ADMISSIBILITY OF HEARSAY EVIDENCE AND RULE AGAINST HEARSAY

 

Hearsay refers to testimony given in court by a person other than the one who perceived it. As a general rule hearsay is inadmissible.

And this draws from section 63 of the Evidence Act, which explicitly provides that oral evidence must be direct. Oral evidence must be direct.

 

The rule against hearsay is stated as follows:”A statement made by a person not called as a witness which is offered in evidence to prove the truth of the fact contained in the statement is hearsay and it is not admissible. If however the statement is offered in evidence, not to prove the truth of the facts contained in the statement but only to prove that the statement was in fact made it is not hearsay and it is admissible”- Justice De Silva

 

So essentially then what determines whether evidence is hearsay or not is going to be pegged around the purpose for which the statement is given.

 

Read the case of Subramanium v Public Prosecutor (1956) WLR 965. And the facts of this case were as follows: The appellant was charged and convicted of being in possession of firearms without lawful excuse. In his defence, he asserted that he was acting under duress in consequence or a result of threats uttered to him by Malayan terrorists. When he attempted to state the contents of the threats, he was overruled by the judge. He appealed against conviction arguing that the judge should actually have listened to what the import of the threat was. And of course the judge would have argued that if he was allowed to say what the terrorists had told him that would be hearsay. The court of appeal held that the conviction had to be quashed because what the terrorists told the appellant should have been admitted as original or direct evidence. It would have shed light on subsequent actions of the appellant.

 

what is hearsay as in the case of Myers v DPP 1964 2 All ER 881.

The appellant in this case was charged and convicted of receiving a stolen motor vehicle. He was in the business of buying wrecked motor vehicles for repair and resale. The chief prosecution witness was the person in charge of the records department of the relevant motor vehicle factory. He testified that every time that a car was manufactured a workman would note down the engine number and the chassis number of the car amongst other details and these would be marked on some card. He also testified that the cylinder head number would be indelibly struck on the cylinder head block so as to be inerasable. The card would then be microfilmed and stored. At the trial the microfilms were produced on oath by the witness and schedules were prepared from this microfilm. The schedules showed that the cylinder block numbers of the car in question belonged to the car allegedly stolen. The appellant was convicted on the basis of this evidence. The court of appeal affirmed the conviction and the appellant appealed to the House of Lords. The House of Lords held that the trial court and the court of appeal improperly admitted hearsay evidence in the form of the microfilm and Lord Reid at page 884 stated: “The witness would only say that a record made by someone else showed that if the record was correctly made a car had left the workshop bearing three particular numbers. He could not prove that the record was correct or the numbers which it contained were in fact the numbers on the car when it was made.”

 

Lord Reid ends his statement by saying: ”This is a highly technical point but the law regarding hearsay evidence is technical and I would say absurdly technical

The other case that it would be a good thing to look at just to illustrate how hearsay presents itself, is the case of Patel v Comptroller of Customs [1965] 3 All ER 593. The appellant here imported from Singapore into Fiji some coriander seeds shipped in bags. He correctly engrossed (filled) the customs import entry form and on investigation at arrival five bags of what he had imported were found to be contained in within another outer bag. The outer bag of these five bags was marked with the appellant’s trade name but it had marked on it “Produce of Morocco”. In the important entry form the appellant had filled that the coriander was a product of India. So in respect of the five bags that had “Produce of Morocco”, the appellant was charged and convicted in making a false declaration in a customs import form, on a customs import entry. And we are saying that he had stated that the seed originated from India when in fact it originated from Morocco.

 

On appeal, it was held that the evidence of the writing on the bag was inadmissible. It was hearsay. And this was because the court could not ascertain that in essence the coriander seed had actually come from morocco even though the bags were marked “Produce of Morocco”. There were actually saying nobody knew who and when those markings on the bags, Produce of Morocco, were made. And essentially then nobody could speak to them testifying to the fact that the particular coriander seed had originated from Morocco. So they could not be the basis of conviction for making a false entry because the person who wrote them could not be called to vouch for the truth.

 

The other case that would illustrate the same point is Junga v R (1952) AC 480 (PC). The accused was charged and convicted with the offence of being armed with the intent to commit a felony. The police witness gave evidence at the trial, saying that they had been told by a police informer of the alleged attempted offence. The informer was not called to give evidence and his identify was not revealed. The accused was convicted. On appeal it was held that the trial magistrate had before him hearsay evidence of a very damaging kind. Without the hearsay evidence the court below could not have found the necessary intent to commit a felony and that being the case the Court of Appeal allowed the appeal against conviction.

