LAW OF EVIDENCE II - GPR 207
Lecture Notes
Module 2: EVENING
Taught By: Mr. MUTHOMI THIANKOLU
These notes have been written by Joseph McDonald and photocopying is prohibited 1
, LECTURE 9: FRIDAY 15 th FEBRUARY 2013 – SHERIA HALL 5.30-8.30 PM
RECAP FROM EVIDENCE 1
EVIDENCE AND THE DIFFERENT TYPES OF EVIDENCE
Section 3 (1) of the Evidence Act defines “evidence” in the following terms: – “evidence”
denotes the means by which an alleged matter of fact, the truth of which is submitted to
investigation, is proved or disproved ; and, without prejudice to the foregoing generality,
includes statements by accused persons, admissions and observation by the court in its
judicial capacity.”
Evidence by which facts may be proved or disproved in courts is known as judicial
evidence.
It is used to prove either facts in issue or relevant facts from which facts in issue may be
inferred.
It covers testimonies of witnesses, documents and objects that can be used as evidence.
For the purposes in understanding the law of evidence in Kenya, the underlying principle
in the definition is that “evidence is concerned with all the rules, means and procedures
followed when proving facts during the trial of an issue in Court. The purpose of these
rules together with the rules of law of procedure is to e nsure a fair trial for each party.
There are principally 5 types of judicial evidence namely
1.TESTIMONY EVIDENCE
This is the most basic form of evidence. It consists of the oral narration of a duly sworn
witness of fact in the court at the proceeding in question. In other words Testimony
comprises the oral statement of a witness made on oath in open court offered as evidence
of the truth of what is asserted.
Testimony is the statement of a witness in court offered as evidence of the truth of that
which is stated.
Many of the rules of evidence such as those concerned with the oath, the competency of
witnesses and their cross -examinations are designed to ensure that testimony shall be as
reliable as possible.
There is a sense in which testimony is the only item of judicial evidence, a hearsay
statement if oral has to be narrated to the court; if it is contained in a document, the
document has usually although not invariably to be produced to the court and identified
by a witness, the same is true of things.
In all of the above cases however testimony is used for widely different purpose from that
of inducing the court to accept the witness’s direct statement concerning a relevant fact
and that is why hearsay statements, documents and things, although normally proved by
a witness, may properly be regarded as separate items of judicial evidence.
The general rule is that a witness can give evidence only of facts of which he has personal
knowledge, something that has perceived with one of his five senses.
The only exception to the general rule is the expert witness testifying to matters calling
for expertise, parts of his testimony may be based on information derived from textbooks
or on what he has learned from other people.
The party against whom testimony is giv en has a right to cross -examine the witness and
this right, coupled with the personal knowledge rule; lay at the root of the ban on hearsay
evidence.
The probative value of a statement is diminished if it is not made by witness when giving
evidence in the proceeding.
Generally, testimony will be admissible as evidence of the truth of what is asserted if it is
first-hand evidence, i.e. if it constitutes what the witness perceived with one of their five
These notes have been written by Joseph McDonald and photocopying is prohibited 2
, senses:– “oral evidence must in all cases be direct evid ence…” (Section 63 of the
Evidence Act)
2. HEARSAY EVIDENCE
Hearsay evidence refers to testimony given or repeated in court by a person other than
the one perceived it.
For you start from the premise that repeating in court what you heard another person say
is not admissible in a court as direct evidence of that fact and this draws from section 63
of the Evidence Act which explicitly provides that oral evidence must be direct.
In essence, hearsay is a statement other than one made by a witness in the cour se of
giving evidence in the proceeding in question by any person whether it was made on oath
or not and whether it was made orally ,in writing or by signs and gestures which is offered
in as evidence of the truth of its contents. (By Professor Cross).
The above proposition by Prof Cross stipulates that a person’s out -of-court statement
could not be used “testimonially” to prove the truth of some fact narrated by the
statement. See as per Lord Wilberforce in Ratten vs R [1972] AC 378 at 387.
A court could not in other words be asked to accept that something was true because X
(who made the statement being reported to the court) said it was, even if it was made
under oath.
Hearsay is also known as secondary evidence or indirect evidence.
As a general rule hea rsay is inadmissible as evidence of the truth of what is asserted.
