Evidence Good Notes

AMRI’S NOTES
I. INTRODUCTION TO THE LAW OF EVIDENCE
1. What is Evidence?
S.3 of the TEA provides that evidence denotes the means by which an alleged matter of
fact, the truth of which is submitted to investigation, is proved or disproved; and includes
statements and admissions by the accused person.
Phipson on Evidence defines evidence as (a) the means, apart from argument and
inference, whereby the court is informed as to the issues of fact as ascertained by the
pleadings; (b) the subject matter of such means (at 2)
Black’s Law dictionary defines Evidence as something (including testimony, documents
and tangible objects) that tends to prove or disprove the existence of an alleged fact (at
595)
Murphy on Evidence defines evidence as any material which tends to persuade the court
of the truth or probability of some fact asserted before it (at 1)
Summary of the definition:
 Evidence is mainly concerned with facts and not the law
 It is a means of proving that a certain fact is either truthful or not/ in existence or not
 Note that some material may satisfy the definition, i.e. they may persuade the court of
the truth of a fact before it, but they are excluded by some laws or rules, e.g. a sale
agreement for which stamp duty hasn’t been paid as required by the law
 It is not the truth of the matter that counts but the evidence.
2. Historical Background
The Tanzanian Evidence Act, together with the evidence Acts in the other two East
African countries, Kenya and Uganda, are based on the Indian Evidence Act of 1872,
which in turn is based on the English common law of Evidence. There are however a few
differences between the English Common Law of Evidence and the Indian Act, as well as
the Indian Act and the East African countries’ Acts. This discussion however focuses on
the TEA.
“NO SUCCESS WITHOUT SACRIFICE” 1

AMRI’S NOTES
 In 1897, the East African Order in Council and the Zanzibar Order in Council
were promulgated (announced officially), and they provided that the High Court
in those countries should exercise jurisdiction in conformity with certain Indian
enactments, one of which was the Indian Evidence Act
 In 1907, the East African Protectorate Applied Acts Ordinance was passed,
providing that any amendments or substitution to the Indian enactments
applicable in the Protectorate should only apply to the Protectorate of they were
passed before the passing of the East African Protectorate Applied Acts
Ordinance
 In 1917, a Zanzibar Evidence Decree was enacted, replacing the Indian Evidence
Act
 In 1920, the Tanganyika Indian Acts (Application) Ordinance was passed, which
applied the Indian Evidence Act as it stood at that date to the territory.
 In 1967, the Tanganyika Evidence Act no. 6 of 1967 was enacted, replacing the
application of the Indian Evidence Act in Tanganyika. (Note: In Zanzibar they
still use the Evidence Decree.
 The 1967 TEA applies to all judicial proceedings before the Magistrate’s Courts
and High Courts in Tanganyika, but does not apply to Primary Courts or to
affidavits presented to any court or officer of the court, or to proceedings before
an arbitrator.
3. Terminology and Definitions
i. Commonly used terms
 Tender/ adduce/introduce evidence: to put evidence before the court. The
Party who tenders evidence may also be referred to as the proponent of the
evidence. Note that this may be any party; prosecution or accused;
plaintiff or defendant.
 The party who is adverse to the proponent of the evidence is known as the
opponent. Again this may be any party.
 When a court permits a party to put evidence before it, the court is said to
“admit” or “receive” the evidence. From this we have the terms admissible
or inadmissible, admitted, not admitted

AMRI’S NOTES
 FACT: S. 3 of the TEA defines a fact to include: (a) any thing, state of
things, or relation of thins, capable of being perceived by the senses and
(b) any mental condition of which any person is conscious.
Black’s law dictionary defines a fact as follows “(a) something that
actually exists: an aspect of reality. Facts include not just tangible things,
actual occurrences and relationships, but also states of mind such as
intentions and opinions; (b) an actual or alleged event or circumstance as
opposed to its legal effect, consequence, or interpretation.
Facts which a party in a case is permitted to prove are (a) facts in issue (b)
relevant facts and (c) facts forming part of the res gestae [rays jestee/
jesti]
Fact in Issue
Also refereed to as material fact S. 3 of the TEA defines this as “any fact
from which, either by itself, or in connection with other facts, the
existence, non-existence, nature or extent of any right, liability of
disability, asserted or denied in any suit or proceeding, necessarily
follows” . In simple words, it is the fact that one party alleges and the
other party controverts. It is a fact that is significant or essential to the
issue at hand. A fact in issue is determined by:
(a) Pleadings: a party must plead a fact in issue and ask for relief.
(b) Substantive law: this is the law that determines rights and obligations
Relevant facts
This is evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence. These facts may also
be described as facts from the existence or non existence of which a fact in
issue may be inferred. This is also known as circumstantial evidence. In
Woolf vs. Woolf, (CA) [1931] 134, it was held that proof of the fact that a
couple, who were not married to each other, occupied the same bedroom
was clearly probative (relating to proof) of an allegation that they had

AMRI’S NOTES
committed adultery, and of the existence of the time of an adulterous

relationship.
Facts forming part of the res gestae
Res gestae: latin for “things done/things transacted”. These are fats
surrounding an event. Will be discussed in detail later.
ii. Substantive Definitions
Evidence may substantively fall into the following categories
a. Direct versus Circumstantial Evidence
Direct evidence requires no mental process on the part of the court in
order to draw the conclusion sought by the proponent of the evidence,
other than the acceptance of the evidence itself. Circumstantial evidence
on the other hand requires the court to not only accept the evidence, but to
also draw inferences/ conclusions from it. In other words, it is evidence
based on inference and not on personal knowledge of information. E.g. X
is charged with robbing a bank, and is seen by Y running from the bank
clutching a wad of bank notes. Y’s evidence that he saw X running from
the bank clutching a wad of notes is direct evidence, while the
circumstantial evidence is that X robbed the bank. The court must thereby
draw inferences from the facts perceived by Y I.e. X’s running, clutching
notes.
b. Direct/Percipient versus hearsay Evidence
Percipient means perceiving, and while direct is also an appropriate word,
the word percipient more appropriately describes the opposite of hearsay
evidence.
Percipient evidence is evidence of facts which a witness personally
perceives using any of her senses, while hearsay evidence is used when a
witness recounts a statement made (orally, in a document or otherwise) by
another person, and the proponent of the evidence asserts that what the
person who made the statement said was true. In other words, it is hearsay
if the statement is being repeated in order to prove the truth of its contents.

AMRI’S NOTES
-Hearsay evidence is inadmissible except when it falls under exceptions

recognized by the law.
c. Primary versus Secondary Evidence
These categories relate to proving of the contents of a document. Primary
evidence relates to the production of the original document or an
admission (by opponent) of its contents. Secondary evidence consists of a
copy of the document, however made, or oral evidence about what its
contents are/were. (discussed later in detail)
d. Presumptive/Prima Facie (prima fashee) versus Conclusive Evidence
Presumptive or prima facie evidence is evidence which is declared,
usually by statute, to be sufficient evidence of a fact, unless and until an
opponent adduces evidence to the contrary, in which case the court will
weigh all the evidence tendered before arriving at a conclusion. E.g. if a
child is born during the continuance of a marriage between his mother and
any man, or within 280 days after its dissolution, the mother remaining
unmarried, a presumption that the child is the legitimate son/daughter of
the man arises. Conclusive evidence is evidence which no party is
permitted to contradict. It is tantamount to a rule of law. E.g. a child
under the age of 10 is incapable of committing an offence (see s. 15 of the
penal code)
iii. Definition as to Form
Evidence is normally received by the court in the following forms:
a. Oral Evidence
Also testimonial evidence. S.3 of the TEA defines this as “all statements
which the court permits or requires to be made before it by witnesses in
relation to matters of fact under inquiry. In other words, this consists of
oral statements of witnesses, made in open court, offered as evidence of
the truth of that which is ascertained. Oral evidence is usually given on
oath or affirmation.
b. Documentary Evidence

AMRI’S NOTES
S.3 of TEA defines this as all documents produced as evidence before the
court. It may also be referred to as evidence afforded by any document
produced for the inspection of the court.
c. Real Evidence
Physical evidence. Denotes any material from which the court may draw
its own conclusions or inferences using its own senses. Includes material
objects, animate or inanimate, produced in a court of law as evidence.
RELEVANCY AND ADMISSIBILITY ss. 7 - 18
Admissible evidence is evidence which a court of law will receive for purposes of
determining the existence or non existence of a fact in issue. Black’s Law dictionary
defines admissible as “capable of being legally admitted; allowable, permissible”
Admissibility is a matter of law, to be determined by the Court. All evidence that is

sufficiently relevant to prove or disprove a fact in issue and which is not excluded by any
of the exclusionary rules of evidence is admissible in evidence.
Key points:
Admissible evidence must be
 Relevant
 Must NOT be excluded by any of the rules of evidence
 It therefore follows that certain evidence may be logically relevant, but may be
excluded from admissibility by a certain provision of the Act. For instance,
hearsay
Relevancy is defined in S.3 of the Act in the following manner: “One fact is said to be
relevant to another when the one is connected with the other in any of the ways referred
to in the provisions of this Act relating to the relevancy of facts”. S. 7 of the Act further
provides that “subject to the provisions of any other law, evidence may be given in any
suit or proceeding of the existence or non- existence of every fact in issue, and of such
other facts as are hereinafter declared to be relevant and of no others.
Key points:
 Evidence of facts in issue: so long as the fact in issue is clearly laid out in the
pleadings, any evidence on the existence of the same is admissible. This is the
kind of evidence known as direct evidence
 Evidence of relevant facts, also known as circumstantial evidence, can only be
admitted if falls under one or more of the categories specified by the TEA. These
categories are covered by ss. 8-18
 However as we shall see later on, relevancy is determined by human
logic/common sense and experience. The Act provides broad categories, the
specifics of which have to be determined on a case to case basis.

