UNIVERSITY OF NAIROBI

MODULE II PROGRAMME-2011/2012 (DAY AND EVENING)

(NAIROBI)

SECOND YEAR EXAMINATIONS FOR THE DEGREE OF BACHELOR OF LAWS

GPR 207: EVIDENCE II

DATE: MAY 28, 2012 TIME: 6:00 P.M.8.00 P.M.

INSTRUCTIONS:

(a) Answer Question 1 and any other TWO questions.

(b) Question 1 is COMPULSORY
(c) Support each of your answers with relevant case law, statutory provisions
and/or any other relevant authorities.
(d) Marks may be lost for illegibility or vagueness.
(e) Your answer sheet must bear your Student Registration Number.

QUESTION ONE

The elucidation of facts by means of questions put by parties or their representatives to witnesses
mainly summoned by them, and called mainly in the order of their choice, before a judge, acting as
an umpire rather than an inquisitor, has been an essential feature of the English [and Kenyan]
adversarial or accusatorial system of justice ___ Tapper, C. (2010) Cross & Tapper on
Evidence, 12th Edition, Oxford University Press, New York, at p. 272.

Discuss the rules governing the course of evidence alluded to by the eminent author.
30 MARKS

QUESTION TWO

Write brief explanatory notes on each of the following:

(a) The rule set out in section 125 of the Kenyan Evidence Act (4 MARKS)
(b) The rule set out in section 127 of the Kenyan Evidence Act (4 MARKS)
(c) Corroboration of Evidence (4 MARKS)
(d) Bankers Books (4 MARKS)
(e) Insane and dumb witnesses (4 MARKS)
QUESTION THREE

The general rule is that a party seeking to rely upon the contents of a document must adduce
primary evidence of those contents.___Kean, A. (1996) The Modern Law of Evidence, 4th
Edition, Butterworths, London, at p. 201.

Discuss the abovementioned general rule and the exceptions thereto. 20 MARKS

QUESTION FOUR

Evidence is not admissible in reply to evidence of good character. That point was decided in
Regina v. Burt (5 Cox, Crim. Cas. 284), where witnesses were called to give the prisoner a
general good character, and it was held by Martin B. that it was not competent to the prosecution
to call witnesses in reply to give evidence of the prisoner's general bad character. Such evidence is
inadmissible on the broad principle that character forms no part of the issue on the record.
___Mr Sleigh (for the Appellant) in (1865) LE & CA 1498 at p. 1499.

Discuss the learned counsels submission in the context of the modern law of evidence.
20 MARKS

QUESTION FIVE

Mr Dormiciano Camissasius, a maverick, wizened and grey-haired octogenarian from

Kabeteshire, is the Electoral Commissions witness in a long, tortuous and bare-
knuckled fight in an election petition filed at the High Court of Kenya at Port Florence.
By the year 2007, Mr Camissasius had not only retired from public service, having left a
largely ignoble legacy, but also long reached his sell-by date. Written policy guidelines
issued by the Electoral Commission prior to the election forbid the recruitment of
electoral officers whose age exceeded the set limit of sixty years. In spite of those policy
guidelines, Mr Camissasius somehow, inexplicably, secured an appointment to the
position of Returning Officer in a populous constituency during the disputed 2007
general election. The appointment was, officially, explained on his invaluable experience
and unparalleled knowledge on matters relating to electoral contests. His detractors
immediately cried foul, saying that Mr Camissasius ignoble and controversial tenure
as the head of the National security Intelligence Service and the special Branch made
him unsuitable for the job. The cries, however, fell on deaf ears, as the Electoral
Commission stuck to its guns. It was also loudly rumoured that Mr Camissasius was
actually recruited to oversee the implementation of the (in)famous Kenyan electoral
invention now commonly known as topping-up. The rumour mills further say that
Mr Camissasius was the original author of the so-called Mlolongo system of voting,
another Kenyan invention famed for starting the clamour for comprehensive
constitutional and legal reforms in Kenya during the early 1990s. Questions have been
raised in the election court relating to the execution and attestation of three critical
documents, namely Form 16A, Form 17A and Form 17. Although Mr Camissasius
claims to have signed all the three documents, the petitioner complains, the signatures
appearing on the documents are as different as day is from night. Mr Camissasius says
the petitioners story is full of sound and fury but lacking in substance, the sort of story
normally told by a fool. In particular, Mr Camissasius has told the election court not to
read too much into the different signatures, as they are all his genuine signatures. The
signature on Form 16A, he says, is the one appearing on his National Identity Card. The
signature on Form 17A is the one appearing on his passport. The signature on Form 17,
Mr Camissasius further contends, is the one appearing on his Driving Licence. The
petitioners advocate is not at all impressed by Mr Camissasius lies, which he asks him
to tell it to the birds. Accordingly, the petitioners advocate asks Mr Camissasius to give
his I.D., Passport and Driving License to the court, so that the court can compare the
signatures thereon with the ones in issue. Mr Camissasius says he lost is I.D. and
Passport during the post-election violence, and that his driving license was stolen in an
unfortunate car-jacking incident three days prior to the trial. Undeterred to shred the
witness credibility, the advocate has made an application seeking to compel Mr
Camissasius to sign the signatures appearing on his I.D., Passport and Driving License
on a clean sheet of paper, so that the court can verify his claim of having three
signatures. The Electoral Commission is worried that its case would collapse if Mr
Camissasius were to be ordered to sign each of his alleged three signatures on a clean
sheet of paper as sought. Accordingly, the Electoral Commission seeks your brief and
succinct legal opinion on the issues at hand, including the applicable statutory rules and
how courts have previously handled similar situations. Kindly provide the required
legal opinion. (20 MARKS)

