TOPIC FOUR

HEARSAY
EVIDENCE

OBJECTIVES
To understand the general principle and
rationale of hearsay evidence
Examine hearsay at Common law

Examine exceptions to the hearsay

rule/evidence
Apply the general principle

Conclusion

General principle and

rationale
Hearsay involves a serial repetition: one person,
the witness, repeats what an individual
(declarant) previously has said outside the
courtroom

Not all out of court statements are considered

hearsay (exceptions to the hearsay rule)
For evidence to constitute hearsay, the
repeated statement must be offered for the
purpose of proving that what the declarant
said is true just as if the declarant were on the
witness stand, giving testimony that the
proponent wants the trier to believe

General principle
Assume the declarant stated to a
witness that the X stole the office
copier last week. Evidence of this
statement is offered b the witness
who overheard it to prove the copier
was stolen by X last week. The
proffered statement is hearsay

General principle
The basis for the rule against hearsay and the
reason for sustaining the opponents objection
is that the opponent is unable to confront and
cross-examine the real witness (the
declarant) and therefore expose weaknesses in
his statement
The statement is classified as hearsay only if the
proponent of the evidence seeks to have the
trier believe that the declarants out-of-court
statement is true
That is only if the proponent seeks to have the factfinder rely on the declarants credibility

General principle
When confronted with hearsay evidence you
should always ask yourself:
What is the purpose of the evidence?

If the purpose of the evidence is to prove the

existence of a fact or facts (e.g. how the
collision occurred), the evidence will be
inadmissible unless it falls in the exception to the
hearsay rule
If the purpose of the evidence is only to prove
what another person said (e.g. what the
eyewitness said as to how the accident
occurred) the evidence will be admissible for
that purpose

General principles
The following example illustrates the nature of
hearsay and the need for cross examination
In a prosecution for the sale of illegal weapons, witness
W testifies that declarant B stated that he B observed the
accused selling a machine gun. If the proponent offers
Ws testimony to show that the accused made the sale,
the trier is asked to believe Bs account of the facts to
rely upon his credibility. The cross examiner, unable to
confront and interrogate the absent B, will find it difficult
to expose weaknesses in Bs statement. X-examination
of the declarant, were he present, might reveal that he
was deliberately lying or that even though he was not
consciously making a false assertion, his statement was
inaccurate because of poor observation, faulty
memory,etc

General principles
In sum if B were on the stand the x-examination
could test not only whether B was willing to tell the
truth, but also whether he had the ability to
perceive the event clearly and to remember
adequately
The examiner could also ascertain whether B is using
the language she intended language that renders
an unambiguous account of what occurred

General principles
The following are hearsay dangers and hence it
inadmissibility

1) Defects in perception: statement may be

unreliable because the declarant did not
observe or hear accurately
2) Defects in memory: the declarants recollection
may have been inaccurate or incomplete
3) Defects in sincerity or veracity: the declarant
may have be inaccurate or incomplete
4) Defects in narration or transmission:
mistransmissions may arise because the
declarants statement is ambiguous

General principle
At common law, a hearsay
statement that has the purpose
of proving a fact is not allowed,
but a statement proving what
that person heard or read it is
allowed

General rule
63 of the KEA states that
assertions by a witness of
what some other person has
told him concerning what
she (that other person) has
perceived is inadmissible

General rule
This means hat if the evidence refers to a fact
which could be seen, heard or perceived by
any other sense, it must be the evidence of a
witness who saw, heard or otherwise perceived,
as the case may be, the fact in question
So too if the evidence refers to an opinion, or to
the grounds on which that opinion is held,
evidence of the person who holds that opinion
on those grounds must give the evidence

General rule
Wawa s/o Kilongo v. R (1970) 17 EACA 152
Facts:
It was alleged that accused had retained poll-tax
money and then, fearing prosecution, handed it over to
one Mwinyipembe to take to the Wakili Mzee. When
Mzee refused to accept it, the accused handed
Mwinyipembe more money telling him to go back to
Mzee and offer that to him so that he refrains from
reporting the matter. Mzee gave evidence as to what
had occurred and had been said to him

CA held: when Mzee deposed to Mwinyipembes

coming to him with 500/- and later 1000/- is was not
hearsay evidence, but we think it was hearsay
when he deposed to what Mwinyipembe had told
him the accused has told Mwinyipembe to say to
him (Mzee)

