KABARAK UNIVERSITY

SCHOOL OF LAW

COURSE TITLE: TRIAL ADVOCACY

LECTURER: ELISHA ONGOYA

CONTINOUS ASSESSMENT TEST

NAME: WAMUKOTA HUDSON SITATI

REGISTRATION NUMBER: LAW/M/0380/05/16

QUESTION 7: With reference to authoritative legal materials, discuss the rules and principles
including tactical measures governing cross-examination.
CROSS EXAMINATION

Cross examination is defined as a system of rules for ascertaining controverted question of fact
in judicial inquiries. It is the interrogation of witness by the opposite party. 1

The object of cross examination is twofold:

To bring desirable facts of the case modifying the examination in chief or establishing the
cross examiners own case.

In his examination in chief a witness discloses only a part of necessary fact, not merely the
witness is frequently a partisan the party calling him but also and chiefly his evidence is given
only by way of answers to specific questions, and the counsel producing him surely calls for
nothing but the facts favorable to his party. If nothing more were done to unveil all the facts
known to the witness, his testimony must present half truths only. The party calling the witness
will not naturally question the witness as to these matters, and, therefore, it is the duty of the
other party counsel to elicit these relevant facts to the issue in cross examination of the witness.2

Impeaching the credit of the witness

The counsel for the adverse party will interrogate the witness to bring out facts which go to
diminish or impeach the trust worthiness or credit of the witness. Such facts generally remain
undisclosed in the examination in chief of the witness and therefore it is the duty of the cross
examiner to bring them out by proper interrogation. Some of these facts can only be obtained
from the witness himself.3

The credit of a witness may be impeached in the following manner;

1. By testimony of persons who swears that they know the witness to be unworthy. A
person declaring a person to be unworthy of credit may not give reasons in his
1M.Monir: The Art of Cross Examination in Justice Malik: The Art of a Lawyer (10th Edition, New Delhi: Universal Law
Publishing Co.Pvt.Ltd.,2019) [586]-[603]
2M.Monir: The Art of Cross Examination in Justice Malik: The Art of a Lawyer (10th Edition, New Delhi: Universal Law

Publishing Co.Pvt.Ltd.,2019) 606

3M.Monir: The Art of Cross Examination in Justice Malik: The Art of a Lawyer (10th Edition, New Delhi: Universal Law

Publishing Co.Pvt.Ltd.,2019) 607

 examination in chief, by he may be questioned as to such reason in cross examination and
the answers thus given are not liable to be contradicted, though if false they may form a
proper foundation for his prosecution for perjury.
2. By proof of bribery or offer of bribery or other corrupt inducement.
3. By proof of former statement inconsistent in that part of his evidence which is liable to be
contradicted.4

In the case of Law Society of Kenya v Faith Waigwa & 8 others, Justice J. K. Sergon
summarized the rationale for cross examination as follows, “Let me once more restate the
rationale of cross-examination of witnesses. First, it is a mechanism which is used to bring out
desirable facts to modify or clarify or to establish the cross-examiner’s case.
In other words, cross-examination is meant to extract the qualifying facts or circumstances left
out by a witness in a testimony given in examination in chief. Secondly, the exercise of cross-
examination is intended to impeach the credit worthiness of a witness. In cross-examination a
witness may be asked questions tending for example to expose the errors, contradictions,
omissions and improbabilities. In the process, the veracity of a witness’s averments is tested.
Thirdly, the exercise of cross-examination in some cases gives the court an early chance to get
the glimpse of what to expect during the substantive hearing.”5

