UNIVERSITY OF NAIROBI

FACULTY OF LAW
DEPARTMENT OF PUBLIC LAW
COURSE TITLE :
COURSE CODE

EVIDENCE LAW 1
: GPR 201

PRESENTED TO :

BY

Mr. MUTHOMI THIANKOLU

Njagi Selestine Muringi

:

ON

G34/40814/2011

Taank Boskey Wairimu

G34/40406/2011

Wangui Mary Winnie

G34/39576/2011

Shiramba Dennis Etemere

G34/40311/2011

Kariuki Susan Wangui

G34/36241/2010

Wamukehe Leah Musuya

G34/40661/2011

Nyamolo Edna Awuor

G34/41166/2011

Juma Abraham Wangila

Sankaire Ole Tima

: 7 th December 2012

G34/40360/2011
G34/38061/2011

INTRODUCTION

Evidence given in the court room should be relevant and sufficient. Most important
it must be relevant otherwise if not so it is termed as inadmissible. The witnesses
who adduce evidence during the trial sessions should be qualified to give evidence
as per the rules in evidence law. Parties to the issue to be tried in court should
choose their witnesses carefully as they can either incriminate them or render them
their freedom as per the testimonies they give. A witness should be composed when
giving their testimony as discussed in the essay. Trials being the most efficient way
to gather evidence from witnesses is the method that has been used form the
ancient times till date however, have their pros and cons as discussed in the essay.

The general rule of evidence is that all evidence that is relevant to an issue before
the court is admissible and all irrelevant evidence is inadmissible .Vital information
regarding issues before a court should be got from credible facts and witnesses
and if not, then the information should be excluded . Admissibility of evidence
depends on relevance of a high degree and that evidence tendered should not
infringe on any exclusionary rules applicable to it. On relevance and admissibility
s.5 of Cap.80 expressly states that . no evidence shall be given in any suit or
proceeding except evidence of the existence or non-existence of a fact or issue and
of any other fact declared by any provision of this act to be relevant.
In Conway vs. R it was determined that relevance is a logical and not a pragmatic
concept. Therefore ,for the purpose of determining relevance each piece of
evidence is to be considered independently and a piece of evidence remains
relevant however many other pieces of evidence are tendered to prove the same
fact. Hence relevance is a concept which proof of one fact renders the existence of
another fact probable or not.
In D.P.P. vs. Kilobourne ,it was held that evidence is relevant if it is logically
probative /disprobative of some matter that requires proof .It is sufficient to say that
relevant evidence is evidence that makes the matter that requires proof more/less
probable or not.
In civil proceedings however, merely because evidence is admissible it may not be
necessarily admitted since the judge has power to exclude pursuant to his case in
his management role. This power should be used with great circumspection.

Innocuous statements made by means of testimony are offered to the court as

evidence of the truth which is stated. They are mainly innocent and harmful .
However, evidence rules such as those that are concerned with the oath
,competency of witnesses and cross- examination are used to ensure reliability of
the testimony. Testimony is viewed as the major item of judicial evidence . A
hearsay statement if oral has to be narrated to the court and if in a document it
must be produced in a court and identified by a witness .
The demeanour of witnesses is also a vital consideration during trials. The common
law regarded the demeanour of a witness as relevant to the witnesses credibility
.The attitude of a witness and his way of answering questions posed to him, his
apparent frankness ,evasiveness or other reaction to questioning and his apparent
power or lack of power or recollection are used to guide in the weight to be placed
upon the witnesses evidence. For instance nervousness and fidgeting of the
witness gives away the guilt easily. This eventually leads to the frequent refusal of
appeals by courts to reverse decisions made at trials where during the trial the
court had the opportunity to see and hear the witnesses case.
Hearsay is therefore sometimes excluded as evidence as the court had no
opportunity for observing demeanour of the person making the hearsay
statement .Demeanour is rightly treated as an item of real evidence analogous to
the appearance of persons and the observable qualities of an object. When we say
that vital information and pointers are not just gleaned from dry facts and evidence
we mean that evidence adduced in courts should be relevant and void of bias or
personal concern.

