Law_of_Evidence_in_Kenya

In R v Turner 79 , Turner unsuccessfully pleaded provocation answer to a charge of murder of his
girlfriend whom he alleged that he had killed in a fit of rage caused by her sudden confession of
infidelity. He appealed on ground that the judge had wrongly refused to allow him to call a
psychiatrist. This witness would have sworn that the accused was not mentally ill; that he had a
deep relationship with the girl which was likely to cause an explosive outburst of rage at her
confession and that his subsequent behaviour showed profound regret at what he had done. The
court of appeal held that no evidence was required for the first of this matters which was
undisputed and that judges do not need a psychiatrist to tell them how ordinary people who are
not suffering from mental illness are likely to react to the stresses and strains of life.
This was contrasted with Lowery v R 80 where Lowery and King were charged with a murder
that must have been committed by either or both of them. The Privy Council held that the judge
had properly allowed King to call a psychiatrist to swear that he was less likely to have
committed the crime than Lowery.
On similar grounds expert evidence is inadmissible to explain the ordinary meanings of words
such as „obscene‟; indecent‟ 81 . Evidence of opinion may not be proferred on an ultimate issue. In
Grismore v Consolidated Products 82 it was stated:
“when a standard or a measure or a capacity has been fixed by law e.g. negligence or incapacity
to marry, no witness whether expert or non-expert, not however qualified is permitted to express
an opinion as to whether the person or the conduct in question measures up to that standard on
that question the court must instruct the jury as to the law and the jury draws its own conclusion
from the evidence”.
Expert opinion may never be received on a question of domestic law 83 .Expert opinion should not
be allowed to force a view of the application of the relevant law upon the judge.
ADMISSIBILITY OF OPINIONS BY NON-EXPERTS
79 (1975)QB
80 (1974)AC
81 R v Stamford 1972) 2 QB
82 (1942)
83 Prigmore v Wilbourne (2003)