STATUTORY PROVISIONS RELATING TO CROSS EXAMINATION6

The constitution of Kenya gives right to an adverse party to adduce and challenge evidence
during trial.7 In the case of Moses Ndichu Kariuki VS Republic, One of the grounds of appeal
before the Court of Appeal was that the appellant was not accorded a fair trial under Article 77
(2) of the former constitution which is the equivalent of the new Article 50. The Court of Appeal
upheld that ground and stated as follows:-
“In our determination, the right to cross-examine is the linchpin of the concept of a fair trial in
that, it has a bearing on the principle of the equality of hearing and the equality of arms without
which a trial cannot be said to have been conducted fairly. On our view, denial to cross-examine
in turn means that the defence was not treated fairly and the two requirements of equality of
hearing and equality of arms were not satisfied. Our view on this is reinforced by the marginal
notes in Section (Article) 77 in that the entire provision is entitled the provisions to secure
protection of law. Clearly the failures to recall the complainant for purposes of further cross
examination by the appellant caused prejudice to the appellant.”8

4 M.Monir: The Art of Cross Examination in Justice Malik: The Art of a Lawyer (10th Edition, New Delhi: Universal Law
Publishing Co.Pvt.Ltd.,2019) 591
5
[2015] eKLR
6 Mohd.Rahmat Ullah: The Art of Cross Examination in Justice Malik: The Art of a Lawyer (10th Edition, New Delhi: Universal

Law Publishing Co.Pvt.Ltd.,2019) [581]-[585]

7 The Constitution of Kenya,2010,Art.50(2)(k)
8
2008 (2009) eKLR
Under Order 19 rule 2(1) of the Civil Procedure rules the court is given a wide discretion to order
attendance of a deponent for cross-examination on the application of either party.

Leading questions may be put in cross examination9. Cross examination must as much as the
examination in chief relate to relevant facts. The cross examination need not to be confined to
facts to which the witness testified in his examination in chief. A witness may be cross examined
as to all facts relevant to the issue and his answers thereon maybe contradicted.10 He may also be
cross examined in all matters which affect his credit and his answers thereon cannot except in
two cases be contradicted.11

Hearsay is always inadmissible as substantive evidence whether that evidence be elicited in

examination in chief or cross examination insofar as it touches the question of credibility of the
witness examined.

A witness maybe cross examined as to previous statements made by him in writing or reduced
into writing and relevant matters in question without such writing shown to him or being proved
but if it is intended to contradict him by the writing must be drawn before the writing can be
proved, be called to those parts of which are to be used for the purpose of contradicting him.12

In all cases the knowledge of the witness who is called to prove handwriting can be tested in
cross examination by the opposite party by the latter first showing him other documents which
are neither admissible as evidence in the cause, nor proved to be genuine then asking him
whether such documents were written by the same hand as the paper in dispute and on the
expression of the witness on his belief that all the documents are in the same handwriting
proving that those produced by the cross examining counsel were not genuine and then putting
them in evidence in order to enable the jury to appreciate the testimony given by the witness.13

9 Evidence Act (Revised Edition 2014) Cap 80,s 151

10
Evidence Act (Revised Edition 2014) Cap 80,s 146(2)
11 Evidence Act (Revised Edition 2014) Cap 80,s 154
12 Evidence Act (Revised Edition 2014) Cap 80,s 153
13 Evidence Act (Revised Edition 2014) Cap 80,s 167
A witness can be cross examined as to any collateral independent fact irrelevant to the matter in
issue for the purpose of contradicting him if his answer be one way by another witness in order
to discredit the whole of this testimony.14

Whether the right of cross-examination survives if the cross-examiner afterwards calls his
opponents witness to prove his own case, the better opinion is that it does not and that the
witness cannot be asked leading questions on his second examination while he may afterwards
be cross examined by the party who originally called him.15

A witness called merely to produce a document need not to be sworn if the document either
requires no proof or is to be prove by other means and if not sworn he cannot be cross
examined.16 The court may in all cases permit a witness to be recalled either for further
examination-in-chief or for further cross-examination, and if it does so, the parties have the right
of further cross-examination.17 In the case of Republic v Salim Mohamed, the defence counsel
made an oral application to have PW1, PW2, PW3 and PW4 recalled for further cross-
examination on the basis that there was information contained in the statements of the witnesses
which were not brought out during examination in chief or cross-examination. His intention was
not to impeach the credibility of the witnesses but to place vital information in the court record
so as to help the court in determining the case. The court agreed with him and recalled the
witnesses for cross examination.18
A witness to character may be cross-examined and re-examined.19A witness shall not be excused
from answering any question as to any matter relevant to the matter in issue in any suit or in any
civil or criminal proceeding upon the ground that the answer to such question will incriminate or
may tend directly or indirectly to incriminate such witness, or that it will expose or tend directly
or indirectly to expose, such witness to penalty of any kind.20

The following are some of the rules of cross examination21:

1. Except in different matter, never take your eye from that of the witness: that is a
channel of communication from mind to mind, the loss of which nothing can
compensate.