AMRI’S NOTES
Categories of Relevant Facts ss. 8 –18
1. Facts falling under the doctrine of Res Gestae:
 These are facts forming part of the same transaction/facts surrounding an event.
Sometimes, facts are so connected to the fact in issue that they form part and
parcel of the same transaction. E.g. A beats his son B over a period of 2 years.
After the last beating, B dies, not just because of the last beating, but because of
the problems caused by the accumulative beatings. Fact in issue: Did A’s beating
of B cause B’s death? The fact that A had beaten B over a period of time is so
connected to the fact in issue; it forms part of the same transaction.
 S.8 provides that facts which, though not in issue, are so connected with a fact in
issue as to form part of the same transaction are relevant, whether they occurred at
the same time and place or at different times and place.
 Ss. 9 – 11, further specify facts that form part of the same transactions as
hereunder:
o S.9 Facts which are the occasion (reason of), cause or effect of facts in
issue
o S.10 Facts relating to motive, preparation, and previous or subsequent
conduct
o S. 11 Facts necessary to explain or introduce facts in issue or relevant facts
See the need for Logic/common sense and experience?
See how the above sections relate to the same transaction?
2. Similar facts Evidence

 S. 16: Facts showing existence of state of mind or of body or of bodily feeling
 S.17: Facts bearing on question whether act was intentional or accidental
3. S.12 Things said or done by conspirator in reference to common design
4. S. 13 When facts not otherwise Relevant are relevant
5. S. 14: Facts tending to enable the court determine damages
6. S. 15 Facts affecting the existence of a right or custom
7. S. 18 Relevancy of existence of course of business
Furthermore, evidence of the following is admissible under certain circumstances:

Admissions
2. Confessions
3. Statements by Persons who cannot be called as witnesses
4. Statements made under special circumstances
5. Judgments of Courts
6. Opinions of third parties
7. Character of Parties
(these will be discussed later in detail)
1. THE DOCTRINE OF RES GESTAE

AMRI’S NOTES
Under the English common law, any act, declaration or circumstance which constitute,
accompany or explain a fact or transaction in issue are said to be admissible in evidence.
Gilmer’s law dictionary defines res gestae as “all of things done including words spoken
in the course of a transaction or event”. Osborne’s dictionary defines the same as “the
facts surrounding or accompanying a transaction which is the subject of legal proceedings
or all the facts so connected with the fact in issue as to introduce it, explain its nature or
form in connection with it one continuous transaction.
Although the phrase res gestae is not found in the TEA, the principle underlying the
English law relating to the phrase is incorporated in sections 8 – 11 of the Act.
Analysis of ss. 8 – 11
 S. 8: Facts which, though not in issue, are so connected with a fact in issue as to form
part of the same transaction are relevant, whether they occurred at the same time and
place or at different times and place.
 S.8 lays down the general principle of res gestae, and sections 9 – 11 expound and
illustrate this principle.
 Facts which may be proved as part of res gestae must be facts other than those in
issue.
Illustration:
(a) The question is whether certain goods ordered from Ben were delivered to Benjamin.
The fact that the goods were delivered to several middle persons successively are relevant
facts. Each delivery to a middle person is a relevant fact, which may be proved through
evidence, although the fact in issue is whether the goods were delivered from Ben to
Benji.
(b) The fact in issue is whether Patience murdered her boss Priscilla. The fact that shortly
before the murder Patience was seen by the neighbour running after Priscilla with a knife
in hand is a relevant fact which may be proved in evidence (e.g. foot prints). The fact in
issue is not whether Patience ran after Priscilla with a knife, but whether she killed
Priscilla. The chase is only a relevant fact.
In R vs. Premji Kurji (1940) 7 EACA 58, the deceased had been killed with a sword.
Evidence at the trial was that immediately prior to his death, the accused had assaulted
the deceased’s brother with the sword and said threatening things to the deceased. The
accused was convicted and he appealed, one of the grounds of appeal being that the
evidence of the assault on the deceased’s brother should not have been admitted under the
principle of res gestae.
It was held that the evidence was properly admitted because: -
1. The two occurrences were so closely interconnected that the wounding of
deceased’s brother must be regarded as part of res gestae on the trial of the
accused on the murder of the deceased.
2. The fact that the accused had a sword and had used it immediately before the
killing must be admissible as strong evidence of the opportunity to commit
offence charged.

AMRI’S NOTES
Although the facts which constitute the transaction may occur at different times, time is a
crucial factor. The incident claimed to be part of the res gestae must have occurred when
the transaction is ongoing, and not when it is complete.
In Ramadhan Ismail v. The Crown (1950) 7 ZLR Page 36, the accused was charged with
rape. The victim was a young girl, who rushed home in tears and informed her parents.
She took her father to the house, found R and pointed out and said that the man was the
one that had raped her. It was held that these utterances could not be considered as
forming part of the res gestae because “when it comes to a matter concerning res gestae,
minutes are of the utmost importance.” This decision followed the decision in the case of
R vs. Bedingfield.
In R vs Bedingfield (1879) 14 COX C.C Page 341, Bedingfield was charged with the
murder of a woman. The lady, who had been inside with Bedingfield, rushed out of the
house, with her throat was slit open, and bleeding, and exclaimed, “Oh dear Auntie, see
what Bedingfield has done to me.” In the trial of Bedingfield for the murder of the
woman, it was held that although statements made while the act is being done are
admissible, the victim’s statement could not be received as evidence because “it was
something stated by her after it was all over and after the act was completed.”
In Ratten v. R, (1972) AC 378, Ratten was charged and convicted of murder of his wife
by shooting her. His defence was that his gun had accidentally gone off while cleaning it,
and that she died because she was in the bullet’s path. During the hearing, evidence was
given that the shooting took place between 1.12 pm and 1.20 pm. Further evidence was
given by a telephone operator to the effect that at about 1.15 pm, she received a telephone
call from Ratten’s house which was being made by a hysterical woman in fear saying
“Get me the police”. One issue at the trial was whether this evidence was admissible
under the doctrine of res gestae.
It was held that the evidence was admissible as part of res gestae because not only was
there a close association in place and time between the statement and the shooting, but
also the way in which the statement was made (hysterically) and the tone of voice used
showed that the statement was being forced from the wife by an overwhelming pressure
of contemporary (current) events.
In R vs. Andrews 1987 IAE Page 113, the accused was convicted of manslaughter in a
burglary and he appealed. The allegation was that the accused and another man with
blankets covering his head knocked on the victim’s door. When the victim opened, the
accused stabbed him and assuming death removed the blanket and proceeded to steal.
The victim however got up, went to the flat below for help. The police were called and
arrived momentarily. When asked by police who the wound inflictor was, he said it was
“Donald”. Another police constable said he heard the man say “Donaldson”
The House of Lords held that the victim’s statement had been properly admitted under
res gestae because:
 the primary question which the court must ask is, can the possibility of distortion
be disregarded?

AMRI’S NOTES
 In order to answer the question, the court must consider the circumstances in
which the particular statement was made to ensure that the utterance was made
purely in reaction to the event thereby giving no opportunity for a reflectional
answer.
 In order for the statement to be sufficiently spontaneous, it must be so closely
associated with the events exciting it that it can be fairly be stated that the mind of
the statement maker was still dominated by the event.
 The court must be satisfied that all the circumstances of the case are such that
there was no possibility of any distortion to the advantage of the maker or to the
disadvantage of the accused.
 S. 9 Facts which are the occasion, cause or effect, immediate or otherwise, of relevant
facts, or facts in issue, or which constitute the state of things under which they
happened, or which afforded an opportunity for their occurrence or transactions, are
relevant.
 No case law on the subject.
The section may be summarized as follows: All facts and events leading up to (before),
accompanying (during), and following (after) the transaction in issue, which are so
inseparably connected with each other as to throw light to the matter in issue and help its
proper understanding, are relevant.
Illustrations:
(a) The fact in issue is whether Jack robbed Jill.
The fact that shortly before the robbery, Jill went to a pub with money in his possession
and showed other people the Tshs. I million in cash, which he had won in a lottery is a
relevant fact. It does not matter whether Jack was among the people being shown the
money. This fulfills the “occasion” (chance, opportunity, opening,) part of s. 9.
(b) The fact in issue is whether Adam murdered Andrew.

