Law_of_Evidence_in_Kenya
Character evidence in sexual offences is inadmissible in Kenyan courts 48 .However; a courtmight decide to accept evidence of character if it relates to a specific instance of sexual activityrelevant to a fact in issue 49or is likely to rebut previously adduced evidence by theprosecution. 50 Character evidence may also be accepted if it is likely to explain the presence ofsemen or the source of pregnancy, disease or injury to the complainant, if it is relevant to a factin issue 51 , o is fudaetal to the auseds defee. 52 However, the admissible characterevidence should ot sustatially e outeighed y its potetial pejudie to the oplaiatspersonal dignity and right to privacy. 53However, scholars have argued that it is unfair for courts not to admit evidence of goodcharacter of the accused. 54Generally, lack of consent is an important component in theoplaiats argument of his case and in some cases; the prosecution might even go to anextent of adducing evidence to prove that the assault involved loss of virginity or even producea itess to testify that the oplaiats eligio ould ot allo he to oset to suh aact. In such circumstances, it would only be fair to allow the accused to produce evidence of hergood character.Shortcomings of the Evidence law in KenyaEvidence law in kenya does not define good character neither does it define bad character.Itdoses not explain whether previous convictions have any relevance on credibility ofwitnesses,especially if they are minor.In some cases under common law,evidence which wouldotherwise be referred to as bad character can be treated otherwise.For instance,when a courtis seeking to establish the person who shot his victim during robbery can accept evidence of apeso ho is alays a al oe as good haate eidee.Under English law badcharacter evidence has been defined as evidence which has to do with the alleged facts of the48 Section 34 of the sexual offences act of Kenya.49 Section 34(a) of the Sexual offences act of Kenya50 Section 34(b) of the Sexual offences act of Kenya51 Section 34(c) of the Sexual offences act of Kenya52 Section 34(e) of the sexual offences act of Kenya53 Section 34(d) of the Sexual offences act of Kenya54 Colli Tape, Cross and Tapper on Evidence
offence with which the defendant is charged or evidence of misconduct in connection with theinvestigation or prosecution of that offence. 55The law on good character is tilted in favour of the defendant.This is because if one successfullyproves evidence of good character the court will consider it in the decision as opposed to theprosecution who have to produce a witness of good character to improve their chances incourt. A witness who is found to be of bad character definitely weakens the prosecutions case.The act does not directly place a responsibility on the court to inform an unrepresentedlitigants that evidence of their bad character will be admissible if they question the witness ontheir character.As a result, accused persons always unknowingly cause evidence of their badcharacter to be admitted. 56ConclusionCharacter evidence is vital in the law of evidence. However,the Evidence Act of Kenya should beamended to provide more guidance to litigants on evidence of character.55 Section 98 of the criminal Justice Act56 Mohammed Hassan Osman v Republic, criminal appeal no.48 of 2007
- Page 1 and 2: CORROBORATION1.0 OVERVIEWCorroborat
- Page 3 and 4: The definition above confines corro
- Page 5 and 6: accused had been charged for indece
- Page 7 and 8: IDENTIFICATION CASES; this is where
- Page 9 and 10: tribunals are, with rare exceptions
- Page 11 and 12: 8.3 Where corroboration is not requ
- Page 13 and 14: given before the court was not enou
- Page 15 and 16: Sexual Offences Act No 3 of 2006G.B
- Page 17 and 18: Character Evidence in Kenyan LawThe
- Page 19 and 20: evidence of a fact or directly rele
- Page 21: person can be questioned on his pre
- Page 25 and 26: OPINION EVIDENCEAn opinion is a vie
- Page 27 and 28: some professional or technical matt
- Page 29 and 30: Experts are brought by the parties
- Page 31 and 32: Opinion evidence is not binding to
- Page 33 and 34: Section 50 (1) of the Evidence Act
- Page 36: REFERENCESAllen, C. (2008). Practic
offence with which the defendant is charged or evidence of misconduct in connection with the
investigation or prosecution of that offence. 55
The law on good character is tilted in favour of the defendant.This is because if one successfully
proves evidence of good character the court will consider it in the decision as opposed to the
prosecution who have to produce a witness of good character to improve their chances in
court. A witness who is found to be of bad character definitely weakens the prosecutions case.
The act does not directly place a responsibility on the court to inform an unrepresented
litigants that evidence of their bad character will be admissible if they question the witness on
their character.As a result, accused persons always unknowingly cause evidence of their bad
character to be admitted. 56
Conclusion
Character evidence is vital in the law of evidence. However,the Evidence Act of Kenya should be
amended to provide more guidance to litigants on evidence of character.
55 Section 98 of the criminal Justice Act
56 Mohammed Hassan Osman v Republic, criminal appeal no.48 of 2007
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