Another case is the case of Tenywa v Uganda (1967) EA 102(U). The accused was accused of having stolen a bicycle. The bicycle was seized by police officers acting on this information. On examination the bicycle was found to have a forged number plate. The accused was convicted of the offence but appealed and on appeal it was held that the police report from Kampala suggesting that the original number on the bicycle was altered was hearsay. It should not have been admitted. Because essentially there was nobody to say this was the number.But just to say that it has been changed, even saying that what has been found is what was. Because essentially the person that marked the number on the bicycle was not called to give evidence.The learned trial magistrate was wrong in law to have admitted in evidence the report alleged to have been obtained from Kampala, which suggested that the original number of the (stolen) bicycle had been altered. That piece of evidence was hearsay and should not have been admitted… unless the expert who had examined the bicycle had testified before the court and been cross-examined on the point as to how he arrived at his conclusion.

 

Inthe case ofMagoti s/o Matofali v R (1953) EACA 232. “A plan of the locus … was made and produced in evidence by a police corporal. Various points on the plan are marked with letters and it bears a legend showing what these points represent… as to what each point represented he merely said ‘I got the information from Antonia, (P.W. 2), as to positions and ownership.’ ‘This, of course, was merely hearsay and his evidence should have been supported by the evidence of the witness Antonia to the effect that she had, subsequent to the event, pointed out to the corporal the places where the various incidents, to which she had testified, had taken place.”

 

In R v Gutasi s/o Wamagale (1936) 14 EACA 232 “We note that the statement made by the appellant (Ex.P.1) to Mr. Harwich, Superintendent of Police, was admitted, although the two interpreters who had carried out a double interpretation were not called as witnesses. Without their evidence this statement was strictly inadmissible since Mr. Harwich could only speak to have taken down what he was told by the second interpreter.”

In Waugh v R (1950) AC 203 (PC)

  1. There are exceptions to the hearsay rule and actually the exceptions are many more than the rule itself:The first one would be admissions, formal and informal admissions. And these are covered at sections 17-24
  2. confessions are another exception to the hearsay rule covered at sections 25-52
  3. statements made by persons who cannot be called as witnesses are an exception to the hearsay rule. And these are laid out at section 33 of the Evidence Act.
  4. Evidence given in previous judicial proceedings is also an exception to the hearsay rule. And that is covered at section 34 of the Evidence Act.
  5. Statements made under special circumstances are also an exception to the hearsay rule. And a number of these are laid out in from section 37 through to 41.
  6. Statements in documents produced in civil proceedings are also an exception to the hearsay rule. Section 35 and 36
  7. Res Gestae is also an exception to the hearsay rule.
  8. Affidavit statements especially where they are based on information are also an exception to the hearsay rule.
  9. Statements taken from sick persons who are about to die are also an exception to the hearsay rule. And these are hazards (?) under the Criminal Procedure Code.
  10. And also evidence by certificate covered at sections 77 and 78.

Statements by persons who cannot be called as witnesses

Section 33 lays out what those statements might be. It actually has 8 examples of such statements and these are all, in their own right, exceptions to the hearsay rule. And therefore I could not agree more with Lord Reid that the rule against hearsay is technical and absurdly technical.The opening paragraph at section 33 gives the context within which those exceptions covered at that section apply:

 

“Statements, written or oral, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases-“

Under section 33 (a) a dying declaration or whatever else, that it is going to be used in evidence. What is detailed at section 33 introduction will have to apply.So essentially the statement will be admissible if the person make them is dead, cannot be found, has become incapable of giving evidence, their attendance cannot be procured. Or even if it can be procured that would actually occasion

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expense and delay which in the view of the court is unreasonable. If those circumstances apply then (a), (b), through to eight would be admitted.

 

the authority for this supposition is the case R v Ndolo (1926) 10 KLR 11. The court considered the meaning of “cannot be found” in connection with S. 33 India Evidence Act and Section 34 of Kenya Evidence Act where the language is identical. Here the witness left his place of employment and was not served with a summons for the date of the trial. The trial was adjourned and assistance from the Registration Department was of no avail, as his movements could not be traced. It was contended that his deposition should be read. The defence argued that has the prosecution taken reasonable steps to discover his whereabouts in preparation for the first date of hearing he would have been available. The court held that the words “cannot be found” refer to the time when the witness is sought to attend the trial, and do not refer to the state of affairs at some earlier period. There was no question as to

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whether the search had been a diligent one, and the words appear to imply that such a diligent search should be required before the condition is held to have been fulfilled.