The rationale for the exclusionary approach was explained in the case
Teper vs. R [1952] AC 480 at 486
“The rule against the admission of hearsay evidence is fundamental. It is not the b est evidence
and it is not delivered on oath. The truthfulness and accuracy of the person whose words are
spoken to by another witness cannot be tested by cross -examination, and the light which his
demeanour would throw on his testimony is lost.”
The danger against which this fundamental rule provides a safeguard is that untested
hearsay evidence will be treated as having a probative force which it does not
deserve.
According to the common law the hearsay rule applied only if the purpose was to
prove the truth of some fact stated in the assertion. If the assertion was offered in
evidence for some other purpose for example to show that a statement was made as
opposed to showing that it was true, the hearsay rule did not apply and the evidence
of the assertion was admissible. The classic expression of this fundamental distinction
was in the judgment of the Privy Council in
Subramanian vs. Public Prosecutor [1956] 1 W.L.R 965 at 969
“Evidence of a statement made to a witness by a person who is not himself call ed as a witness
may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to
establish the truth of what is contained in the statement. It is not hearsay and is admissible
when it is proposed to establish by the evidence not the truth of the statement but the fact that
it is made.”
NB: Hearsay evidence may be given to prove that a statement was made, rather than to
prove the truth of the statement (see Subramanian v Public Prosecutor [1956] 1 W.L.R.
965 on allegation that terrorists (not called as witnesses) had forced the appellant to
carry ammunition).
These notes have been written by Joseph McDonald and photocopying is prohibited 3
, 3.DOCUMENTARY EVIDENCE
This refers to evidence contained in documents and can be adduced in court as so.
Documentary evidence is evidence in the form of recorded documen t.
While many people may think of written documents, recordings in other media are also
considered documentary evidence e.g a photograph or film would be classified as
documentary evidence.
The best type of evidence of a document is said to be the original copy and it must be
adduced if it is to be relied upon e.g a contract offered to prove the terms it contains is
documentary evidence.
The contents of documents may be incorporated in the evidence of a witness who swears
for instance that he entered into a written contract and that court may be refer to them
because they contain admissible hearsay statements as when an entry made by a
registrar e.g of marriages is produced to prove this occurrence.
Documentary evidence consists of documents produced for ins pection by the court.
A document for the purpose of the law of evidence has no single definition, the meaning
of the word varies according to the nature of the proceedings and the particular context in
question, suffice it to say for present purposes, that in certain circumstance the word is
defined to include not only documents in writing, but also maps, plans, graphs, drawings,
photographs, discs, tapes, video -tapes, films and negatives.
Documents may be produced to show their contents, their existence or their physical
appearance.
The contents of documents may be received as evidence of their truth, by way of
exception to the hearsay rule, or for some other purpose for example to identify the
document or to show what its author thought or believed.
Strictly speaking the contents of a document need not be treated as a separate item of
judicial evidence although it is convenient to do so because they are governed by special
rules. Like oral statements they are also subject to the general rules of evidence on
admissibility, their reception in evidence is also subject to two additional requirements,
namely
1. One of these requirements relates to the proof of their content
2. The other concerns proof of the fact that the document was properly executed.
NB:The is to illustrate the difference between Primary Evidence which the best and
Secondary Evidence which is evidence by its nature suggests that better evidence
may be available.
As a general rule a party seeking to rely on the contents of a document must adduce
primary evidence of those contents, which is usually the original of the document in
question as opposed to secondary evidence of those contents for example a copy of the
document, a copy of a copy of the document or oral evidence of its content. (The
distinction between primary and secondary evidence is also of importance in relation to
the proof of facts contained in a document to which private privileges attaches).
Where a document is produced to show the bare fact of its existence or its physical
appearance for example the substance of which it is made or the condition which it is in, it
constitutes a variety of “real evidence”.
4.THINGS OR REAL EVIDENCE
This refers to material objects or exhibits which are produced for the court’s inspection.
Real evidence comprises any material object, animate or inanimate, produced in court for
purposes of proving a fact in issue e.g Remember the goat adduced in court to prove the
deleterious effects of the “Mathenge” tree?
The objects produced in court may range from mer e objects (movable or immovable) to
human beings but this does not include documentary evidence.