Exceptions
The KEA makes provision that under certain
circumstances, oral evidence which is not direct
(hearsay) is admissible:
Statements made by persons who cannot be called as
witnesses ( 17-32)
Statements made in special circumstances ( 33, 34)
Statements in documents produced in civil proceedings
( 35, 36)

For statements made by persons who cannot be

called as witnesses to be admissible as evidence it is
necessary hat the person who made them is dead
or cannot be found or has become incapable of
given evidence, or is someone whose attendance
cannot be procured without such delay or expense
as the court considers unreasonable

Exceptions
In Mohamed Taki v. R [1961] E.A. 206
The court was called upon to take judicial notice of
facts relating to natural and artificial division of time and
geographical divisions of the world and public holidays.
A party applied to court to compel attendance of a
witness who at that time was in Switzerland. In the
circumstances of the case, the court expressly judicially
noticed the fact that Switzerland was in Europe and the
proceedings were taking place in Kampala in Uganda
and it would be excessively expensive to import a
witness from Switzerland to Kampala.
The CA stated that it might have been better if the
learned magistrate had had evidence before him of the
conditions which make section 30 of the Uganda
Evidence Ordinance applicable. But he was entitled to
take judicial notice of the facts that Switzerland is in
Europe and Kampala is in Uganda ad he seems to have
been satisfied that the attendance in Kampala of a
witness from Switzerland could not be procured without
an amount of delay or expense which in the
circumstances of the case appeared unreasonable.

Exceptions
Commissioner of Customs and Excise v Shah
Karamshi Panachand and Co [1961] EA 303
In this case the court took judicial notice of the
distance between the Hague and Nairobi and
accepted that it would be unreasonable to bring a
witness from Hague to testify in Nairobi.

The court reasoned as to whether in today's

world of swift air travel, the distance between EAfrica and Europe can still justify dispensing with
a witnessess appearance in person

Exceptions
Thornhill v. Islay Thornhill and Another [1965] EA
268 Quashieldun, and De Lestang, J.A.
observed:
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
in inexpensive, although I agree that it is rapid
It is no exaggeration to say that to a large number of
people the cost of such a journey would be
prohibitive and to all but the wealthy cause serious
financial embarrassment and hardship

Exceptions
Statements made by persons who cannot be called
as witnesses are divided into:
Those made as to cause of death

Those made in the course of business

Those against the interest of the maker
Those giving an opinion as to a public right or custom or
matters of general interest
Those relating to the existence of relationship
Those made in a will or deed relating to family affairs
Those relating to any transaction by which a right or
custom in question was created, modified or denied
Those made by several persons expressing feelings or
impressions, and
Those given as evidence in earlier judicial proceedings

Exceptions
Statements made under special circumstances
are divided into:
Entries in books of account
Entries in public records
Statements in maps, charts and plans
Statements in Acts, gazettes, etc

Statements as to law contained in books

Dying declarations
Provided under 33 (a) of KEA
It is reproduced from the Indian law on
admissibility of a statement by a person as to
the cause of her death
Differs from English law. Dying declarations are
admissible in England only in cases of murder
and manslaughter
In EA and India they are not restricted to
murder and manslaughter, and extends to civil
cases in which the cause of death of the
person who made the statement comes into
question

Dying declarations
In England, a dying declaration is only
admissible as an exception to the hearsay rule.
If the person making it was at that time in
actual expectation of death
In EA and India such statements are relevant
whether or not they were made under the
expectation of death.
In EA and India such statements, however, may
affect the weight to be attached to them.
(Dala Mkwayi v. R (1956) 23 EACA 612)

Dying declarations
R. v. Muyovya Msuma (1939) 6 EACA 128 made
it clear that dying declarations carry less weight
in EA than in England
Courts in EA seem to caution on the
admissibility of dying declarations. The absence
of cross-examination is what makes it
cautionary the particulars of the violence
that resulted to a death may be violent,
confusing etc to prevent accurate observation
Thus in these cases collaboration is highly
desirable

Dying declarations
In R v. Eligu Odel and Epongu Ewunyu (1943) 10
EACA 90, the declarants statements on the
cause of his death were admitted because
there was corroborating evidence, which
placed the two accused Eligu and Emunyu
together earlier that day when they confronted
the victim when he was singing in the road.
The deceased victim was also known to the
perpetrators
These facts made the deceaseds statement
more credible