 

And also the case of Thornhill v Thornhill (1965) EA 268 (CA), would be authority for the proposition that the fact of not being found.What is an unreasonable delay, or unreasonable expense is a matter within the discretion of the court, dependent upon the circumstances of a particular case?

In this case “the learned trial judge also stated in his judgment that the cost and inconvenience of bringing a witness from the United Kingdom would not be great in these days of rapid and inexpensive air travel. With great respect, I disagree that air travel in these days is inexpensive, although I agree that it is rapid. But the question seems to be this – is it justifiable legally to put the petitioner to the expense of bringing a witness from the United Kingdom to testify about a fact which is not denied and in respect of whose evidence the court has a discretion to accept on affidavit, particularly as the petition is not defended and no application was made to have the witness orally examined?”

 

Having satisfied those introductory matters, the first category of statements made by persons who cannot be called as witnesses, are dying declarations. Section 33(a) states:

“when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question and such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question;”

 

So when the cause of death of a person is in issue and this could be in either civil or criminal proceedings, the statement made by such a person which deals with the circumstances of the cause of the death is going to be relevant. And the case to look at here is the case of Terikabi v Uganda (1975) EA 60. The deceased in this case gave or made a statement giving the cause of his death but no evidence of the circumstances relating to the death. And of course the question was: would this be admissible? Because essentially people are looking at it as being that he has to give both cause and circumstances. So this case was testing whether if a statement gave only cause, would it be admissible? If it gave only circumstances but no cause, would it be admissible? And the court here held that the statement was admissible, that it was not necessary that the statement refer to both the cause and circumstances. Mention of either cause or circumstances was sufficient.

 

 

Look at the case of Swami V King-Emperor (1939) 1 All ER 396 (PC). In this case the court considered the admissibility of evidence by a widow that the deceased had told her that he was going to a particular place on the invitation of the appellant’s wife and that the appellant’s wife had asked the deceased to go and receive payment of his dues at that place. So the court was considering whether evidence of a statement by a widow that the deceased had told her he was going to a particular place on the invitation of the appellant’s wife to pick up payment of his dues. And this statement was held to be admissible even though it was made before the cause of death had arisen. So the deceased here was not in imminent expectation of death. But they had made a statement that shed light into the circumstances that led to the death that he was going to pick up his due.

 

Look at the case of Kaluma v R (1968)EAR 349. In this case, three appellants were convicted of the murder of two women in Kenya. The three appellants happened to be wanted by the Uganda police and the two women they were accused of having murdered were part of a search party which had been sent to Kenya to find and arrest the appellants. Evidence was admitted at the trial that one of the two women had made inquiries about the appellant’s whereabouts and this had been reported to the appellants. This evidence was admitted on the grounds that it was relevant as to the motive or reason for the murder. The appellants were convicted and they appealed challenging the admission of the evidence about the inquiries and the court held that evidence about the inquiries was admissible under section 33 of the Kenya Evidence Act as a statement made by a person who is dead as to the circumstances of the transaction, which resulted in the death. So it was not in the category that would be hearsay and inadmissible. It was an exception to the hearsay rule. So the person was dead and under section 33 (a) a statement made by a person who is dead on the circumstances of their death would be admissible as an exception to the hearsay rule.

So essentially then what would be the requirement under section 33 (a) for admission of a statement as a dying declaration:

 

The authority for that preposition is the case of Mohamed Warsama v R.(1956) 23 EACA 576. In this case the deceased had made a series of dying declarations which were precise and detailed and if true conclusive. He had in his declaration also stated the cause of death of another person and the question was whether that part of the dying declaration that identified another person was admissible. And the court held, no, it was not admissible. The question was whether that part of the dying declaration that pointed to the cause of death of another person was admissible. Remember we said that the deceased made many dying declarations of a precise and detailed and if true conclusive. But in those dying declarations did not just talk about the cause of his own death. He actually talked about the cause of death of another person. And the court was enquiring as to whether that part of the statement that talked about the cause of death of the other person was admissible. And the court held, no. the dying declaration has to related to the cause and or circumstances of the death of the maker, not of other people. So they would admit what was pertaining to his death, not to the death of other people.