These notes have been written by Joseph McDonald and photocopying is prohibited 4
Lecture Notes
Module 2: EVENING
Taught By: Mr. MUTHOMI THIANKOLU
These notes have been written by Joseph McDonald and photocopying is prohibited 1
, LECTURE 9: FRIDAY 15 th FEBRUARY 2013 – SHERIA HALL 5.30-8.30 PM
RECAP FROM EVIDENCE 1
EVIDENCE AND THE DIFFERENT TYPES OF EVIDENCE
Section 3 (1) of the Evidence Act defines “evidence” in the following terms: – “evidence”
denotes the means by which an alleged matter of fact, the truth of which is submitted to
investigation, is proved or disproved ; and, without prejudice to the foregoing generality,
includes statements by accused persons, admissions and observation by the court in its
judicial capacity.”
Evidence by which facts may be proved or disproved in courts is known as judicial
evidence.
It is used to prove either facts in issue or relevant facts from which facts in issue may be
inferred.
It covers testimonies of witnesses, documents and objects that can be used as evidence.
For the purposes in understanding the law of evidence in Kenya, the underlying principle
in the definition is that “evidence is concerned with all the rules, means and procedures
followed when proving facts during the trial of an issue in Court. The purpose of these
rules together with the rules of law of procedure is to e nsure a fair trial for each party.
There are principally 5 types of judicial evidence namely
1.TESTIMONY EVIDENCE
This is the most basic form of evidence. It consists of the oral narration of a duly sworn
witness of fact in the court at the proceeding in question. In other words Testimony
comprises the oral statement of a witness made on oath in open court offered as evidence
of the truth of what is asserted.
Testimony is the statement of a witness in court offered as evidence of the truth of that
which is stated.
Many of the rules of evidence such as those concerned with the oath, the competency of
witnesses and their cross -examinations are designed to ensure that testimony shall be as
reliable as possible.
There is a sense in which testimony is the only item of judicial evidence, a hearsay
statement if oral has to be narrated to the court; if it is contained in a document, the
document has usually although not invariably to be produced to the court and identified
by a witness, the same is true of things.
In all of the above cases however testimony is used for widely different purpose from that
of inducing the court to accept the witness’s direct statement concerning a relevant fact
and that is why hearsay statements, documents and things, although normally proved by
a witness, may properly be regarded as separate items of judicial evidence.
The general rule is that a witness can give evidence only of facts of which he has personal
knowledge, something that has perceived with one of his five senses.
The only exception to the general rule is the expert witness testifying to matters calling
for expertise, parts of his testimony may be based on information derived from textbooks
or on what he has learned from other people.
The party against whom testimony is giv en has a right to cross -examine the witness and
this right, coupled with the personal knowledge rule; lay at the root of the ban on hearsay
evidence.
The probative value of a statement is diminished if it is not made by witness when giving
evidence in the proceeding.
Generally, testimony will be admissible as evidence of the truth of what is asserted if it is
first-hand evidence, i.e. if it constitutes what the witness perceived with one of their five
These notes have been written by Joseph McDonald and photocopying is prohibited 2
, senses:– “oral evidence must in all cases be direct evid ence…” (Section 63 of the
Evidence Act)
2. HEARSAY EVIDENCE
Hearsay evidence refers to testimony given or repeated in court by a person other than
the one perceived it.
For you start from the premise that repeating in court what you heard another person say
is not admissible in a court as direct evidence of that fact and this draws from section 63
of the Evidence Act which explicitly provides that oral evidence must be direct.
In essence, hearsay is a statement other than one made by a witness in the cour se of
giving evidence in the proceeding in question by any person whether it was made on oath
or not and whether it was made orally ,in writing or by signs and gestures which is offered
in as evidence of the truth of its contents. (By Professor Cross).
The above proposition by Prof Cross stipulates that a person’s out -of-court statement
could not be used “testimonially” to prove the truth of some fact narrated by the
statement. See as per Lord Wilberforce in Ratten vs R [1972] AC 378 at 387.
A court could not in other words be asked to accept that something was true because X
(who made the statement being reported to the court) said it was, even if it was made
under oath.
Hearsay is also known as secondary evidence or indirect evidence.
As a general rule hea rsay is inadmissible as evidence of the truth of what is asserted.