---END---
 MARKING SCHEME
1 QUESTION ONE tests the candidates knowledge of the rules governing the
examination of witnesses and the general sequence for examination of witnesses
(witnesses shall first be examined-in-chief, then cross-examined and re-examined
(c.f. s. 146 of the Evidence Act), with special focus on:
(a) With regard to Examination-in-Chief
i. Purpose and scope (elicit facts favourable to the case of the party
calling the witness);
ii. the Prohibition against leading questions and the exception(s) thereto
(leading questions may be asked in-chief on formal, introductory or
uncontested matters. See Moor v Moor [1954] 2 All ER 458);
iii. the Prohibition against questions as to previous consistent statements
and the qualification(s) thereto (c.f. sections 149 150 (1) of the
Evidence Act, rules on res gestae, complainants in sexual offences (R v
Lillyman [1896] 2 Q.B. 167, where suggestions are made that the
witness has fabricated their testimony, statements as to past
identification);
iv. the rule on hostile and unfavourable witnesses and the general
prohibition against attacking character or credit of ones own witness
and the exception(s) thereto (c.f. section 161 of the Evidence Act and
the decisions in Rice v Howard [1886] 16 Q.B. 681 and Price v
Manning [1889] 42 Ch. D 372 CA); and
v. the common law and statutory rules on refreshing of memory and
situations when documents used to refresh memory can be rendered
admissible in evidence (c.f. section 167 of the Evidence Act and
relevant chapter in the recommended text books)
(b) With regard to Cross-Examination
i. The purpose and scope of cross-examination (the purpose is to elicit
facts favourable to the party cross-examining or impeach the
accuracy, character or credit of the witness. The scope is generally
unlimited (see section 146 (2), subject to certain rules set out in
sections 159-160 of the Evidence Act);
ii. the inherent power of the court control proceedings and curb
excessive cross-examination;
iii. the rule as to liability of all witnesses to be cross-examined and the
exception thereto (c.f. Cross & Tapper at p. 316, Halsburys at p. 443
and Adrian Kean, p. 149);
iv. the power of the court to disallow needlessly offensive or scandalous
questions in cross-examination (c.f. sections 159 and 160 of the
Evidence Act);
v. the rule on previous (in)consistent statements (c.f. section 165 of the
Evidence Act);
previous consistent statements generally inadmissible at
common law save for cases of sexual offences, previous
identification, statements on discovery of incriminating
articles, statements on accusation, statements forming part of
the res gestae etc;
under modern law, evidence of previous consistent generally
admissible (cf. section 165 of the Evidence Act)
vi. the applicability of general rules as to admissibility of evidence to
questions asked in cross-examination (c.f. decision in R v Brophy
[1982] A.C. 476) and Wong-Kam-Ming v R [1980] A.C. 247);
 (c) with regard to Re-Examination
i. purpose and scope (purpose to explain, where possible, the issues
raised during cross-examination. Scope limited to issues raised
during cross-examination. c.f. section 146 (3) of the Evidence Act).
ii. the relevant rules governing examination-in-chief as applicable to re-
examination (e.g. leading questions, hostile and unfavourable
witnesses etc).