There are various types of examination of witnesses as seen in s. 145 of the

Evidence Act which provides for three types of examination of witnesses namely;
a)Examination in chief- examination of a party by the party who calls him /her
b)Cross-examination- The examination of a witness by the adverse party.
c)Re- examination - An examination of a witness after cross- examination by the
party who

called him/her

Examination in chief is the first stage of a civil or a criminal trial- It entails the
questioning of a witness by the party who has called /brought the witness, the party
calling the witness or his/her advocate will seek to elicit evidence which supports his
or her version of the facts in issue or relevant to the case .
CROSS EXAMINATION
During trials a witness is questioned under oath and they are required to give
evidence attesting to a given event. According to sec .154 of the Evidence Act, a
witness may be cross examined to establish.
1)His accuracy ,veracity of credibility,
2)to discover who he/she is and what is his/her position in law,
3)shake his credit by injuring his character although the answer to such questions
might tend to directly or indirectly incriminate him or might expose him to a penalty
or forfeiture.
Testimony of witnesses may also be deemed as forms of judicial evidence and the
courts have a requirement that they be said in court so as to determine their

reliability. Evidence before the court will not be accepted as being admissible if it
has not been sworn. In Maisham ,ex parte Pethick Lawrence [1912} KB 362, where
the magistrate s court by error conducted a case on the basis of unsworn evidence
and thereafter reheard the case in the proper manner on the same day , an appeal
was brought on the ground that the accused had stood in jeopardy twice because
of the procedure taken by the appeal and the appeal failed because the first hearing
was based on unsworn evidence and thus had been nullity of accused had not
stood in jeopardy . In addition ,lying under oath forms part of idiosyncratic tactics
that humans form under pressure .A witness who lies under oath is considered to be
guilty and the same also goes for one who remains silent absolutely. In cases of
lying about previous mentioned that the latter is a lie and that lying about previous
facts can form part of conscience of guilt and this leads to the guilt of the witness
.Through this, we see that trials do not give room for evidence that is false and
therefore credible evidence is brought forth.
Under section 163(1)(c) of the evidence act , the character of a witness might be
impeached on the grounds of contradictory statements he made that might be
inconsistent with part of his evidence .In case of appearances of witness ,the court
will be more likely to accept evidence from a forth right and un perpetuated
witness by cross examinations ,the court will no doubt be more disposed to believe
him that it will a halting and previcating witness although this has been disputed in
the case of as to whether the demeanor is important during cross examination by
the examination in chief or re- examination by the Attorney General of the
sovereign state of Akiton and Dhekelia VS Stein hof. As far as the facts in issue are
concerned the type of demeanor is analogous to the answers given by a witness

who is being cross-examined as to credit and may lightly regarded as evidence in

the case o. In Coomb vs. Bessel (1994) 4 7AS 149
An appeal was allowed because the trial judge regarded as satisfactory demeanor in
testifying transpired to be the result of a medical condition. The personality of a
witness may also determine this suitability as a witness as it may help the court
attach some weight to the assessment of himself.
The general rule of direct evidence is that evidence offered on direct examination
must be relevant ,authentic and not hearsay .It should .be admissible.
ROLE OF DIRECT EXAMINATION
1) Introduce undisputed facts Undisputed facts cannot be considered by the
judge or jury and will not be part of the record on appeal until they have been
evidenced through a witness testimony.
2) Enhance the likelihood of disputed facts- Normally ,the most important facts
in a trial are those in dispute hence through direct examination a point gets
the opportunity to present its version of the disputed facts.
3) Lay down foundations for introduction of exhibits- Various forms of real
evidence are always central to a case. Therefore are necessary to lay the
foundation s for the admission of such an exhibit through direct testimony of
a witness.
4) Reflect upon the credibility of witnesses- Credibility of a witness is always a
vital issue in a trial. Due to this ,most direct examinations begin with the
background information about the witness so as to help harmonize the
witness and add weight in their submissions .A witness may also be

summoned to shed light on the credibility of the testimony of another

witness.
5) Hold the attention of the trier fact- It holds the attention of the judge or the
jury.

Leading questions in a trial session are defined in section 149 of the evidence
act as ;

Those so framed as to suggest the answer sought.

Those framed as to assume the existence of facts yet to be established.

Evidence elicited by leading questions is admissible but the weight which can be
attached to it may be reduced accordingly. This was illustrated in the case of
Moor vs. Moor where a wife petitioner in an undefended divorce petition was
asked a series of leading questions in chief that predictably attracted a Yes or
No answer. Some of the questions she was asked were: 1)Did you suspect your
husband was having an affair with someone else?
2)As a result of those suspicions ,did you leave your house in October 1936?
The trial judge declined to exercise his discretion in the wifes favor on the ground
that she had equally been guilty of adultery and had started the chain of events
that led to the breakdown of the marriage and dismissed the divorce petition .