The rationale for the exclusionary approach was explained in the case
Teper vs. R [1952] AC 480 at 486
“The rule against the admission of hearsay evidence is fundamental. It is not the b est evidence
and it is not delivered on oath. The truthfulness and accuracy of the person whose words are
spoken to by another witness cannot be tested by cross -examination, and the light which his
demeanour would throw on his testimony is lost.”
The danger against which this fundamental rule provides a safeguard is that untested
hearsay evidence will be treated as having a probative force which it does not
deserve.
According to the common law the hearsay rule applied only if the purpose was to
prove the truth of some fact stated in the assertion. If the assertion was offered in
evidence for some other purpose for example to show that a statement was made as
opposed to showing that it was true, the hearsay rule did not apply and the evidence
of the assertion was admissible. The classic expression of this fundamental distinction
was in the judgment of the Privy Council in
Subramanian vs. Public Prosecutor [1956] 1 W.L.R 965 at 969
“Evidence of a statement made to a witness by a person who is not himself call ed as a witness
may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to
establish the truth of what is contained in the statement. It is not hearsay and is admissible
when it is proposed to establish by the evidence not the truth of the statement but the fact that
it is made.”
NB: Hearsay evidence may be given to prove that a statement was made, rather than to
prove the truth of the statement (see Subramanian v Public Prosecutor [1956] 1 W.L.R.
965 on allegation that terrorists (not called as witnesses) had forced the appellant to
carry ammunition).
These notes have been written by Joseph McDonald and photocopying is prohibited 3
, 3.DOCUMENTARY EVIDENCE
This refers to evidence contained in documents and can be adduced in court as so.
Documentary evidence is evidence in the form of recorded documen t.
While many people may think of written documents, recordings in other media are also
considered documentary evidence e.g a photograph or film would be classified as
documentary evidence.
The best type of evidence of a document is said to be the original copy and it must be
adduced if it is to be relied upon e.g a contract offered to prove the terms it contains is
documentary evidence.
The contents of documents may be incorporated in the evidence of a witness who swears
for instance that he entered into a written contract and that court may be refer to them
because they contain admissible hearsay statements as when an entry made by a
registrar e.g of marriages is produced to prove this occurrence.
Documentary evidence consists of documents produced for ins pection by the court.
A document for the purpose of the law of evidence has no single definition, the meaning
of the word varies according to the nature of the proceedings and the particular context in
question, suffice it to say for present purposes, that in certain circumstance the word is
defined to include not only documents in writing, but also maps, plans, graphs, drawings,
photographs, discs, tapes, video -tapes, films and negatives.
Documents may be produced to show their contents, their existence or their physical
appearance.
The contents of documents may be received as evidence of their truth, by way of
exception to the hearsay rule, or for some other purpose for example to identify the
document or to show what its author thought or believed.
Strictly speaking the contents of a document need not be treated as a separate item of
judicial evidence although it is convenient to do so because they are governed by special
rules. Like oral statements they are also subject to the general rules of evidence on
admissibility, their reception in evidence is also subject to two additional requirements,
namely
1. One of these requirements relates to the proof of their content
2. The other concerns proof of the fact that the document was properly executed.
NB:The is to illustrate the difference between Primary Evidence which the best and
Secondary Evidence which is evidence by its nature suggests that better evidence
may be available.
As a general rule a party seeking to rely on the contents of a document must adduce
primary evidence of those contents, which is usually the original of the document in
question as opposed to secondary evidence of those contents for example a copy of the
document, a copy of a copy of the document or oral evidence of its content. (The
distinction between primary and secondary evidence is also of importance in relation to
the proof of facts contained in a document to which private privileges attaches).
Where a document is produced to show the bare fact of its existence or its physical
appearance for example the substance of which it is made or the condition which it is in, it
constitutes a variety of “real evidence”.
4.THINGS OR REAL EVIDENCE
This refers to material objects or exhibits which are produced for the court’s inspection.
Real evidence comprises any material object, animate or inanimate, produced in court for
purposes of proving a fact in issue e.g Remember the goat adduced in court to prove the
deleterious effects of the “Mathenge” tree?
The objects produced in court may range from mer e objects (movable or immovable) to
human beings but this does not include documentary evidence.
These notes have been written by Joseph McDonald and photocopying is prohibited 4