Dying declarations
Courts in EA have held that corroboration is
necessary before a dying declaration is admitted.
Pius Jasunga Akumu v. R (1954) 21 EACA 331
Corroboration evidence may be purely
circumstantial. R v. Said Abdalla Saidi Mangombe
(1945) 12 EACA 67
A witness had seen the deceased being pursued by a
man, whom she could not identify, carrying a panga. The
deceased named the appellant as his assailant.
Corroboration was held to lie in the fact that earlier in the
day the deceased and the appellant had had a dispute
over the ownership of a sheet and had been seen going
off together in the direction of the place where the
deceaseds body was found, the appellant carrying the
panga, a bottle and the sheet and wearing a cap. Later
he was seen without the cap, bottle or sheet, wet with
sweat and with his eyes red

Dying declarations
The weight attached to a dying declaration
depends on various circumstances
1) On whether or not the declarant was really certain of
the perpetrators identity. (Mdiu Mande alias
Mnyambwa Mande v. R (1965) EA 193)
2) Depends upon the circumstances in which it is given
and the effects of the injuries and how they may affect
the victims memory and intellectual power. (Jasunga
v R (1954) 21 ACA 331), Waugh v. The King [1950] AC
203 where statements made by a man who fell into a
coma while making it and never recovered were held
as inadmissible

Sarkar (on Evidence, 9th edition, p. 150) posits that it

is not necessary in order to render a dying
statement admissible that is should be a complete
account of the attack provided that it is, or may
rationally be assumed to be all the deceased
wished to say about it

Dying declarations
The declaration must be in the actual words of the
deceased victim and if questions are put, both the
questions and the answer must be given (R. v.
Mitchell(1892) 17 Cox 503)
Since most of these are leading questions, there is
danger they may be answered without enough
comprehension
Dying declarations may be admitted if they are
made as to any circumstances which resulted in
the deceaseds death (Swami v. Emperor [1939] 1
ALL ER 396) statements to be admitted must be
made after the transaction has taken place, that
the person making it must be at any rate near
death, that the circumstances can only include
the acts done when and where the death was
caused

Dying declarations
R v. Kabateleine Nchwamba (1946) 13 EACA
164
The deceased, two days before she had
been burned to death in her house, told the
headman that the accused was threatening
to burn her house because he said she had
caused the death of his father by witchcraft.

The Appeals Court held that the statements

were a general expression indicating fear or
suspicion but one directly related to the
occasion of death and therefore admissible

Dying declarations
In Byamungu Rusiliba (1951) 18 EACA 233, the
statements by the deceased that Kagoma
(associate of the accused) has once chased
him with the spear and that the accused and
another person were arranging to kill him were
inadmissible
It seems the court also hesitated to admit
statements made by a murdered woman who
told her friend some 6 weeks before her death
that the accused asked her to marry him and
to give her money, but she refused to marry him
was irregular (Barugahare and others v. R
[1957] EA 149

Dying declarations
In Barugahare the CA stated:
The statements of the deceased indicating motive
would have been rightly admitted if made after the
attack, and perhaps even if made in clear reference
to an imminently expected attack which later took
place: but we thin that in the present circumstances
they were neither statements as to the cause of
death nor statements as to the circumstances of the
transaction which resulted in the death. In one sense
a murder may be said to result from a long-nurtured
grudge, and the source of the grudge may be said to
be a transaction which itself results in the death; but
we emphasize the requirements laid down by the PC
that there must be some proximate relation to the
actual occurrence. whether or not the facts here
alleged bear a relation to the murder, there was
certainly no proximate relation. Questions of this kind
are questions of degree and to some extent of
impression but we think the evidence tendered in this
case went beyond what was permissible

Dying declarations
Other conditions for dying declarations to be
admissible:
1. Only admissible in so far as it would be
admissible if given as sworn evidence
2. The declarant must be competent as a
witness when he made his statement

3. Any statements (hearsay)would be just be

inadmissible as it would be if produced by a
witness (Idi Kondo v. R (1953) 20 EACA 272)