Marks on the ground, produced by a struggle at or near the place where the murder was
committed are relevant facts. The marks are a fact that constitute “the state of things
under which they happened”, i.e. the murder was as a result of a struggle, which Andrew
resisted.
(c) the fact in issue is whether Jane poisoned John.

The state of John’s health before the symptoms brought about by the poison, and the
habits of John, which Jane knew, and which “afforded an opportunity” for the
administration of poison are relevant facts.
“Which afforded an opportunity”
While opportunity is always relevant, the Court must guard against jumping to the
conclusion that a person committed a crime just because he/she had the opportunity to.
E.g. A female servant was charged the murder of her employer. No person was in the
house during the commission of the offence, and doors and windows were locked and

AMRI’S NOTES
secured. The accused was convicted and executed on the assumption that no one else had
access to the house. Afterwards, the real murderers confessed that they had gained
entrance into the house, by means of a board thrust across the street from the upper
window of the neighbouring house to the upper window of the house in which the
deceased lived, murder the woman and retreated the same way, leaving no traces behind
them.
NOTE: in all situations, this evidence must be supported by other evidence and an
accused cannot be convicted from this type of evidence alone.
 S. 10
(i) Any fact which shows or constitutes a motive or preparation for any fact in issue
or relevant fact is relevant
Motive:
In R vs. Makindi 1961 E.A 32, the accused threatened to beat a young boy in
revenge, as the boy had previously caused him to be imprisoned. “As you have
made me imprisoned, I will beat you till you die.” It was held that the evidence
was admissible to explain and substantiate the cause of death of the boy.
Preparation – illustration (a)

The fact in issue is whether Jack murdered Jill by administering poison. The fact
that before the death of Jill, Jack procured a poison similar to the one
administered to Jill is relevant.
(ii) The previous/subsequent conduct of any party to any proceedings/suit or her

agent, in reference such suit or proceedings, or to a fact in issue or to a relevant
fact, is relevant if such conduct influences or is influenced by a fact in issue or a
relevant fact
Note that party includes plaintiff, defendant and accused. Agent includes an
advocate
Illustration (b): John is accused of a kidnapping, robbery and murder. The fact
that after the crime he fled by sea and concealed his identity is relevant.
(iii) The previous/subsequent conduct of a victim of an offence (complainant), which

offence is the subject of any proceedings, is relevant, if such conduct influences
or is influenced by a fact in issue or a relevant fact
Illustration(c): The question is whether Ben was assaulted. Shortly after the
alleged assult he made a complaint to the police relating to the assult. The
circumstances under which the complaint was made and the terms of the
complaint thereof are relevant.
(iv) When the conduct of a person is relevant, any statements made by him or in his
presence and hearing, which affects such conduct, is relevant
Illustration (d): the fact in issue is whether Anthony robbed Andy

AMRI’S NOTES
The fact that after Andy was robbed, Angela said in Anthony’s presence that “the
police are coming to look for the person who robbed Andy”, and immediately
afterwards Anthony ran away, are relevant. (This does not necessarily mean that
Anthony committed the crime. He could be one of those people that the police
always suspect of crimes
(v) The word conduct does not include statements, unless those statements
accompany and explain acts other than statements.
E.g. illustration (c), if all that Ben did was say that he had been assaulted, without
making a complaint, such a statement would not be relevant as “conduct” under
this section.
(vi) The above exception does not affect relevancy of statements under any other
sections of the Act.
 S. 11
(i) Facts necessary to explain or introduce a fact in issue or a relevant fact
are relevant
Introductory:
Illus (a) : The question is whether a document is Peter’s will. The state of Peter’s
property at the date of the alleged will are relevant facts.
Explanatory:
Illus (b): Paul is accused of a crime. The fact that immediately after the
commission of a crime, Paul left his house in Mwanza, is relevant under S. 10, as
conduct subsequent to a fact in issue. The fact that at the time he left home, he
had been informed that his father had passed away in Mbeya and was to be buried
the next day is relevant to explain the reason why he left home suddenly.
(ii) Facts which support or rebut (refute, deny) an inference (presumption,

deduction) suggested by a fact in issue or a relevant fact are relevant (see
illustration b)
(iii) Facts which establish the identity of any thing or person whose identity is
relevant are relevant. See Stanislasi alias Kanyambo s/o Kitambo, (1942) I TLR
258
The Court of Appeal held that:
The test when a question of identity is involved should not only be the
similarity of the collateral facts to the facts in issue but also their
proximity in point of time; and we hold that evidence should not be
admitted except where the similarity and the proximity of the two … acts
is such that it is unreasonable to draw any other conclusion than that the
accused was the person who was concerned in each…
(iv) Facts which fix the time or place at which any fact in issue or relevant
fact happened are relevant

AMRI’S NOTES
(v) Facts which show the relation of parties by whom any such fact
transacted are relevant
2. SIMILAR FACTS EVIDENCE
Provided for in S.16 and 17 of the Evidence act.
S: 16: Facts showing the existence of state of mind, or of body or of bodily feeling
S. 17: Facts bearing on the question whether an act was accidental or intentional
This refers to evidence of either previous or subsequent acts similar to fact in issue or a
relevant fact.
Similar fact evidence is only admissible where it is sought to prove that an act forms part
of a series of similar occurrences. A question must be raised whether an act by the
accused person was intentional or accidental or was done on particular knowledge or
intention. Similar fact evidence is admissible to rebut the defence of an accident, mistake
or another innocent state of mind
Such evidence may be used to prove an offence where it can be shown to form part of a
series of occurrences where the accused was concerned. The accused is however
protected by law from being victimized being known to commit similar offences.
Evidence of previous similar facts has high degree of being prejudiced. In certain
circumstances, it is fair for such evidence to be inadmissible
Makin and Makin vs. The Attorney General of South Wales 1894 AC 57
The body of a baby was discovered in the backyard of the house of the accused persons,
who were a married couple. Evidence showed that they had adopted a baby. Evidence
showed that the bodies of other babies, similarly adopted by the defendants were found
buried in other locations where they had lived.
The evidence of the previously buried babies was found to be admissible and they were
convicted
On appeal, it was held that the evidence of the similar previous occurrences was properly
admitted as evidence relevant to the fact in issue
Lord Chancellor Herschell:

“It is undoubtedly not competent for the prosecution to adduce evidence tending to show
that the accused had been guilty of criminal acts other than those covered by the
indictment for the purpose of leading to the conclusion that the accused is a person likely
from his/her criminal conduct to have committed the offence for which he is being tried.
On the other hand, the mere fact that the evidence adduced tends to show the commission
of other crimes does not render it inadmissible if it be relevant to an issue before the jury
and it may be so relevant if it bears upon the question whether the acts alleged to
constitute the crime charged in the indictment were designed or accidental or to rebut a
defense which would otherwise be open to the accused person”.

AMRI’S NOTES
Summary
(i) As a general rule, you do not convict a person simply on the basis that he would
likely have committed an offence because of his previous character.
(ii) Evidence of previous character may be relevant if the accused raises defence that the
fact in issue was an accident, or any other defence open to the accused.
Harris Vs. The Director of Public Prosecutions (1952) AC Page 694

Harris was charged with series of 8 larcenies, which occurred between May and July
1951. These thefts occurred in an enclosed market and at the time the theft occurred, the
gates would be shut and the defendant would be on duty alone. When the last incident
occurred, the defendant was found to have been in the immediate vicinity of the office
broken into. He was charged with the all the 8 larcenies, acquitted of the first seven and
convicted on the 8th one.
It was held that the prosecution may adduce all proper evidence which tends to prove the
charge without withholding any evidence until the accused person has set out specific
defence which calls for rebuttal. In other words, the prosecution in a given case need not
await to know the direction the case will take in order to adduce similar facts evidence.
 A court of aw should look for that striking similarity between fact in issue and the
previous criminal records alleged against the accused before deciding whether or not
to admit the evidence.
Striking Similarity
(a) DPP vs. Boardman 1975 AC 421

The appellant was a school headmaster charged with the offence of buggery (sodomy). It
was alleged that he committed this with a student (S) aged 16. He was also accused of
inviting H to commit the same offence with him. The defence he raised was that both H
and S were lying and this never took place.
The Court admitted the evidence of H on the count involving S and vice-versa, arguing
that in each case, the homosexual conduct alleged by both boys against the headmaster
was of the most unusual kind. This is because it involved a request by the headmaster, a
middle aged man, to an adolescent young boy, to play the active role in the act.
Furthermore, both S and H were woken up by the headmaster at about midnight, and the
headmaster used similar words to induce their participation in the act. His appeal
(b) R vs. Scarrot 1978 1 (AE) 672

The defendant was charged on an indictment containing 13 counts, some of buggery,
others of assault with intention to commit buggery, involving 8 boys aged about 41/2
years. Counsel for the defence applied to the court to split up the 13 counts into separate
charges, claiming that the defendant would be prejudiced if tried on multiple indictments
The trial court held that evidence given by each youngster had a striking similarity to the
evidence by the other boys and was admissible in the other cases. The defendant was
convicted on one count of buggery, one of attempted buggery, and indecent assault on at
least 7 boys, whereby he appealed.