2 QUESTION TWO tests the candidates knowledge of:

(a) The rule set out at section 125 of the Evidence Act (the general rule that all
persons are competent to give evidence unless prevented by tender years,
extreme old age, disease of body or mind (or by similar cause) from
understanding the questions put to them or giving rational answers to those
questions);
(b) The general rules set out at section 127 of the Evidence Act, namely-
i. parties and their spouses are competent witnesses in civil
proceedings;
ii. accused persons and their spouse are generally competent but not
compellable for the defence in criminal proceedings; and
iii. accused persons and their spouses are generally incompetent as
witnesses for the prosecution save for the cases listed in section 127
(3);
(c) the requirement for
i. corroboration of the unsworn evidence given by children of tender
years and the exceptions thereto (c.f. section 124 of the Evidence Act;
section 19 of the Oaths and Statutory Declarations Act and the
decisions in Johnson Muiruri v Republic [1984] KLR 445 and Oloo v
Republic [2009] KLR 416); and
ii. corroboration of accomplice evidence (c.f. section 141 of the Evidence
Act and the decision in Mwangi v Republic [2008] 1 KLR 1134);
(d) the general protection accorded to bankers and bankers books in proceedings
to which the bank is not a party (c.f. section 140 and Chapter VII of the
Evidence Act).
(e) The general competence of insane and dumb witnesses and the qualifications
thereto (c.f. sections 125 (2) and 126 of the Evidence Act and the decision in R
v Hill (1851) 2 Den 254).

3 QUESTION THREE tests the candidates knowledge of the general requirement for
adduction of primary evidence when relying on the contents of a document (c.f.
sections 65 (1) and 67 of the Evidence Act) and the following exceptions (c.f. section
68 of the Evidence Act) thereto:
(a) when the original is shown or appears to be in the possession or power of
i. the person against whom the document is sought to be proved; or
ii. a person out of reach of, or not subject to, the process of the court; or
iii. any person legally bound to produce it;
iv. and when, after the notice required by section 69 has been given, such
person refuses or fails to produce it;
(b) when the existence, condition or contents of the original are proved to be
admitted in writing by the person against whom it is proved, or by his
representative in interest;
(c) when the original has been destroyed or lost (c.f. Sugden v Lord St. Leonard's
[1876] Probate 154), or when the party offering evidence of its contents
 cannot, for any other reason not arising from his own default or neglect,
produce it in a reasonable time;
(d) when the original is of such a nature as not to be easily movable (e.g. a
tombstone or a wall. C.f. Mortimer v MCallan (1840) 6 M & W 58);
(e) when the original is a public document within the meaning of section 79, i.e. a
document forming the acts or records of the acts
i. of the sovereign authority; or
ii. of official bodies and tribunals; or
iii. of public officers, legislative, judicial or executive, whether of Kenya
or of any other country; or
iv. public records kept in Kenya of private documents.

4 QUESTION FOUR tests the candidates knowledge of the rules as to admissibility of

character evidence in criminal proceedings as laid down in R v Rowton (1865) Le &
Ca 520 CCR and sections 56 and 57 of the Evidence Act, with particular emphasis
on the following:
(a) the rule that evidence the accused is of bad character is generally
inadmissible;
(b) the rule that evidence that the accused is of good character is generally
admissible;
(c) The rationale for the admissibility of evidence of accuseds good character in
criminal proceedings as explained in Attorney General v Radloff (1854) 10
Exch 84 at 97;
(d) The dangers of an accused
i. giving evidence of his own good character; or
ii. attacking the character of the complainant or prosecution witnesses;
or
iii. testifying in such a way as to undermine the defence of a co-accused.

