Law_of_Evidence_in_Kenya

OPINION EVIDENCE
An opinion is a view, judgement or appraisal formed in the mind about a particular matter 57 . It is
an inference which one may draw from perceived data.
Opinion evidence is therefore evidence of what the witness thinks, believes or infers in regards
to the facts in dispute as distinguished from personal knowledge of the facts themselves 58 .
It is important to distinguish between facts and opinions. A witness‟s view of what another
would do in a certain circumstance is a matter of opinion, but his view of what he himself would
do is a matter of fact. Statements concerning speed, temperature, or the identity of persons,
things and handwriting are however indissolubly composed of facts and opinions. The statement
that a car was been driven on the left side of the road is essentially one of fact but the assertion
that a particular piece of driving was negligent is a matter of inference from the observed facts. 59
It is necessary to distinguish between the legitimate expression of opinion and its application to
an assumed set of facts. In HG V R 60 the court held while it would have been permissible for a
psychiatrist to express an opinion as to whether a child‟s behaviour indicated that it had been
sexually abused it was inappropriate for him to express an opinion that the abuse had been
perpetrated by a particular person at a particular time.
The General Rule is that opinion evidence is inadmissible. There are several reasons as to why
the courts exclude opinion evidence;
Because it is hearsay evidence.
If a witness gives a false opinion, he cannot subsequently be prosecuted for perjury 61 .
Admission of opinion evidence is usurpation of the powers of the jury. Whereas it is the
role of the witnesses to state facts, the drawing of inferences is a function of the court or
57 Merriam Webster Dictionary
58 Adrian Keane, Modern Law of Evidence
59 Tapper, C. (2007). Cross & Tapper on Evidence (11 ed.). New York: Oxford University Press
60 (1999)
61 Perjury is the making or uttering of false evidence with the intention that court accepts it as true.