AMRI’S NOTES
It was held on appeal that:

 To be admissible, the evidence by its striking similarity, has to reveal an
underlying link between the matter with which it deals and the allegations against
the defendant on the count under consideration.
 The evidence admitted by the trial court does possess that positive probative value
and was strikingly similar, such that when taken together, these similarities are
inexplicable on the basis of coincidence
(c) R vs. Barrington (1981) 1 AE 1132

The accused was charged with indecently assaulting three girls in the house of a woman
with whom he was living, and who was alleged to have assisted in procuring the girls for
him, and in some instances to have participated in the offences. The evidence revealed six
distinctive features: The girls were all lured to the house as baby sitters; they were told
that the woman with whom the accused lived was a professional photographer; they were
told that they could win cash prizes for posing nude photos; they were shown
pornographic photos; the accused described himself as a well known script writer and a
friend of the stars; and similar efforts were made to persuade the girls to pose for nude
photos.
The prosecution was permitted to call three other girls to give evidence that they had
visited the house in the same circumstances and had been treated in the same manner as
the complainants, except that no indecent assult had actually been committed against
them.
During cross-examination, the accused suggested to one of the girls that the girls had
concocted the evidence.
The accused was convicted and he appealed arguing that the evidence of three other girls
should not have been admitted since none of them gave any act of indecency but
circumstances leading to the commission of the offences.
The court of appeal, in upholding the conviction, held that:
 The evidence of the three other girls was admissible because the principle issue
was whether A had lured all the girls to his house for sexual purposes.
 Furthermore, the various facts recited in the judgement of the case as constituting
similar facts were so similar to the facts of the surrounding circumstances in the
evidence of the complainants that they can properly be described as striking. The
fact that they didn’t include the commission of the offence does not mean that
they are not logically probative in determining the guilt of the accused
Recap on uses of SFE:
1. To prove an offence where it can be shown to form part of a series of occurrences

where the accused was concerned
2. To rebut the defence of an accident, mistake or another innocent state of mind
DEFENCES
(i) Absence of connection between the accused and the offence
R vs. Smith (1914 –
1915) ALL ER 262

AMRI’S NOTES
Mrs. Smith was found drowned in the bathtub. There was no evidence to tell of how she
found her way into it and drowned. Evidence available was that a few months prior to her
death, Mr. Smith had taken out life insurance for her and named himself beneficiary. Mr.
Smith has also informed a medical practitioner that Mrs. Smith suffered from epileptic
fits. Prior evidence showed that Mr. Smith had married twice, taken out insurance in
favour of the wives and named himself the beneficiary, informed a medical practitioner
that the wife suffered from epileptic fits, after which the wives were found dead in the
bathtub. He was convicted and he appealed, arguing that there was nothing to connect
him to the murder of Mrs. Smith apart from previous acts which were similar.
The court of appeal held that the test of the relevance of similar facts evidence in cases
like this, is whether or not the extraneous (unrelated) acts are so strikingly similar to the
offence charged in terms of method of commission or surrounding circumstances, that
they identify the instant offence (one in question) as the hallmark of the particular
accused, or undermine a defence such as accident or innocent association. The court was
therefore of the opinion that the devastating degree of similarity in this case was relevant
to the circumstances of the offence charged.
(ii) Absence of intention

If it can be demonstrated that a defendant has been involved in a series of similar acts,
intention can be inferred.
Achieng’ Vs. R 1972 EA Page 37
Achieng’, a public servant, obtained some money from the office, used it for her own
purposes and failed to account for it. She was charged with theft by servant. In her
defence, she maintained that she intended to account for it in the future and did not intend
to steal. Previous evidence showed that she had done the same thing on six previous
occasions.
It was held that the evidence of the previous acts was admissible in the instant case.
Mohammed Saeed Gkraba Vs. R 1956 Vol. 23 EACA Page 51

Mohammed, a school head, was charged with the use of criminal force with intent to
outrage the modesty of two young school boys. In his defence, he maintained that it was
not intentional, but happened in the course of duty. The prosecution adduced evidence to
the effect that he had previously committed similar acts of trying to touch boys’ private
parts. He was convicted and appealed. The Court of Appeal held that evidence of similar
acts was admissible to rebut the defence of accident or mistake.
R Vs. Bond 1906 Vol.2 K.B 389

Bond was a doctor charged with using medical instruments with the intent to procure
abortion upon Miss A. He defended himself to the effect that he did not intend to do so,
but that rather, the abortion occurred in the course of examination.
The prosecution called another lady, Dr. Bond’s Ex-girlfriend, who testified that he had
used the same instruments against her with intent to procure an abortion. She further
testified that he had told her that he had done it so many times before and that it made
girls happy.

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The evidence of the previous similar acts was held to be admissible show that he had
used the instruments with intent to procure an abortion.
OTHER USES OF S.F.E

3. To identify an accused person. (1952) 2 ALL ER 657
R Vs. Straffen
The accused was charged with the murder of a young woman. The victim was found
strangled and naked by the roadside, with no evidence of sexual molestation.
Furthermore, the accused had been seen in the vicinity of the locus of the offence/crime.
Evidence showed that the accused had previously caused the death of 3 other girls by
strangulation and dumped their naked bodies by the roadside without having sexually
molesting them.
It was held that evidence of previous similar offences by the accused was admissible to
prove that the accused had committed the offence charged because he was shown to be a
person with a certain distinct propensity towards the commission of the offence. The
court was further of the opinion that one cannot distinguish abnormal propensity from
identification, and that abnormal propensity is a means of identification.
Paul Ekai Vs. R 1951 – 82 K.A.R 1

The accused was charged with the murder. His alibi was that on the night of the murder,
he was with a relative far away. Evidence showed that on the night of the murder, one of
the 3 large tin boxes, which the deceased kept in her house, had been broken into using a
crow bar from the camp workshop and money had been stolen. Evidence further
demonstrated that the intruder had escaped through the animal enclosure.
The prosecution also adduced evidence to the effect that a few months prior to the
murder, another burglary had occurred, whereby a truck was broken into using a crow bar
from the workshop, and the culprit escaped through the animal enclosure.
On apprehension, the accused was found in possession of some of the goods stolen from
on the 1st burglary, which he could not explain.
It was held that given his particular mode of operation, the inference was irresistible that
he was involved in both incidents and therefore the Murder.
3. S.12 Things said or done by conspirator in reference to common design
A conspiracy is an agreement between two or more people to commit an unlawful act, or

to do a lawful act by an unlawful means.
When two or more people are suspected of conspiracy, anything said, done or written by
one of the conspirators, in reference to the common intention, are admissible against the
co-conspirator himself and the other conspirators. This means that each conspirator is
regarded as an agent of the other.
The section strictly requires the presence of a reasonable ground to believe that the two or
more people have conspired to commit an offence. This means that there should exist
prima facie evidence to support the existence of the conspiracy. E.g. Where an accused

AMRI’S NOTES
person, and the person who shot dead the deceased were seen talking in isolation before
the shooting and avoided questions as to what they were talking about was held to be
sufficient to create a reason to believe that they might have been conspiring about
something. Only a reasonable ground of suspicion is requires because as stated in R vs.
Golkadas Kanji Karia16 EACA 116, “it is rare for the conspirators to meet together and
execute a deed setting out the details of their unlawful purpose. It is common place to say
that an agreement to conspire may be deduced from any acts which raise the presumption
of common plan.”
Even after the termination of the conspiracy, anything written, said or done will still be
relevant to prove the conspiracy. Furthermore, a person who joins a conspiracy will be
responsible for all acts, whether done before or after his participation. See Stanley
Msinga & another v. R (1951) 8 EACA 211
4. S. 13 When facts not otherwise Relevant are relevant
Under S. 13, any fact which either disproves of or contradicts a fact in issue or a relevant
fact is relevant. Similarly, any fact which renders the existence of a fact in issue or a
relevant fact highly probable or improbable is relevant.
Illustration:
The question is whether Jacob assaulted Janet in Iringa on the 28 th of July. The fact that
on that date Jacob was admitted in hospital in Dar is relevant to show that it is highly
improbable that he committed the offence.
5. S. 14: Facts tending to enable the court determine damages

All facts which will assist the court in determining the amount of damages that it should
award are admissible in evidence under this section. E.g. contributory negligence in a
tort case would mitigate the amount of damages due. Equally, in a contract case, any fact
that would show the amount of the loss suffered by the plaintiff due to the breach of
contract between her and the defendant would be relevant.
6. S. 15 Facts affecting the existence of a right or custom
Where the existence of any right or custom is in question, the following facts are
relevant:
(a) any transaction by which the right or custom was created, claimed, modified,
recognized, asserted or denied
(b) any fact inconsistent with the existence of the right or custom
(c) particular instances in which the right or custom was claimed, recognized or
exercised, or in which its exercise was disputed, asserted or departed from
 A custom may be defined as a practice that by its common adoption and long
unvarying usage has come to have the force of law. In order for a custom to be

AMRI’S NOTES
recognized under this section, it must be ancient, continuous and uniform, reasonable,
certain, peaceable, and not immoral. This may be proved by oral evidence of a person
likely to know of its existence or having special knowledge (see S. 50 of the TEA)
 A right may be defined as a power, privilege or immunity secured to a person by law.
S. 15 is divided into two parts:

