Law_of_Evidence_in_Kenya

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In Gatheru s/o Njagwara v R 73 the accused was charged with unlawful possession of a firearm.A police officer gave evidence where he simply described himself as an inspector of policeattached to the Criminal Investigation Department of Nanyuki. He did not tell the court how longhe had perfected his duties, whether he had seen or examined any hand-made weapon other thanthose seized in the course of the operation leading to the arrest of the accused. The issue onappeal was whether the evidence of such a person was admissible as expert evidence. The courtobserved „we think that such specific skill is not confined to knowledge acquired academicallybut would also include skills acquired by practical practise...but even so, his competency as anexpert shall in all cases be shown before his testimony is properly admissible‟.In the case of Stephen v R 74 the court in this case rejected evidence that was given by apoliceman that he had found the accused in possession of a drug called bhang. Had he just statedthat he had found the accused with a chalk like substance, of a certain colour and a certain smell,this would have been admissible. Only an expert could separate the compound of that substanceto say it is bhang.In the case of Charles Ng’ang’a v R 75 , the accused was charged with causing death bydangerous driving. A police testified on the point of impact to which the defence objectedbecause the police was not an expert. The appeal court held that unless it was shown that thepoliceman had many years of experience in inspecting motor vehicle accidents, he should notgive expert evidence on such a matter.With regards to handwriting experts in Wainaina v R, it was held that:iiiWhilst a handwriting expert may in a proper case say he does not believe that a particularwriting is a by a particular person, the most he should ever say on the positive side is thattwo writings were similar so as to be indistinguishable.He might comment on unusual features which make the similarity more remarkable.iii There is no rule requiring the corroboration of the evidence of handwriting expert.How do the courts treat expert evidence?73 (1954)21 EACA384,38574 (1973)EA 2275 Kenya appeal report criminal case no. 66 of 1980
Opinion evidence is not binding to the court but it should be considered with other evidence inreaching the final decision by the court.An expert is called upon to assist the court in matters that the court is not too well equipped tomake a decision on. The expert does not take the role of the court and so the courts should notabdicate their responsibility to the experts.In Kit smile Mugisha v Uganda 76 , the court stated that expert evidence is just opinion andshould not take the place of substantive evidence. The court only decides an issue upon suchassistance which the expert offers. The court forms its own opinion on the subject matter at hand.In the case of Hassan v Salum 77 it was opined that the court should not rely on expert evidenceas they may also make mistakes. This way, the court is not bound by expert opinionSection 49 provides that facts not otherwise admissible are admissible if they support or areinconsistent with the opinions of experts, when such opinions are admissible.Expert opinion is open to corroboration and or rebuttal. If there are conflicting opinions,resolution of the conflict or acceptance of one expert opinion in preference to that of the other isthe courts responsibility.EVIDENCE OF OPINION ON MATTERS NOT CALLING FOR EXPERTISE ISGENERALLY EXCLUDED.If on the proven facts a judge can form their own conclusions without help then the opinion of anexpert is unnecessary.In the case of R v Chard 78 the court of appeal held the judge to have rightly excluded medicalevidence concerning the intention, at the material time, of someone charged with murder, wherethere was no question of his being insane or suffering from diminished responsibility. A judge isas competent as a psychiatrist to form an opinion about the past intention of a normal man.76 Criminal appeal ,no. 78 of 197677 (1964) EA 17278 (1971)
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 and 22: person can be questioned on his pre
Page 23 and 24: offence with which the defendant is
Page 25 and 26: OPINION EVIDENCEAn opinion is a vie
Page 27 and 28: some professional or technical matt
Page 29: Experts are brought by the parties
Page 33 and 34: Section 50 (1) of the Evidence Act
Page 36: REFERENCESAllen, C. (2008). Practic

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