 

The second rule is that the statement must be proximate to the death. The authority here is Antonio v Barugahare v R (1957) EA 149 (CA). The witness here had given evidence that the deceased woman had told her six weeks earlier before she died that the accused had asked her to marry him. So the deceased had confided to the witness, six weeks prior to her death, that the accused had asked her to marry him. The deceased had also asked the deceased according to the report to lend him money to pay his tax. She had refused to yield to either demand. And she was found dead six weeks later. And the question was whether what she had confided to the witness was a dying declaration. Was the information that he had passed to the witness, that she had been asked to marry the accused and lend him money a dying declaration. The court held, not, it was not a dying declaration because the facts alleged were not proximate or related to the death and the circumstances were not those of the transaction resulting in the death. Compare that holding to the holding of the case R v Kabateleine s/o Nchwaba (1946) 13 EACA 164. In this case, a complaint made by a deceased person to her headman two days before the house in which she was sleeping was burned, was held directly related to the occasion of the deceased’s death and was a circumstance that resulted in her relevant.


The same point is made in the case of R V. Charles Daki s/o Daki (1960) EAR 34. The deceased was in this case admitted into hospital suffering from gun shot wounds. When he was 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 went to the garage with him.” At this point the doctor intervened and the deceased died subsequently. Daki was charged and convicted on the basis of the statement, despite his counsel’s objection. On appeal the statement was held inadmissible on the grounds that the deceased might or might not have added something… And essentially because this statement was not complete, on appeal it was held that this statement could not be used as basis of conviction because for a dying declaration to be admissible it had to be a complete statement. For example, if he had stopped at,”Charles Daki killed me. He shot me with a gun.” And then he did not express willingness or desire to say other things. Basically he had gone on to say—he was now going off on a tangent. What was he going to say when he said a friend visited him, we went to the garage? May be the friend started quarreling with Charles Daki…

In the case of Pius Jasunga s/o Akumu v R (1954) 21 EACA 331. In this case, a witness who was an assistant police inspector gave evidence that he saw the deceased lying on the road with a wound in his chest. When asked who had injured him the deceased replied, ‘Pius Jasunga had stabbed me’. Later at the hospital, the deceased made a statement to the superintendent of police during the cause of which he got weaker and weaker and he was unable to sign the statement. There was no corroboration of this story and it had been made in the absence of the accused by a man who was suffering from a terrible wound, from which he died subsequently.

 

A dying declaration that is made in circumstances that suggest that the person may have said other things but he was prevented from saying those other things because he expired, the weight attached to that dying declaration must essentially be less than one that appears to be complete.A dying declaration requires corroboration as a matter of practice.

Statements made in the ordinary course of business

Section 33(b) states:“when the statement was made by such person in the ordinary course of business, and in particular when it consists of an entry or memorandum made by him in books or records kept in the ordinary course of business or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce, written or signed by him, or of the date of a letter or other document usually dated, written or signed by him.”

 

So for a statement to satisfy the requirements of 33(b) it has to be a statement being in the ordinary course of business. And section 33 (b) gives examples of those to include entries or memorandum in books or records, and these have to be regularly kept. For instance, books of account, ledgers, journals. It could also be acknowledgements that are written and signed for the receipt of money, receipt books, or documents used in commerce. These would be admissible as an exception to the hearsay rule. And the assumption here is that the person making them has no motivation to falsify them. They are kept in the ordinary course of business; they would actually be entered. But remember in the case of Myers v the DPP what seems to have been record that were kept in the ordinary cause of business were actually ruled to be hearsay because the person making them did not actually come to testify to them. And this is again to talk to the introductory part of section 33, that it has to be that the person is dead, cannot be found, is incapable of giving evidence, cannot be procured or even they can be procured it will be as a consequence of delay and expense which is unreasonable. So in Myers v the DPP it was not established that a person had died, or could not be found. So essentially for this book to be admissible it is not for all time. The exception comes in because what is contained at the introduction at section 33 is already applicable, that there is a problem in getting this person here because they are dead, etc.

 

 

In Commissioner of Customs v SK Panachand (1961) EA 303 (CA)The company imported some blankets allegedly from West Germany, No import licence was required for goods from West Germany, although a licence was required for goods from other countries. The Customs seized the blankets acting on information that they, in fact, had come from East Germany. The company, seeking the return of the blankets, in order to support its case produced two documents, an invoice, and a document signed by a Mr. Blok in which it was stated that the invoice, on which appeared the words “Country of Origin – West Germany”, was correct. The Company claimed that these documents satisfied the burden placed upon the Customs Acts, i.e. to prove the country of origin of the blankets.