(i) the first part deals with transactions
a transaction means some business or dealing, which is carried on or transacted between
two or more persons.
Illustration: if A claims that a particular piece of land is hers, a sale deed expressing that
the property had been sold to B is relevant.
(ii) the second part deals with instances (case in point, particular occasion)
For instance, a judgment of the court in which a certain custom was held to be invalid.
7. S. 18 Relevancy of existence of course of business

When there is a question whether a particular act was done, the existence of any course of
business, according to which it would naturally have been done, is a relevant fact
Illustration: The question is whether a particular letter was posted from destination A.
The facts hat it was the ordinary course of business for all letters put in a certain place to
be carried to the post, and that the particular letter was put there, are relevant.
Course of business: this means the ordinary course of trade/business, and covers both
private and public offices.
HEARSAY EVIDENCE
Hearsay evidence falls under the category or oral/parole evidence. This is defined under
the American federal Rule of Evidence 801(c) as a statement, other than one made by the
declarant, offered in evidence to prove the truth of the matter asserted.
Murphy does not directly define hearsay, but he describes the same as follows “Evidence
from any witness which consists of what another person stated (whether verbally, in
writing, or by any other method of assertion such as gesture) on any prior occasion, is
inadmissible, if its only relevant purpose is to prove that any fact so stated by that person
on that prior occasion is true. Such a statement may, however be admitted for any
relevant purpose other than proving the truth of the facts stated in it.
The general rule against hearsay is that a statement made by a person, not called as a
witness, which is offered in evidence to prove the truth of the facts contained in the
statement is hearsay and is not admissible. If the statement is however offered in
evidence to prove that it was in fact made, and not to prove the facts contained therein, it
is admissible.
In the case of Subramaniam v The DPP (1956) WLR 965
The appellant was charged and convicted of being in possession of fire arms without a
lawful excuse. In his defence, he maintained that he was acting under duress occasioned

AMRI’S NOTES
by threats uttered to him by some terrorist. The trial judge overruled him when he
attempted to state what the terrorists had told him. He was convicted and he appealed.
The appeal court held that: “evidence made of a statement to a witness by a person who is
not himself called 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 not hearsay and is admissible when it is proposed to establish by the
evidence, not the truth of the statement.
Illustrations of the general rule relating to hearsay:

The question is whether A defamed Doctor B by calling him incompetent. Witness C
may be called to testify that he heard A called B incompetent. The purpose of the witness
is not to establish the truth of the statement, i.e. that Doctor B is incompetent, but to
prove that it was made. Only A may be called as a witness to prove the truth of the facts
contained in the statement that he made.
If X says that he saw Y beat up Z with a stick on his head, that is direct evidence: - X
perceived it. If however, X says that he was told by Z that Y beat him on the head with a
stick, that could be hearsay, if tendered to the court to prove that Y did beat up Z. If
however offered merely to prove that the statement was made, that is not hearsay.
Note that these illustrations relate to the general rule, and there are exceptions to the same
S. 61 and 62 of the TEA contain provisions on oral evidence. S.62 specifically states that
oral evidence must in all cases be direct, that is to say:
(a) if it refers to a fact which could be seen, it must be the evidence of a witness who says
he saw it
(b) if it refers to a fact which could be heard, it must be the evidence of a witness who
says he heard it
(c) if it refers to a fact which could be perceived by any other sense, or in any other
manner, it must be the evidence of a witness who says he so perceived it
(d) if it refers to an opinion, or to the grounds on which that opinion is held, it must be the
evidence of the person who holds that opinion or as the case may be, who holds it on
those grounds
If such oral evidence is indirect, it becomes hearsay, and it is generally inadmissible.

Hearsay evidence is inadmissible for a number of reasons:-
(a) the evidence is not given on oath (the evidence is given by another person on behalf
of the person who perceived it)

AMRI’S NOTES
(b) The evidence cannot be tested by cross examination

(c) The evidence presupposes a better testimony
(d) The evidence is weak as it is subject to distortion.
In Njunga v R (1965) EA 773

The appellant, was apprehended by the police on the information of an informer. The
police found a simi under the driver’s seat. The appellant was charged with being armed
with the intent to commit a felony. Witnesses gave evidence in the trial court to the effect
that they had been told by a police informer that there was a plot between the appellant
and others to commit an armed robbery. The informer was not called to give evidence
and his name was not revealed. This evidence was admitted in the trial court, and the
appellant convicted. Upon appeal, it was held that:
“The knowledge which the court below had of this felonious enterprise was derived from
what a sergeant of police had told the court, that an un named uncalled, unsworn
individual had told him. Without this hearsay evidence, the court below very clearly
would have found it difficult , if not impossible, to have determined whether the appellant
has the intent to commit a felony, and if so, what felony.” The Court therefore concluded
that the evidence had been wrongly admitted and quashed the conviction.
Purpose of the witnesses statement: not to prove that the statement was made, but to
prove that the statement was true.
Exceptions to the hearsay rule

1. Statements by persons who cannot be called as witnesses (s. 34)
a. Dying declarations
b. Statements made in the ordinary course of business
c. Statements made in the discharge of professional duty
d. Statements against the interest of the maker
e. Statements of opinion on public right, custom, or matters of general interest
f. Statements relating to the existence of a relationship
g. Statements in a will or a deed , relating to family affairs
h. Admissibility of certain trade/business
2. Admissibility of certain Trade or business (S. 34A)
3. Proof by Written Statements in Criminal Proceedings 34B
4. Proof by written Statement in Civil Proceedings 34C
5. Evidence given in previous judicial proceedings S. 35
6. Statements made under special circumstances (S. 36 – 40)

AMRI’S NOTES
a. Entries in books of account

b. Entries in public records
c. Statements in maps, charts and plans
d. Statements of facts contained in laws, gazettes, etc
e. Statements as to law contained in books
1. Statements by persons who cannot be called as witnesses

In order for statements made persons who cannot be called as witnesses to be admissible,
the person must be dead, unknown, cannot be found, cannot be summoned to the court
due to diplomatic immunity or other privilege, can be summoned but refuses to
voluntarily appear in court as a witness, has become incapable of giving evidence, cannot
appear in court without unreasonable delay or expense
(a) Dying Declarations
S. 34 (a) provides that whenever the cause of death is in issue in a civil or criminal case,
any statement made by the deceased as to the cause of her death or the circumstances of
the transaction or event resulting in the death is admissible.
Some jurisdictions such as the English system require that the statement has to be made
by the deceased who is in imminent (about to happen) expectation of death, because then
they are not likely to tell lies. The TEA however provides that such statements are
admissible whether the person who made them was or was not at the time they were
made, under the expectation of death.
In order for dying declarations to be admissible in court, certain conditions have to be
met:-
(a) The statement must relate to the cause or circumstances leading to the death of the
maker and not of any other person. In Mohamed Warsama v. R (1956) 23 EACA 576, the
deceased had made a series of dying declaration, and had in them stated the cause of
death of another deceased. The court held that these were not admissible as related to the
other deceased, as a dying declaration has to relate to the cause or circumstances leading
to the death of the deceased and not any other person.
(b) The statement must be proximate (close) to the death
In Antonio Barugahara & Others v R (1957) EA 147, a witness had given evidence that
the deceased woman has told 6 weeks before her death that the 1 st accused had asked the
deceased to marry him, and give him money to pay his taxes. She had refused to yield,
and was six weeks later was found dead. The Court of appeal held that the facts alleged
were not proximately related to her death, and the circumstances were not those of the
transaction resulting in her death.
(c) The statement may be made before the cause of death has arisen or before the
deceased has any reason to anticipate being killed.
In R v. Kabateleine s/o Nchwamba (1946) 13 EACA 164, Two days before the deceased
was burned to death in her house, she had told the headman that the accused was