5 QUESTION FIVE tests the candidates knowledge of the following rules as applicable
to the execution and attestation of documents:
(a) the general requirement to prove due execution and attestation (ss. 70 and 71
of the Evidence Act;
(b) how to prove the due execution and attestation of documents (normally by
calling the person who executed/attested or by secondary evidence or
opinion of someone who is familiar with the handwriting or signature); and
(c) the power of the court to compare signatures and handwritings and its
limitations as set out in section 76 of the Evidence Act and explained in class).
 SELECTED CONCERNS/OBSERVATIONS MADE DURING THE MARKING

1 A number of candidates did not know that section 125 of the Evidence Act only
provides for competence of witnesses. They thought it covers both competence and
compellability.
2 Some students did not appear to fully/correctly understand the rules as to the
refreshing of memory and the circumstances under which a document used to
refresh a witness memory can become admissible in evidence.
3 A significant number of candidates misunderstood the meaning of leading questions
as questions designed to attract a yes or no answer, perhaps due to a
misapprehension of Moor v Moor [1954] 2 All ER 458.
4 Some students did not appear to fully/correctly understand the circumstances under
which a witness previous consistent statements can become admissible in evidence.
5 A small number of students did not understand the full scope of the compulsory
question, as they seem to have understood it to be testing only the rules governing
examination-in-chief.
6 Most of the students who attempted question four did not address themselves to the
particular question asked, namely the correctness of the submission in the context of
contemporary Evidence Law. Moreover, hardly did any student figure out that the
submission was from the case of R v Rowton, a must-read for any candidate who has
prepared/revised on character evidence.

NOTABLE POINTS MADE BY THE CANDIDATES

1 Secondary evidence may also be allowed when the person containing the document is outside
the reach of the courts jurisdiction. (G34/36997/2010).
2 An exception to the rule of leading questions can be found in England (UK) when it comes
to victims of sexual assault and cases involving children of tender years, leading questions are
allowed at this stage [examination-in-chief] of examination. (G34/36997/2010).
3 Insane witnesses are those who cannot understand with a clear mind. In law, insane
witnesses are not competent witnesses but they can be compelled to give evidencegenerally,
dumb witnesses are not competent but they can be compelled if they are found to be able to
appreciate the facts in question through communication with an interpreter in court
regarding the matter in question (G34/35541/2010).
4 Leading questions are those that the counsel asks to get an answer which he expects
(G34/35541/2010).
5 As a matter of knowledge good lawyers will only cross-examined when they know the
answers to what they will ask, e.g. the case you (Mr Muthomi i.e.) gave of a lawyers who
asked a policeman questions not knowing he was a ballistics expert. (G34/35729/2010).
6 An insane and dumb witness seizes to be competent when he has outbursts in court due to
his condition during proceedings. This would mean that he would not understand questions
asked from thereon. (G34/28655/2009).
7 Bankers books are always for the purpose of security in that if they are used for transactions,
the bank would know its legitimacy than in a situation where a customer transacts with
personal books, i.e. personal cheques. (G34/28655/2009).
8 The proceedings in a case first begin with the examination in chief of a witness.
Examination in chief is the situation whereby the defence party calls its witnessesIf and
when a witness becomes hostile the party examining the hostile witness at instance impeach
or attack the evidence of the witness, all they need to do is inform the presiding judge or
magistrate that the witness is a hostile witness and so should be treated as one, upon which
the presiding magistrate shall take noticecross-examination of a witness is carried out by
the prosecution party (G34/7572/2005).
9 Mr Cammisassius was the head of the National security Intelligence Service and the Special
Branch. This means that at some point Mr Cammissasius was an officer in a public office, or
so to say a public officer. The Evidence Act provides that the court shall presume a document
signed or made by a public officer to be genuine and that the purported person/officer is the
maker of that document or the signatory. Therefore, in this matter the court should presume
that Mr Camisssasius signed the documents as he was a public officer at the particular time.
The Evidence Act also provides that a book that is written by an author with express
permission of the government or its direction, court shall presume that the person purported
to be the author to be the true author. In this case therefore, Mr Camisssasius was the
original author of the so-called Mlolongo system of voting which started the clamour for
comprehensive constitutional and legal reforms in Kenya during the early 1990s. The fact
that this book was authored in the early 1990s could mean that one of the documents signed
by Mr Cammisassius is more than 20 years old. The Evidence Act states that court shall
presume secondary copies of a document that is more than 20 years old to be genuine.
Therefore, court should presume that any of the documents signed and produced by MR
Cammisasius to be genuine if it dates back to more than 20 years ago. The court basing its
decision on these provisions of the Evidence Act should therefore presume that the signatures
in those forms are those Mr Cammissasius purports to be on his I.D., passport and driving
license. G34/29429/2009.