Law_of_Evidence_in_Kenya

evidence of a fact or directly relevant to a fact in issue. 35 It will also be relevant if it is adduced
to show that the accused has been convicted of another offence and has a result his character
is embedded in a state of mind or in system. 36
Character evidence will also be admissible if the accused, personally or through his advocate,
attempts to establish the character of prosecution witness 37 and nature or conduct of defence
conducts itself in a way to attribute something dishonest on the part of prosecution witness or
the complainant. 38 In R v Thomas Cholmondley 39 , the prosecution successfully sought to adduce
eidee of auseds ad haate,dispositio ad geeal eputatio eause the aused
had thrown the first stone by attacking the conduct and reputation of certain prosecution
witnesses.Lastly, a pesos haate eidee ill e adissile if he has gie eidee
against any other person charged with same offence. 40 The eidee of a pesos peious
conviction will also be admissible after he has been convicted of the present offence awaiting
conviction. 41
In cross examination, a person can be asked any question and it does not matter whether that
question is incriminating. Evidence or cross examination of an accused on bad character
evidence is inadmissible unless the five exceptions under section 57 apply. One of the
exceptions is that evidence of bad character will be admissible as evidence of fact in issue
where it comprises similar fact evidence. 42 In the case of R v Smith,the court accepted evidence
that other two women whom the accused had married had met the same fate. 43 However some
courts are of the view that for similar fact evidence to be admissible as an exception under
section 57(1)(a) above, it has to be a conviction.
Evidence of bad character is also admissible where the accused has personally or by his
advocate asked questions of a witness for the prosecution with a view to establishing his own
35 Section 57 (aa) of the Evidence Act of Kenya
36 Section 57 (a) of the Evidence Act of Kenya
37 Section57 (1) (b) of the evidence act
38 Section 57 (1) (c) of the evidence act.
39 R v Thomas Patrick Gilbert Cholmondeley ,Crimianl case no.55 of 2006
40 Section 57 (1) (d) of the evidence act.
41 Section 57 (2) of the evidence act
42 Section 57(1)(a) Evidence Act Cap 80 Laws of Kenya.
43 R V Smith (1915) 11 APR 229