AMRI’S NOTES
threatening to burn her house because, as he alleged, she had cause the death of his father
by witchcraft. The Court of Appeal held that this was not a general expression indicating
fear or suspicion, but one directly related to the occasion of death and was therefore
admissible.
(d) The statement must be complete
In Waugh v. r (1950) AC 263, The deceased fell into a terminal coma while making a
dying declaration. The incomplete statement was held to be inadmissible.
In R v. Charles Daki s/o Daki (1960) EA 34, the deceased was admitted into the hospital
suffering from gunshot wounds. When asked who shot him, he said “Charles Daki has
killed me. He shot me with a gun. I saw him with a gun. He was on a motorcycle. A
friend of mine had visited me and I had gone to the garage with him…” At this point, the
doctor interrupted on the ground that the patient was unfit to continue to talking. The
deceased subsequently died. The incomplete statement was held to be inadmissible.
Relying on the decision in the Waugh case, the Court stated that “it is true that [in
Waugh’s Case] the deceased fell unconscious having begun but not completed a
sentence. But I think the principle applies equally well where, although there was
apparently no unfinished sentence, it is not established that the declarant said all he
wished or intended to say before the doctor intervened, telling the police to ‘leave him
alone.’”
(e) While as a matter or law corroboration (confirmation or support by additional
evidence) is not required, it is as a matter of practice required.
If there are circumstances which show that the deceased could not have been mistaken in
her identification, then a conviction arising from an uncorroborated dying declaration
may stand.
In R v Eligu s/o Odel and Epongu s/o Ewunyu (1943) 10 EACA 90, The deceased had
stated in a dying declaration that the two accused had attached him. In the case of Eligu
there was corroboration. In the case of Epongu, the position was as follows: he had
earlier in the day, together with Eligu, arrested the deceased, bound him, taken him some
distance, then unbound him. The court of appeal held that:
it would not be reasonable to assume that a stranger to the earlier events had
identified himself with a later attack on the deceased. Besides, there is the point
that the deceased in his identification of his assailant would be less likely to be
mistaken than if he has been suddenly set upon by persons with whom he was
unacquainted. Here, not only were the accused known to the deceased, but he had
been in their company … earlier in the same evening, this fact making the
deceased’s statement more credible...it may be said that the other evidence
pointed in the same direction as the deceased’s statement.”
 Do you agree with the court
 Do you think there was corroboration by circumstantial evidence?
The above position however seems to be the exception rather than the rule when it comes
to corroboration of dying declarations. In Pius Jasunga s/o akumu v R, (1954) 21 EACA
331, the EACA stated that:

AMRI’S NOTES
We have examined the decisions of this court on the subject of dying declarations
since 1935 and we have unable to find a single case where a conviction has been
upheld which was based upon a dying declaration without satisfactory
corroboration, unless as in Epongu’s case where there was evidence of
circumstances going to show that the deceased could not have been mistaken in
his identification of the accused… Although it is not a rule of law that in order to
support a conviction a dying declaration must be corroborated, generally
speaking, it is very unsafe to base a conviction solely on the dying declaration of
the accused.
(b) Statements made in the ordinary course of business(S. 34b)
Remember that the general rule in these situations is that the statements we are talking
about must have been made by a person who is dead, unknown, cannot be found, cannot
be summoned to the court due to diplomatic immunity or other privilege, can be
summoned but refuses to voluntarily appear in court as a witness, has become incapable
of giving evidence, cannot appear in court without unreasonable delay or expense
S. 34(b) requires the following:
 That the statement sought to be admitted must relate to a business or profession
 The person who made the statement must have had a duty to do so
 The statement must have been made during the ordinary course of business.
The statement should not have been made with a view to instituting the case in question.
Thus, where the accused was charged with having stolen certain goods which he should
have delivered to a certain firm, a statement by the firm showing a shortage in the goods
received was held to be inadmissible since it appeared that the special report was written
with a view to present prosecution (See R. v Magandazi and 4 others (1914) 2 ULR 108)
Such statements include entries in the books or records of the business,

acknowledgements of receipts monies, goods, securities or other property, or the date of a
letter or other document usually written or signed by the person who cannot be called as a
witness.
In the Commissioner of Customs v. S K Panachard, (1961) EA 303, it was held that the
interval maintained in making entries must be consistent.
(c) Statements against the interest of the maker
Statements made by persons who cannot be called as witnesses, and which are against the
pecuniary (financial) or proprietary (property) interest of the maker are admissible.
Additionally, statements which would expose the maker to criminal prosecution or to a
suit for damages are also admissible.
For instance, a statement by a landlord who was dead that there was a tenant on his land
is a statement against his proprietary interest.
In Sebastian Diaz v. R (1927) ULR 214 however, the court refused to admit a statement
made by a deceased clerk, admitting that he had falsified some entries, in a case where

AMRI’S NOTES
the accused was charged with making false entries during employment. The prosecution
intended to adduce this statement to prove the guilt of the accused.
(d) Statements giving opinion as to public right or custom or a matter of public or general
interest
In order for statements to be admissible under this section, certain criteria must be met:
 The statement must be an opinion of a person who cannot be called as a witness
because of any of the reasons stated in S. 34
 The statement must have been made before the subject matter of the controversy was
contemplated
 The maker of the statement should have had the means of the knowledge of the
existence of the custom or right in question
 Where the statement relates to a right, it must be a public as opposed to a private right.
E.g. the statement by a deceased headman to the effect that a certain road is a public road
would be admissible under this section.
(e) Statements relating to the existence of a relationship
Pre conditions:
 The statement must be made by a person who cannot be called as a witness
 The statement must relate to the existence of a relationship by blood, marriage or
adoption between certain persons
 The person making the statement must have had special means of knowledge as to the
existence of the relationship.
 The statement should have been made before the controversy arose
(f) Statements relating to family affairs

Statements by persons who cannot be called as witnesses are admissible when they relate
to any relationship by blood, marriage or adoption between deceased persons, when such
statements are made in any will or deed relating to the affairs of the family of the
deceased or in any pedigree (ancestry/family tree),or on a tombstone, family portrait or
other thing on which such statements are made. Such statements must have been made
before the dispute in question arose.
Differences between S. 34 (e) and (f)
 Under (e), the existence of a relationship of any living or dead person can be proved
whereas under (f), only a relationship between deceased persons can be proved.
 Under (e) the maker of the statement should have special means of knowledge as to
the existence of the relationship whereas under (f) there is no such requirement
 Statements under (e) may be written or verbal, but statements under (f) must be
written

AMRI’S NOTES
 Clause (e) relates to declarations by the person who cannot be found while clause (f)
relates to evidence of things such as wills, tombstones, etc.
(g) Statements in documents relating to certain specific transactions
Statements by persons who cannot be called as witnesses, which are contained in any
deed, will or other document, which relate to any transaction by which a right or custom
in question was created, claimed, modified, recognized, asserted or denied are admissible.
This section applies only to written statements.
E.g. Where the question is whether the deceased gave A a certain gift, a statement in the
will of the deceased to the effect that he did so is admissible.
(h) Statements made by several persons and expressing feelings
Statements by persons who cannot be called as witnesses, which were made by a number
of persons, expressing feelings or impressions on their part relevant to the matter in
question are admissible. Such statements are proved by evidence of witnesses to the
expression of feelings by the several persons.
E.g. A sues B for a libel expressed in a painted caricature (a representation, especially

pictorial or literary, in which the subject's distinctive features or peculiarities are
deliberately exaggerated to produce a comic or grotesque effect) exposed in a shop
window. The issue is the similarity of the caricature and whether it is libelous. The
remarks of a crowd of spectators on these points may be proved.
2. Admissibility of Certain Trade or Business

S. 34A applies to criminal cases only, where the maker of certain statements cannot be
called as a witness.
The statement to be admitted herein must be written
The statements must have been made either as a
 Memorandum or record of the act/transaction/ occurrence/event
 A record relating to any trade or business, and made in the regular course of business,
where is it the practice to record such a transaction/occurrence/event when it takes
place or within a reasonable time after.
3. Proof of written statements in criminal proceedings
S 34B applies to admissibility of affidavits and other similar declarations in criminal
proceedings. Affidavits are admissible under that section if they fulfill the following
conditions:
 The maker of the statements is not called as a witness, is dead, unfit to attend court by
reason of mental or physical condition, is over seas, it is not reasonably practicable to
call him as a witness, he cannot be found, he is not identifiable or by some operation
of the law he cannot attend.
 The statement is, or purports to be signed by the person who made it

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 The statement contains a declaration to the effect that it is true to the best of the
maker’s knowledge and belief, and that the statement was made knowing that if it
were tendered in evidence, the maker would be liable to prosecution for perjury if he
willfully lied.
 Copies of the statement are served by the party tendering it to all the other parties
before the proceedings
 No party objects to its being tendered in evidence within 10 days
 If the statement is made by a person who cannot read it, it is read to him before he
signs it and the person who read it so declares.
Notwithstanding the above provisions, the party tendering the statements may call the
person to give evidence, and the court may also do so on its own motion, if the person
can be found.
Before the statement is admitted as evidence, it must be read aloud in court unless the
court otherwise directs, and the court may also direct that an account be given of portions
not read aloud.
Any documents or objects referred to in the statement as exhibits and identifies shall be
treated as an exhibit and identified in court.
There is however a proviso that such a statement cannot corroborate evidence given by
the maker of the statement.
4. Proof of written statements in civil proceedings
S. 34 C admits written evidence instead of the attendance of the maker of the statement,
especially where the maker is dead, cannot be found, is unfit to attend court by reason of
mental or physical condition, is overseas, it is not reasonably practicable to secure his
attendance, or all efforts to find him have failed. It must be proved that such a statement
would be admissible had the maker been available to give evidence in court.
Essentials
1. The maker must have had personal knowledge of the matter dealt with by the
statement
2. if the document forms part of a continuous record, and the subject matter in the
document was not within the maker’s knowledge, it must be shown that the male had
a duty to make such a record and that he was supplied with information by a person
who had/or is reasonably believed to have had personal knowledge of the matter
3. Statement must have been made before the subject matter in dispute arose
4. The original document need not be tendered; a certified copy would suffice
5. A statement in a document shall be regarded as having been made by a certain
person if:
i. She made/prepared the whole document
ii. She wrote, made or reproduced by her own hand some material part of the
document

