Law_of_Evidence_in_Kenya

person can be questioned on his previous antecedent if he gives evidence against any other
person charged with an offence. 46
Evidence of bad character can also be seen from the Kenyan case of James Thanju Mbiyu V.
Republic 47 who was charged and convicted of stealing paint worth Ksh. 1100 contrary to section
238(1) of the Penal code and destruction of property. He was sentenced 2 years on each count
with the prison terms running concurrently. The appellant appealed. In his appeal, the
appellant appealed on grounds that the case arose out of family affairs and it was a fabrication.
He also pleaded that he was remorseful and the sentence was harsh. His prayers were for the
court to reverse the sentence. The complainant in this case was the appellants father. From his
evidence, the complainant testified against the appellant (his son) arguing that it was the third
time the Appellant was coming before the court to similar offences. He alleged that he had
been placed on probation twice and was in fact serving the sentence when he committed this
offence. The prosecution however did not confirm this allegation and treated the appellant as a
first offender.
Judge Lesit in this appeal admits the offences were committed by the appellant but his is of the
view that bad character was admitted as evidence. According to the evidence Act section 154,
such evidence cannot be given unless certain conditions are fulfilled. Justice Lesit said that
evidence of bad character of the appellant was unnecessary and not relevant to the case and
the conditions of admitting such evidence was not met. According to the judge the trial judge
was influenced by the bad character of the appellant during the trial and this was a miscarriage
of justice to the appellant.
The family factor according to Judge Lesit was not taken into considerations as it should have,
the oplaiat as appellats fathe. Judge Lesit held that the case called for non- custodial
sentence and he ordered the appellant to be released unless any evidence to the contrary can
be proved.
46 Section 57(1)(d).
47 Criminal appeal No. 784 of 2003 in High court of Nairobi.