantially in issue

3. The Findings thereon;

4. The Judgment and the decree and also the record of proceeding in court.  (the judge erred and misdirected himself in issues raised before him)

You can only appeal on one issue.  Suppose the court finds you negligent and thus liable.  You can appeal on the ground of damages and say for instance that the judge erred in assigning the quantum of damages.

PRESENTATION OF THE APPEAL

The Appeal must be presented within a prescribed time. If the limitation period for filing an Appeal has expired, you can apply for an extension of time to file the appeal.  

Read the Appellate Jurisdiction Act (Court of Appeal Rules)

STAY OF EXECUTION

The Appeal does not operate as a stay of execution.  Even if an appeal has been lodged, and all parties served, the decree holder can proceed and apply for execution.  However the judgment debtor can apply for a stay of execution on the ground that an appeal is intended or that an appeal has been filed.  If no appeal has been filed but is intended the application for stay of execution should be made to the court that has given the order or the decree but an appeal has already been filed, the application for stay should be made to the appellate court. 

WHEN IS AN APPEAL DEEMED TO HAVE BEEN FILED?

For the purposes of a stay of execution an appeal is deemed to have been filed as soon as the notice of appeal is filed.

Application for stay of Execution

Kiambu Transporters V. Kenya Breweries

It is made by way of Notice of Motion under Order 41 Rule 4 and Section 3A of the Civil Procedure Act. (Looks like a notice of motion).

The court looks at certain conditions before granting a stay of execution.  The following conditions must be satisfied before the court can grant a stay.

1. That the Application has been made without unreasonable delay.

2. That substantial loss will result to the Applicant unless such order is made.

3. Security for due performance of the decree has been given by the Applicant.

HOW THE COURT DEALS WITH THE APPEAL

Section 79 of the Civil Procedure Rules – The court has power to summarily dismissed an Appeal.  The Court has the opportunity in the first instance to peruse the record of appeal and if they find there are no sufficient ground for interfering with the decree, the court may reject the Appeal.  If the court does not reject the Appeal, then it proceeds to hearing.  The fact that the court has admitted your appeal does not mean you cannot get a default judgment so if you do not appear, the court can dismiss the Appeal for default, it can also allow the Appeal for default.  So just like a hearing, you are required to appear at the hearing but unlike the High Court you do not have to appear for the Hearing in person.  You may find that in a case where the appellant does not wish to appear but would like the Appeal to proceed in that case you will file a declaration in writing that you do not wish to be present in person or through an advocate.  In such a case you must then file two copies of your sole arguments which you desire to submit, once you file the two copies one will be served on the respondent and the other is retained in the court file.  The option is also available to the Respondent, they can file their response in writing.  

Suppose the Appellant appears and the Respondent does not appear, there will be an ex parte decision.  You can always apply to set aside an ex parte judgment but you must show sufficient cause for not appearing.

PROCEDURE AT THE HEARING OF AN APPEAL

The procedure is that the Appellant has the right to begin.  After hearing the Appellant in support of the appeal, if the court finds that the Appeal has no substance it can dismiss the appeal without calling the Respondent.   Additional of parties or amendments can be done in the Court of Appeal as well.

POWERS OF THE APPELLATE COURT

Upon hearing the Appeal the Appellate Court may exercise the following powers:

1. It can opt to determine the case finally;

2. Remand the case;

3. Frame issues and refer them for retrial;

4. Take additional evidence or require such evidence to be taken;

5. Order a new trial;

The court will take various options depending on the grounds raised in the Appeal.  The Appeal Court will confine you to points.

1. To determine the case finally – this power is exercised by the court where the evidence on the record is sufficient to enable the Appellate Court to pronounce Judgment and to finally determine the case and this is the most common option of the court of appeal.  It is where from the record they are able to understand the problem and determine the case.  It is usually the case.

In certain cases the record of appeal may not be sufficient to enable the Court to pronounce Judgment or to enable it finally determine the Appeal.  In which case they will opt to remand the case.

Power to Remand the Case

The general rule is that the court should as far as possible dispose the case or an Appeal using the Evidence on Record and should not be remanded for fresh evidence except in rare cases.  Remanded basically means to send back.

WHEN CAN THE COURT OF APPEAL REMAND A CASE?

1. Where the trial court disposed off the case on preliminary point without hearing and recording evidence on other issues.

2. Where the Appellate Court disagrees with the trial court. In such a case the Appellate court will set aside the judgment and decree of the trial court and remand the case to the trial court for re-hearing and determination.  The Appellate Court may also direct what issues shall be tried in the case so remanded.  Read Wambui Otieno Case    by passing an order of remand the Appellate Court directs the lower court to reopen and retry the case.  On remand the trial court will readmit the suit under its original number in the register of civil suits and they will proceed to determine to hear it as per the directions of the court of appeal.  The court can only exercise the power to remand as set out by the Rules.

Suit disposed on a Preliminary Point

What is a preliminary Point?  A point can be said to be preliminary if it is such that the decision thereon in a particular way is sufficient to dispose of the whole suit without the necessity of a decision on the other points of the case.  A preliminary point may be one of fact or of law.  But the decision thereon must have avoided the necessity for a full hearing of the suit.  For example

Preliminary Point of Law.  

Suppose the issue of limitation of time or the doctrine of Res Judicata or the issue that the pleadings do not disclose a course of action unraised at the trial court this is an example of a preliminary point of law.

Preliminary Point of Fact – suppose a lower court dismisses the suit on the ground that the plaintiff is estopped from proving their case because maybe there was a prior agreement relating to the facts, again the same rule will apply that as long as the decision was based on a preliminary point, then the Court of Appeal will set aside that decision.

3. The Court has power to Frame issues and refer them for Trial

The Court of Appeal may order that certain issues be framed and that they be referred to the lower court to be tried.  The Court of Appeal will exercise this power where the trial court did not frame issues properly or omitted to try a certain issue or omitted to determine a certain question of fact which is essential to the right decision of the suit upon the merits.  The court will frame those issues and then refer them to the lower court for them to be tried.  Normally it will refer them with certain directions.  The court of Appeal when they have all the issues on their bench can decide on the issues.  The court of appeal frames the issues sends them back to lower court and after they are dealt with they are sent back to the court of Appeal.

4. Take additional evidence or require such evidence to be taken:

As we said at the beginning no additional evidence is taken at the court of Appeal unless

1. The lower court refused evidence which ought to have been admitted;

2. Where the Court of Appeal needs certain documents or certain evidence to enable it to pronounce judgment;

3. For any other substantial cause.

HOW DOES THE COURT OF APPEAL TAKE FRESH EVIDENCE

1. The court of appeal may take the additional evidence itself;

2. It may direct the original court to take the evidence;

3. It may direct a lower court to take the evidence for it

Once the evidence is obtained, it is sent to the Court of Appeal and is used by the Court of Appeal to make its decision

HOW IS FRESH EVIDENCE TAKEN

1. Where the lower court has improperly refused to admit evidence which it ought to have admitted.

2. Where there is discovery of new evidence.

If it was not improper it cannot be used as a basis for the Court of Appeal to

Admit fresh evidence.  The court of appeal may find out that there is certain evidence they need to come to a final decision, they can ask for fresh evidence to be taken or they can take it themselves which is rare.

3.ORDER A NEW TRIAL

The power to order a new trial is intertwined with the power of review.