 

The decision involved S. 33 of Evidence Act covering cases where the attendance of a witness cannot be procured without unreasonable delay and expense, subs. (b) dealing with statements or documents made in the ordinary course of business. The main issue was whether the invoice and document signed by Mr. Blok were admissible in evidence to prove country of origin.

 

The court held basically that the “any person” who will “give evidence of any other fact” in this case, as set forth in S. 110 I.E.A was Mr. Blok, who by means of his signed document would give evidence of the “other fact”, i.e. that the blankets came from West Germany. Before Mr. Blok could “give evidence through the media of the documents, S. 110 placed the burden upon the Company of proving:

  • that Mr. Blok’s attendance at the trial could not be procured without unreasonable delay of expense,
  • that Mr. Blok’s signed document was used in the course of business, and
  • that the document was actually signed by Mr. Blok, the person whose attendance it was unreasonable to procure.

Since the Company had failed to meet its burden of proving these conditions precedent to the admission of the documents they were held not admissible in evidence and the court ordered condemnation of the blankets.


. The cases of Masalu and Gichunge are particularly interesting because they deal with post-mortem reports and would seem to indicate that fact report can technically be admitted as a statement made in the ordinary course of business if they constitute a statement of fact, rather than a statement of one’s opinion,

In the case of R v Magandazi and four Others (1967) EA 84 (CA), which would also talk to documents made in the ordinary cause of business.The accused were employed in Uganda to carry loads to the Congo. On a charge of theft of a portion of the loads by the accused, a letter from an agent of the complainant’s firm resident in the Congo was placed in evidence, but the writer was not called. The Court said:

“… a letter was produced … by the same witness purporting to come from the agency of the complainant’s firm in the Congo and showing shortages in the goods received. (Section 30(2) quoted). The provision of the Section should in my opinion be only sparingly applied and rarely, if ever, be used where the statement goes to the root of the whole matter before the Court, as in the present case. Further the letter, although it may be said to have been written in the ordinary course of business to report a loss, appears also to be in the nature of a special letter written with a view to the present prosecution.” The letter was not admitted.

Another case might the case of Idi bin Ramadhan v R (1914) 2 ULR 108.

The statement of a police constable was put in evidence during the course of the trial after it had been proved that the constable in question had proceeded on leave. Presumably the statement purported to be put in evidence under s. 32(2) of the Evidence Decree. GRAY C.J. quoted from Magandazi’s case and from Ningawa v. Bharmappa “I think in using the phrase ‘in the ordinary course of business’ the legislature intended to admit statements similar to those, admitted in England, as coming under the same description. The subject is clearly dealt with in Chapter XII of Mr. Pitt Taylor’s Treatise on the Law of Evidence, and the case(s) which he has collected show that this execution to the general rule against hearsay tends only to statements made during the course, not of any particular transaction of an exceptional kind such as the execution of a deed or mortgage, but of business, or professional employment in which the declarant was ordinarily or habitually engaged. The phrase was apparently used to indicate the current routine of business which was usually followed by the person whose declaration it is sought to introduce.”

Statements against the interests of the maker

 

Section 33 (c ) reads:“When a statement against the pecuniary or proprietary interests of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages;”

So essentially a statement which is against the interests of the maker would be admissible as an exception to the hearsay rule.

 

In the case of Marie Ayoub v Standard Bank of SA (1961) EA 743 (CA). And the statement here was made by the deceased. There was a statement in a letter where the deceased was said to be owed for the running of his estate. A statement in a letter in which it was said that the plaintiff were indebted to the deceased for the running expenses of an estate. The question arose as to whether the statement would be an exception to the hearsay rule under section 33(c ) and it was held not admissible because the maker was not dead. The person who had made the statement saying they were indebted to the deceased for the running of the estate was not dead. So the prerequisite for the operation of section 33 (c ) had not been satisfied.