AMRI’S NOTES
iii. She initiated some material part of the document, or otherwise made a recognition in
writing that she was responsible for the document/part of it
6. The court reserves the right to determine the admissibility of any document under
this section (considers accuracy, authenticity). The adverse party has the duty of
raising doubts as to the authenticity of the document
7. The court has the discretion to determine whether or not a person if fit to attend trial
5. Evidence given in previous judicial proceedings S. 35

Evidence given by a witness in previous judicial proceeding is admissible in subsequent
proceedings, or at a later stage of the same proceeding (e.g. appeal) where the witness is
dead, cannot be found, is incapable of giving evidence, is kept out of the way by the
adverse party, or his presence cannot be obtained without unreasonable delay/expense. In
Ndola v. R (1926) (10) KLR 11, it was held that the phrase cannot be found referred to
the time when the witness was sought to attend court and not to the state of affairs at an
earlier period
Such evidence is only admissible in a subsequent proceeding if the following conditions

are met:
a. the proceeding is between the same parties or their representatives in interest.
E.g. A accuses B of embezzlement. B is acquitted, and A thereby institutes
malicious prosecution proceedings. The parties in the subsequent case will be
the same.
b. The adverse party in the previous proceeding had the right and opportunity to x-
examine the witness
c. The questions in issue were substantially the same in the first as in the second
proceeding
The phrase “Evidence given in judicial proceeding” denotes that it must be proved that
the witness was duly sworn in some judicial proceeding; the party against whom the
evidence was offered was legally bound to submit to the authority to whom the evidence
was offered; the adverse party had a right of cross examination.
6. Statements made under special circumstances (S. 36 – 40)

Entries in books of account S. 36
Read Act
-Must be books of account regularly kept
-such evidence requires corroboration
Entries in public records
Read Act

AMRI’S NOTES
What is a public record? Manji Suleimani Ladha v. R.G. Patel (1960) EA 38: The
court laid down the following criteria, that a public record must be intended for the
use of the public or be available for public inspection; and must be intended to be a
permanent record; must be a record of fact not opinion.
The phrase “any other person in performance of a duty especially enjoined by the law
of the country” was interpreted in the case of Dhanji Hirji v. R (1966) EA 246,
whereby the court observed that “any other person means any person, not a public
servant, who finds himself under a specific duty to maintain or make entries in any
record of a public or official nature…we do not think that it includes members of the
general public completing forms necessary for their individual purposes, whether or
not those forms will eventually form part of the archives of any government
department”
Statements in maps, charts and plans
Read Act
Statements of facts contained in laws, gazettes, etc
Read Act
Statements as to law contained in books
Read Act
Such statements on foreign law must be contained in books printed or published
under the authority of the government concerned
This provides the means by which foreign law can be proved. The Court in Hakam v.
Mohamed, (1955) 28 KLR 91, made the decision that bodies of law such as Islamic and
Hindu law are not foreign law.
ADMISSIONS AND CONFESSIONS
Admissions are statements of fact, which waive or dispense with the production of
evidence by conceding that the fact asserted by the opponent is true. S. 19 of the TEA
defines an admission as “a statement, oral or documentary, which suggests any inference
as to a fact in issue or a relevant fact. Admissions are therefore against the interest of the
maker. They may be formal or informal.
Formal: made in the pleading, e.g. in a breach of contracts, a party may admit having
breached the contract, but maybe say it was due to fraud.
Informal: made during the proceedings, e.g. a plea of guilty.
A confession on the other hand is an admission made at any time by a person charged
with a crime, stating or suggesting the inference that he committed the crime/a statement

AMRI’S NOTES
made by an accused admitting his guilt. In Swami v. King emperor (1939)ALL ER 396,
the court defined a confessions as “a statement, which admits substantially all the facts
constituting the offence.
The difference between a confession and an admission therefore is that admissions cover
all statements, whether in civil or criminal cases, but confessions only relate to criminal
cases.
ADMISSIONS GENERALLY
The following persons can make admissions (S. 20)

1. Parties to a suit or proceedings
2. Agents to the parties – these a re people employed to act on behalf of others
3. Persons having a pecuniary or proprietary interest in the matter
4. Persons representing the parties e.g. trustee, administrator of estate
5. Predecessor in interest e.g. where there is a land dispute between A, who bought
the piece of land from C, and B, the neighbour, a statements made by C, who was
the original owner of the land, explaining the boundaries of the land he once held,
disclaiming the piece of land in dispute, is an admission against A.
Proof of admissions.
S. 23 provides that admissions are relevant and may be proved against the person who
makes them or his representative in interest, but cannot be proved on behalf of the person
who makes them or his representative in interest.
E.g. A is accused of receiving goods knowing them to be stolen. A cannot prove a
statement made by himself to the fact that he did not know that the goods were stolen, but
B can prove a statement made by A to the effect that he suspected that the good were
stolen.
Exceptions to the general rule in S. 23:
Admissions can be proved on behalf of the maker of or his representative in interest if:
 The statement is of such a nature that it could be admissible under S. 34 if the person
making it was dead. In other words, if the statements that would be admissible under

AMRI’S NOTES
S. 34 if the person was dead, then it will be admissible on behalf of the maker. E.g. A
is accused of casting away a ship by taking it off course. A may produce a
memorandum kept by him in the ordinary course of business, indicating that at the
material time, the ship was on course.
 Admissions may also be proved on behalf of the maker if they reflected the state of
mind. E.g. A is accused of having counterfeit money. He may proof that he asked a
skilled person to examine the money, and that the person told him that it was genuine.
This would show that his mind was innocent.
Other Issues on Admissions:

Oral admissions as to contents of a document are not relevant unless the one tending it
shows that he is entitled to produce secondary evidence. Adverse party proves
admissions. So where a party has made an admission as to the contents of a document,
the adverse party must show that he is entitled to prove secondary evidence of the
contents of the documents under S. 67
Admission made without prejudice: The words “without prejudice” in a letter or a
document means that the admission in the letter/doc is not binding. However, this rule
only applies if the persons are in dispute or negotiating or for purposes of negotiation.
Admission, except formal admissions, are not conclusive but may act as estoppel. The
basic rule of estoppel is that if a person, by a representation or conduct, induces another
to change his position on the faith of it, then he cannot afterwards deny the truth of the
representation. This is because further evidence may be adduced to contradict the
admission.
CONFESSION
Definition
Phipson: A type of admission in relation to crime
Wigmore: An acknowledgement of guilt in express words by the accused
Swami v. King emperor: No statement that contains self exculpatory (incriminating)
matter can amount to a confession, if the exculpatory statement is of some fact, which if
true would negative the offence alleged to be confessed. Moreover, a confession must
admit in terms the offence or at any rate substantially all the facts which constitute the

AMRI’S NOTES
offence. The admission of a gravely incriminating fact, even a conclusively incriminating

fact is not itself a confession, e.g., an admission that the accused is the owner of and was
in recent possession of the knife or revolver which caused a death.
R v. Bampamiyki (1957) EA 473
A statement should be regarded as a confession only when it contains ingredients of the
crime with which the accused person is charged, so that the accused person could be
properly convicted on his own plea
R v. Makrch (1971) HCD 74 (High Court of Tz)
We think that the test is whether the statement is such that in the absence of any
explanation or qualification and in particular circumstances, it points clearly to the guilt
of the maker. Thus, statements “I killed him” or “I took the money” unaccompanied by
any exculpatory statements and uttered in relation to a person who has died of unnatural
causes or missing funds as the case may be are in our view indicative of guilt and
therefore a confession.
S. 3 TEA
(a) words or conduct, or a combination of both, from which, whether taken alone or in
conjunction with the other facts proved, an inference may reasonably be drawn that the
person who said the words or did the act(s) has committed an offence or
(b)) a statement which admits that the person making the statement has committed an
offence
(c) A statement containing an admission of all the ingredients of the offence with which
the maker is charged
(d) A statement containing affirmative declaration in which incriminating facts are
admitted from which, when taken alone or in conjunction with the other facts proved, an
inference may reasonably be drawn that the person making the statement has committed
an offence
RULES OF CONFESSIONS
 A confession made to a police officer is admissible, provided the prosecution proves
that it was voluntarily made (S. 27).
A police officer means any member of the police force of or above the rank of corporal
(s. 3). In the 1967 case of R v. Mwanda and others, the High Court of Kenya held that the