Dying declaration
It has been decided by courts that in homicide
cases a dying declaration is only admissible if
the death of the deceased is the subject of the
charge and the cause of this death the subject
of the dying declaration
R v. Abedi Kasanga (1933) 5 EACA 120, the appellant
had been charged with the murder of Sowedi. Bushiri
in his dying declaration state that he had been
instigated by the appellant to shoot Ali and had in
fact shot Sowedi, mistaking him for Ali. This statement
was held to be inadmissible
R v. Kayanda Msila and others (1943) 10 EACA 117,
Rubongis dying declaration who died on the same
occasion as Mfanye, murders the appellants were
charged, the information on the two murders were
held inadmissible since it was not Rubongis death
which was in question

Dying declarations
Can a statement made by the
deceased in former
proceedings be admitted
under the sections of the KEA
dealing with declarations as to
cause of death?
statements may be
admissible under section 34

Statements made in the

ordinary course of business
33(b) KEA
A statement by a person who is
dead, or who cannot be found or
who is incapable of giving
evidence cannot be procured
without an amount of delay or
expense which appear to the court
to be unreasonable, is admissible if
it was made in the ordinary course
of business

S. 33(b) KEA
Section 33 of the KEA is drafted in a
wider scope compared to English
law, which excludes statements
which were not made
contemporaneously with the facts to
which they relate, or statements of
transactions of which the declarant
did not have personal knowledge, or
statements where there was a motive
or interest to misrepresent the facts

Statements against the

interest of the maker
Statements which are against the pecuniary or
proprietary interest of the maker are admissible
Statements which would expose the maker to
criminal prosecution or to a suit for damages(s.
33(c) KEA are admissible although they are not
in England

Statements giving opinion

as to public rights, etc
Section 33 (d) of the KEA
Statements made by persons who
cannot be called as witnesses are
admissible if they give the opinion of the
person making them as to the existence
of the public right or custom or matter of
public or general interest, of the
existence of which, if it existed, he would
have been likely to have been aware

Statements as to existence
of relationship
S. 33(e) of the KEA
Statements by persons who cannot
be called as witnesses are
admissible as to the existence of
any relationship by blood, marriage
or adoption between persons as to
whose relationship the person
making the statement had special
means of knowledge

Statements in a will or deed

relating to family affairs

S. 33(f) of KEA

Statements in documents
relating to certain
transactions

S. 33(g) of KEA

Statements made by several

persons expressing feelings

S. 33(h) of the KEA

Evidence given in Judicial

proceedings
Evidence given in a judicial
proceeding is admissible for the
purpose of proving, in a subsequent
judicial proceeding, or at a later
stage of the same proceeding, the
facts which it states, when the
witness who gave it is dead or
cannot be found or is incapable of
giving evidence

Statements in maps, charts

and plans

S. 39 KEA

Statements of fact contained

in laws and official gazattes

S. 40 of KEA

Statements as to law
contained in books
S. 41 KEA
In Hakam Bibi v. Mistry Fateh Mohamed
(1955) 28 KLR 91, the issue was whether
bodies of law such as Islamic law and
Hindu law are foreign law
Cram Ag. J stated a contract would be
recognized by Kenyan courts

Statements s. 41 of KEA
However in Hirji Devchand Ramji v.
A.G. of Kenya (1956) 23 EACA 20 in
which the Hindu law of adoption
was the issue, the court stated:
. Referring to the passage in Mullas
Principles of Hindu law . strictly
speaking this quotation is inadmissible
for the book is not a government
publication, but cases are cited by
the author as his authority and these
would be admissible under section 38
of the Indian Evidence Act.

Statements in documents
produced in civil proceedings
The KEA follows sections 1 and 2 of the
Evidence Act of the United Kingdom, 1938
Section 35 and 36 KEA
Under these provisions, in any civil proceedings,
where direct oral evidence of a fact would be
admissible, any statement made in a
document tending to establish that fact is
admissible on production of the original
document, provided certain conditions are
satisfied

Statements in civil
proceedings
Conditions:
The maker of the statement must
have a personal knowledge of the
matters concerned or have made the
statement in performance of a duty to
record information supplied by a
person who had, or might reasonably
be supposed to have had, personal
knowledge of the matters concerned

The maker of the statement must be

called as a witness, unless he is dead
or cannot be found or is incapable of
giving evidence