 

In the case of Dias v R (1927) 3 Uganda Law Reports 214, where the accused was charged with the offense of falsifying books of account and the prosecution relied on a letter written by a deceased clerk to the head of the department which charged the accused with having ordered him to make the false entries. So the question was, could such a statement be admitted under section 33 (c ) as one against the interests of the maker. Who was maker of the statement here? The deceased clerk. And who was the accused? He was not the deceased. So the court here held this statement was not proper one for section 33 (c ) equivalent to Uganda, that it could not be admitted as an exception to the hearsay rule because it was in the very interest of the deceased clerk to make that statement so that he could pin responsibility on the other person rather than on himself. So it was not actually a statement against the interests of the maker because the maker was charging another person with falsifying the books and therefore it was not the right statement for the application of this exception.

 

The next exception at section 33 is statements expressing opinion as to a public right or custom. And remember again it is when the maker of the statement would be dead, cannot be found and all those things that are contained in the introductory. So statements made by persons who cannot be called as witnesses are admissible if they give an opinion on the existence of custom and for such to be admissible the people ought to be a person that might be aware of such right or custom and the statement should been made before any controversy as to the right of custom arose.

 

Statements that relate to any relationship

 

The next exception is at subsection (e), which reads:

“When the statement relates to the existence of any relationship by blood, marriage, or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised;”

 

So essentially state of persons who cannot be called as witnesses will be admissible when they relate to the existence of any relationship. And the relationship could be a relationship by blood, by marriage or by adoption. And the person making the statement ought to have been a person who would have had special means of knowledge of the existence of that relationship. So it is not just any person. It is a person who had special means of knowledge. And remember again it is only in instances where that person cannot be called as a witness because of the variety of factors, that they are dead, cannot be found, etc. And the statement must also have been made before there was a dispute as to the existence of the relationship or not. So there ought to have been an unguarded action.

 

Look at the case of Seif Ali Bajkni and others v Hamed Bin Ali (1945) 7 Zanzibar LR 13. This involved a situation where a child was born 10 months after the marriage between the parents was dissolved. During the hearing it was sought to introduce a document concerning the relationship, written by the alleged father. The document was written in contemplation of the suit because the father disputed the parenthood and they made the document in the event that the child should ever file suit.

And the court held that the document conclusively proved the existence of the controversy and it should be rejected. Because remember that the document ought to have be an unguarded assertion. It should not be one done in contemplation of a suit. The document itself conclusively proved the existence of the controversy at the time it is alleged to have been written because the father only wrote the document because they disputed their parenthood of the child.

 

Statement relating to family affairs

The next exception is at (f), statements relating to family affairs. Those will also be admissible and these ought to be made by persons who would have knowledge, again. And they could also be on tombstones, family portraits, or other places where such statement should be made. It could also be in a will or a deed.The assumption here is that there will be nobody inserting falsities in those kinds of places -those are solemn documents.

Statements made by persons who cannot be called

Then at section 33 (g) whre statements made by persons who cannot be called, which are contained in a deed or other transaction that establish a custom, those will be admitted. When a statement is contained in any deed or other documents which related to any such transaction as mentioned in section 13 (a). 13 (a) gave the establishment of customs or rights. Those would be admissible.

 

Statements made by several persons expressing feelings or impressions

And finally under section 33, statements made by several persons expressing feelings or impressions on their part, which are relevant to the issue in question. So if a number of people who cannot be called as witnesses had made statements expressing their feeling or impressions which feelings or impressions are relevant to the matter in question that is going to be admissible.Lord Reid said that the rule against hearsay is very technical and actually take a bit of reading through to begin to appreciate why wouldn’t be admissible.Evidence given by a witness in judicial proceedings is admissible as an exception to the Hearsay Rule and S. 34 to prove the fact stated.

 

Under Section 34(a) the reason to allow this evidence is because the best evidence is not available, the witness has to be dead, cannot be found, is incapable of giving evidence, is kept away by the adverse party, his presence cannot be obtained without delay and expense which is unreasonable. Section 34 (1) (a) gives further requirements as follows.

The subsequent proceeding has to be between the same parties or between their representatives in interest. This is because they would have had the opportunity and right to cross-examine the witness.The adverse party must have had the right and opportunity to cross examine the witness in the first proceeding.The questions in issue were substantially the same in the first as in the subsequent proceeding.

Nassir Haji

A witness had given evidence before

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the magistrate at the preliminary inquiry and then proceeded to England on leave. He proceeded on leave before counsel for the accused had reserved his cross-examination and defence. During the trial in the High Court the evidence of the witness was admitted under S. 33 of the E.A. (a person who cannot be found) on appeal, admission of this evidence given in the preliminary enquiry was challenged. The court held that the evidence had been properly admitted as there was a right as well as an opportunity to cross-examine at the enquiry. The fact that the counsel for the accused had not exercised that right was not the point, the point was that they had opportunity and a right they did not exercise and could not now say that the witness was not available.