AMRI’S NOTES
rank of the police officer is a ready measure of intelligence, and thus it was relevant
where confessions are concerned.
 A confession of an offence other than the one with which the accused is charged is
deemed to be a confession for the purpose of that offence. E.g. A is accused of murder
but he admits to manslaughter. The confession to manslaughter will be admissible to
prove manslaughter. It will however not be admissible to prove murder. In
Bampamiyki s/o Buhile v. R (1957) EA 473, the accused had been charged with
murder, whereby a house had been burnt down and two people died in the fire. The
accused made a confession to a police officer that he had burnt the house. The Court
of Appeal held that the confession was inadmissible in the murder charge.
 Statements caused by inducement.
S.29 A confession shall be held to have been made involuntarily if the court believes that
it was induced by threat, promise or other prejudice held out by the police officer to
whom it was made, or any member of the police force, or any other person in authority.
The inducement must however have been of such a nature as likely to cause an untrue
admission of guilt, otherwise the confession will be admissible.
The test here as to whether the statement was voluntary is whether the accused is placed
in such a situation or position that he would rather give an untrue rather than a true
statement.
In the Case of Njuguna S/o Kimani v. R (1954) 21 EACA 3111, the EACA stated that
where an accused is promised pardon as an inducement for a confession of guilt, the
effect of the inducement is to make the freedom which will accompany the false
confession more attractive at the moment than to remain restrained if he were to speak
the truth.” The Court also emphasized that the onus is upon the prosecution to prove that
a confession had been voluntarily made and not obtained by improper questioning.
Threat, Promise or prejudice: In the Case of Commissioner of Customs and Excise v.
Harz (1967) 1 ALL ER 177, In the course of investigating the failure by a company to
pay taxes, customs officers subjected the co. officials to interrogation lasting 3 hours. The
co. officials made incriminating statements during the interrogation. The statute
empowering the interrogation provided that failure to answer questions asked could lead
to prosecution. The co. officials maintained in court that they only answered the

AMRI’S NOTES
questions because of this provision. Harz was subsequently charged with conspiracy to
cheat and defraud customs, and evidence of the admissions made at the interrogation was
tendered. It was held that the admission was inadmissible because it was made under the
threat of prosecution.
A moral or spiritual exhortation will not vitiate a confession. In the case of R v. Wilde
(1835) 1 Mead. Criminal Cases 45, the following statement was made to Wilde: “I hope
you tell me the truth in the presence of the almighty”, after which he made a confession.
The confession was held not to have been made under a threat. In R v Stantan, the
statement made to the accused was “be a good girl and tell me the truth”. It was held that
moral exaltation could not vitiate a confession.
Where an inducement has been made to an accused person, and a confession is made
after the impression caused by the inducement has in the opinion of the court been fully
removed, the confession will be accepted by the court. (S. 30) (Test: Reasonable person)
 Confession made under a promise of secrecy etc
S.32 provides that a confession otherwise relevant does not become irrelevant merely
because it was made under a promise of secrecy or in consequence of a deception
practiced on the accused person for the purpose of obtaining it, or when he was drunk, or
because it was made in answer to questions he need not have answered, or because he
was not warned that he was not bound to make such a confession and that the evidence of
it might not be used against him.
In Deokinan v R (1969) 1 AC 20, The police planted a friend of the accused in the same
cell with the accused, to whom the accused confessed the crime. The friend then
conveyed this to the police. The court held that this confession was admissible as it was
not made after an inducement by a person in authority. In Naginda s/o Batungwa v R
(1959 EA, the Court however held that nothing in the section above negated thje
discretion of the judge to refuse to admit a statement when he thought that it was not
voluntary.
 Confession made without a caution being administered
S.32 talks of a confession not becoming irrelevant merely because a caution was not
administered “because he was not warned that he was not bound to make such a
confession and that the evidence of it might not be used against him”. This section

AMRI’S NOTES
provides an exception to the rule of practice that a caution has to be administered before a
police officer question the accused. A caution in effect informs the accused of the
consequences of his statement. The basis of this is the Judges Rules. These rules of
practice are addressed to police officers and are aimed at ensuring procedural fairness in
taking statements from accused persons. They however do not have the force of law but
have been declared to be a procedural requirement (See for instance, Balbi Sain Joshi v.
R (1951) 18 EACA 228), Anyangu and Others v R, (1968) EA 239, and Paul Ekai v. R.
The rules
1. when a police officer is trying to discover the author of a crime, there is no objection
to his putting questions in respect thereof to any person whether they are suspected of
having committed the crime or not, if he thinks useful information can be obtained
2. Whenever a police officer has made up his mind to charge a person with a crime, he
should first caution the person before asking any further questions
3. Persons in custody should not be questioned without the usual caution being
administered
4. If the prisoner wishes to volunteer any statement, the usual caution has to be
administered and it desirable that the last two words of the caution are omitted. The
caution should end with “be given in evidence”
5. the caution to be administered is as follows:
“do you wish to say anything in answer to the charge? You are not obliged to say
anything unless you wish to do so but whatever you say will be taken down and may
be given in evidence against you” (omit against you)
6. A statement made by a prisoner before there is time to caution him is not rendered
inadmissible in evidence merely because no caution has been given. But in such a
case, he should be cautioned as soon as possible.
7. A prisoner making a voluntary statement must not be cross examined. No question
should be put to such a person about the statement except for removing ambiguity in
what he has said.
8. When two or more persons are charged with the same offence, and their statements
are taken separately, the police should not read these statements to the other person
charged, but these people should be given a copy of the statements.

AMRI’S NOTES
(intonation/emphasis). Should the other accused want to answer to another’s

statement, he should do so in writing and should be cautioned in doing so.
9. Any statement made in accordance with the above rules should whenever possible be
taken down in writing and signed by the person making it, after its read to him and
the corrections he wishes to be made are made. The statement must be taken down in
the national language, but where the accused does not understand the national
language, it must be interpreted to him by a person who knows his vernacular
language.
 Repudiated Retracted confessions
An accused person may repudiate or retract a confession that he had earlier made. In
Tuwamoi v Uganda (1967) EA 67, the court defined the terms repudiate and retract. A
statement is repudiated where the maker avers that he never made it, while a statement is
retracted where the maker admits that he made the statement, but now seeks to take it
back on the ground that he was forced/induced to make it, and it was therefore not
voluntary. In Tuwamoi v. Uganda, the court stated that it is dangerous to rely on a
repudiated or retracted confession, unless the court after considering the facts of the case
arrives at a conclusion that the confession is true.
How does the court arrive at a conclusion that the confession is true? By:

AMRI’S NOTES

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AMRI’S NOTES

I. INTRODUCTION TO THE LAW OF EVIDENCE

“NO SUCCESS WITHOUT SACRIFICE” 1

“NO SUCCESS WITHOUT SACRIFICE” 2

“NO SUCCESS WITHOUT SACRIFICE” 3

committed adultery, and of the existence of the time of an adulterous

“NO SUCCESS WITHOUT SACRIFICE” 4

-Hearsay evidence is inadmissible except when it falls under exceptions

“NO SUCCESS WITHOUT SACRIFICE” 5

RELEVANCY AND ADMISSIBILITY ss. 7 - 18

Admissibility is a matter of law, to be determined by the Court. All evidence that is

“NO SUCCESS WITHOUT SACRIFICE” 6

Categories of Relevant Facts ss. 8 –18

1. Facts falling under the doctrine of Res Gestae:

2. Similar facts Evidence

Furthermore, evidence of the following is admissible under certain circumstances:

1. THE DOCTRINE OF RES GESTAE

“NO SUCCESS WITHOUT SACRIFICE” 7

“NO SUCCESS WITHOUT SACRIFICE” 8

“NO SUCCESS WITHOUT SACRIFICE” 9

(b) The fact in issue is whether Adam murdered Andrew.

(c) the fact in issue is whether Jane poisoned John.

“Which afforded an opportunity”

“NO SUCCESS WITHOUT SACRIFICE” 10

Preparation – illustration (a)

(ii) The previous/subsequent conduct of any party to any proceedings/suit or her

(iii) The previous/subsequent conduct of a victim of an offence (complainant), which

“NO SUCCESS WITHOUT SACRIFICE” 11

(ii) Facts which support or rebut (refute, deny) an inference (presumption,

“NO SUCCESS WITHOUT SACRIFICE” 12

2. SIMILAR FACTS EVIDENCE

Provided for in S.16 and 17 of the Evidence act.

Lord Chancellor Herschell:

“NO SUCCESS WITHOUT SACRIFICE” 13

Harris Vs. The Director of Public Prosecutions (1952) AC Page 694

(a) DPP vs. Boardman 1975 AC 421

(b) R vs. Scarrot 1978 1 (AE) 672

“NO SUCCESS WITHOUT SACRIFICE” 14

It was held on appeal that:

(c) R vs. Barrington (1981) 1 AE 1132

Recap on uses of SFE:

1. To prove an offence where it can be shown to form part of a series of occurrences

2. To rebut the defence of an accident, mistake or another innocent state of mind

“NO SUCCESS WITHOUT SACRIFICE” 15

(ii) Absence of intention

Mohammed Saeed Gkraba Vs. R 1956 Vol. 23 EACA Page 51

R Vs. Bond 1906 Vol.2 K.B 389

“NO SUCCESS WITHOUT SACRIFICE” 16

OTHER USES OF S.F.E

Paul Ekai Vs. R 1951 – 82 K.A.R 1

3. S.12 Things said or done by conspirator in reference to common design

A conspiracy is an agreement between two or more people to commit an unlawful act, or

“NO SUCCESS WITHOUT SACRIFICE” 17

4. S. 13 When facts not otherwise Relevant are relevant

5. S. 14: Facts tending to enable the court determine damages

6. S. 15 Facts affecting the existence of a right or custom

“NO SUCCESS WITHOUT SACRIFICE” 18