Leading questions may however be asked in the following

circumstances ;
a) On formal and introductory matters such as the name and address as
opposed to facts in issue.
b) On facts that are not in dispute.
c) Where the party calling the witness has obtained the leave of the court to
treat the witness as hostile.
Traditionally the Common Law attached much weight to ansrs given by witnesses in
court on oath or affirmations to written statements previously made by them .
Witnesses having difficulties in recollecting events to which their evidence relates
can refresh their memory by reference to a document.
CONDITIONS
The document must have been made or verified by the witness
contemporaneously with the events in question.
The document must be produced for inspection of the court or the opposing
party.
The document must be an original (otherwise the leave of the court will be
necessary).
A witness may refresh his /her memory by referring to any writing made by
any other person and read by the witness at the time of the transaction.
EFFICIENCY OF TRIALS

.Trials are essential because they not only allow for documentary evidence but also
real evidence is presented during trial which would not be the case if did not have
trials. Real evidence is evidence from which the tribunal of fact can draw
conclusions from its own perceptions. It may consist of material objects; the
appearance of persons or animals ;the demeanour of witnesses ;views of the locus
quo ;and video or audio tapes ,film and photograph.
When it comes to material objects the court may look at and draw proper
conclusions from visual observation of any object brought before it. The reason why
trials use advantages too is because the best of evidence rule does not apply so any
object brought will be observed regardless of whether it is the subject matter of the
case , it may be ancillary to the issue but nevertheless relevant to it . In Line Vs
Taylor3, this was an action against the defendant, for keeping a vicious dog. The trial
judge permitted the dog to be brought into court so that the jury could asses the
temper for themselves, based on their own experience of dogs and their
observation of this particular animal. There is no objection to secondary evidence
brought before the court such as photographs or films of the object and through
this we see that in trials room is given for presentation of each and every evidence
that is relevant to the case no matter the level of relevance.
During trials the physical appearance of a person may have probative value in
different ways in identification cases, height, build and the skin tone of a person
may be very important. The accent of a person or even the pitch of their voice is
also evidence in identification. A good example of this is stated by Hale where he
says that a physical deformity that would almost inevitably lead to the conclusion
that a person is not guilty of rape. Also physical resemblance between a child and

an alleged father might be evidence of parentage. Injuries may also be permitted by

a court to be exhibited so as to establish the nature and extent.
Another important aspect of trials is that they allow for tapes ,photographs and
films to be presented as evidence for observation . Although in modern law they
may be regarded as documents at least for some purposes they have a further
important potential to supply matter of evidential value because of the possibility
of direct perception. A type of film may yield and nuances over and above the mere
text of the matter recorded in them.
Trials one of the principles of fair hearing provided for in the 2010 Constitution
Article 50 Every person has the right to have any dispute that can be resolved buy
the application of law decided in a fair and public hearing before a court or, if
appropriate, another independent and impartial tribunal or body.The constitution in
Article 50 (2) expressly states the right of every individual to have a fair trial. These
principles may be seen as an application of natural justice of due process to the
criminal justice system and are a defining feature of a free and democratic society.
So important is the right to fair trial that is one of the fair* non-derrogable rights
which cannot be limited or alienated under any circumstances.
DISADVANTAGES OF SOCIAL CONTINGANCY OF FACTS OF TRIALS
Normally a court inquiring into past facts will not have experienced the facts itself,
but the inferences may reconstruct the facts. The inferences may be founded on
estimated reliability of reports of persons with direct experience of the facts in
issue during oral testimony or on circumstantial evidence.
Facts of a case are actively constructed or reconstructed by parties in legal
proceedings before the court. The fact that facts do not have an independent

statistic quality , that can be discovered by an impartial inquirer. According to

McConville, Sanders and Long,
'' at each point of criminal justice process 'what happened' is the subject of
interpretation, addition, subtraction, selection and reformulation. This process is a
continuous process...that involves not simply the selection and interpretation of
evidence but its creation.''
Interrogation of a suspect is not only used to unlock factual information that the
suspect has but also in creative way to bring about facts in existence in the form of
admission produced and structured by the form and manner of questioning.
Obtaining evidence of mens rea is common. For instance, a suspect may be led to
admit that he was conscious when taking a risk therefore he was reckless, when in
real sense it might not be so.
A further important negative feature of interrogation is how it may be used to the
suppression of marginalized warrant able information from the suspect. This also
takes place in trials where lawyers, when questioning witnesses tend to ask the
witnesses open questions that permit the witnesses to make a free report of what
they know, failing to give the witness an opportunity to say something positively
that might damage their case. Lawyers also phrase questions so as to require short
definite answers that fit the version of the facts being put forward.

Witnesses will be discouraged from volunteering additional material and

therefore in this way a filtered and possibly misleading account of facts may
be presented to the court. This factors discredit the whole purpose of trial
and to some extent render them ineffective.

Generally trials have been and still are the most efficient way to achieve
justice in the courts since they provide the best mechanisms to inquire facts
and testimonies given by the witnesses under oath.

REFERENCES
Collin and Tapper, MA . Cross and Tapper on Evidence,12 th Edition, Oxford
University Press.
Murphy and Glover. Murphy on Evidence ,12th Edition, Oxford University
Press.
Sir M. Hale. Pleas of the Crown, Vol .1
The Evidence Act Cap. 80
The Constitution of Kenya 2010

The Law of Evidence, 3rd Edition, Sweet and Maxwell ,2007