 

Queens Drycleaners V. East African Community

Under Section 35 statements in documents produced at a civil proceedings are admissible as an exception to the hearsay rule. S. 35 is to the effect that a written statement is admissible to prove the facts contained in it if it is made by a disinterested person with personal knowledge of those facts or if it is made by one who in the discharge of his duty records information supplied to him by a person with personal knowledge. The recipient of the information who would be recording it should be recording it in a continuous record. In some circumstances where a person has a personal knowledge and being disinterested puts down matters, if the original document is produced in such circumstances, the maker need not be called,

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if the maker is dead, incapable of giving evidence etc.

 

 

Lord Devlin in the case of Bearman’s V. Metropolitan Police Receiver 1961 1 WLR 44

He stated in page 52 “no witness ought to be held to be a person interested on a ground that would not be taken into consideration as affecting the weight of his evidence if it were actually in court” Lord Devlin is saying that the question as to who an interested person is is a question of fact.

 

Section 36 addresses itself to the issue of the way to be attached to a statement rendered admissible by Section 35. Section 35 deals with documentary evidence. It states that weight is pegged to the circumstances relating to accuracy. What odds are there that this statement is accurate.

 

statements made under special circumstances

They are covered under Sections 37 – 41 part 6 of the E A. The first category of such statements are entries in books of accounts. These are admissible if they are relevant but a book has to exist with a number of entries not just a single entry and if the books related to the sale and delivery goods, there has to be corroboration by a person who loaded the goods, or one who saw them unloaded or loaded. S. 37 entries in books of account regularly kept are admissible.

 

Odendo V. R (1974) E.A. 6 is an authority for the proposition that where books of accounts are concerned the need for corroboration is important under Section 37 and also where there is delivery of goods corroboration is essential. Section 38 has an example of an entry in a public record. An entry in any public or other official book register or record stating a fact in issue or a relevant fact and made by a public servant in the discharge of his official duty or by any other person in performance of a duty specially enjoined by the law of the country in which the book register or record is kept is admissible. For example if a priest performs a wedding, they are expected to keep a register even though they are not public officers.

 

What constitutes a public record?

In the case of Ladha & Others V. Patel & Others (1960)A public record must be intended for the use of the public or be available for public inspection. It should be a record of fact not opinion.

In Chandaria V. R The whole question of what constitutes a public official and the court of appeal judges ruled that Section 38 does not apply to documents made by members of the public when detailing information necessary for their individual use whether or not those documents are kept in a public department such as the immigration department. This case dealt with forms that a traveler had filled at the airport and a person sought to introduce this evidence in court under the provision of any other person. The judges were of the view that the provision referred to people other than public officials who find themselves under a specific duty to maintained or keep entries in any record of a public or official nature.

 

Under Section 39 – A statement made under special circumstances

Statements and representations of facts made in published maps or charts generally offered for public sale, or in maps or plans made under the authority of any government in the commonwealth, as to matters usually stated or represented in such maps, charts or plans, are admissible.

The reason for this is to expedite matters

 

Section 40 – statement made under special circumstances

Statement of fact contained in laws and official gazettes. 40(a)

in any written law of Kenya, …

in any written law of Kenya …

 

Section 41 deals with statements as to law contained in books.

 

The court has to form an opinion on the law of a country. Essentially the fact that it is authored under the authority of government is what is going to determine whether it is admissible.

 

statements of persons who are seriously ill

They are admissible as an exception to the hearsay rule. It is provided for under criminal procedure rule. It is necessary to serve the adverse party who is seriously ill, to accord them an opportunity to come and cross-examine the witness. If the person later dies or cannot be procured, then the statement will be admitted as an exception to the hearsay rule.

evidence by certificate

Under Section 78 of the Evidence Act, photographic evidence is admissible in criminal cases upon the production of a certificate by an authorized officer authenticating the photograph. Authenticating is through granting a certificate to the effect that this is what was actually taken for example a birth certificate is issued instead of calling witnesses to testify to ones birth.

 

Affidavits

These are written statements on behalf of people (deponents) it has to be sworn or affirmed and could contain statements of fact which the deponent is able to prove from his own personal knowledge.