14 Evidence Act (Revised Edition 2014) Cap 80,s 162

15 Evidence Act (Revised Edition 2014) Cap 80,s 161
16 Evidence Act (Revised Edition 2014) Cap 80,s 147
17
Evidence Act (Revised Edition 2014) Cap 80,s 146(4)
18
[2016] eKLR
19 Evidence Act (Revised Edition 2014) Cap 80,s 148
20 Evidence Act (Revised Edition 2014) Cap 80,s 156
21 David Paul Brown: Golden Rules: The forum (Phipson’s Edition of Best,1922), M.Monir: The Art of Cross Examination in

Justice Malik: The Art of a Lawyer (10th Edition, New Delhi: Universal Law Publishing Co.Pvt.Ltd.,2019) [628]-[629]
2. Be not regardless, either of the voice of a witness next to the eye, is the best
interpreter of his mind. The mental reservation of a witness is often manifested in
the tone or accent or emphasis of the voice.
3. Be mild with the mild, shrewd with the crafty, confiding with the honest, merciful
to the young, the frail, or the fearful, rough to the ruffian and a thunderbolt to the
liar. But in all this never be unmindful of your dignity. Bring to bear all the
powers of your mind, not that you may shine, but virtue may triumph, and your
cause may prosper.
4. In a criminal, especially in a capital case, so long as your cause stands well, ask
but few questions; and be certain never to ask any question the answer to which, if
against you, may destroy your client, unless you know the witness perfectly well,
and know that his answer will be favorably equally well; or unless you be
prepared with the testimony to destroy him, if he plays traitor to the truth and your
expectations.
5. An equivocal is almost as much to be avoided and ‘condemned as an equivocal
answer, and it always leads to, or excuses an equivocal answer.Singlenesss of
purpose, clearly expressed, is the best trait in the examination of witness, whether
they be honest or be reverse. Falsehood is not detected by cunning, but by the
right of truth; or if by cunning, it is the witness, and not of the counsel.
6. If the witness determines to be very witty or refractory with you, you had better
settle that account with him at first, or there items will increase with examination.
Let him have an opportunity of satisfying himself that he has mistaken on his
own. But in any result, be careful that you do not lose your temper; anger is
always the precursor or evidence of assured defeat in every intellectual conflict.
7. Like a skillful chess player in every move fix your mind upon the combinations
and relations of the game; partial and temporally success may otherwise end in
total and remediless defeat.
8. Never undervalue your adversary but stand steadily upon your guard; a random
below maybe just as fatal as though it were directed by the most consummate
skill; the negligence of one often cures, and sometimes renders effective the
blunders of another.
 9. Be respectful to the court, kind to your colleagues, civil to your antagonist; never
sacrifice the slightest principle of duty to an overweening defence towards either.

SCOPE OF CROSS EXAMINATION22

Cross-examination is not a must that it should be confined to the matters to which the witness
has testified in examination in chief but extends to the whole case. The adverse party is at liberty
not only to cross-examine him on every issue but also to put leading questions to establish his
own case.

Hearsay is as much inadmissible in cross examination. Only questions relating to relevant facts
are to be asked. A witness may be asked any question which tends to test his veracity, or to
discover who he is and his position in life, or to shake his credit by injuring his character.
Similarly, a witness may be asked in cross examination whether he has previously made any
statement in consistent with his testimony in court, or whether he has been bribed or has received
any other corrupt inducement to give his evidence. A witness may also be asked as whether he
has been convicted of any offence. He may be asked questions tending to impeach his
impartiality. The situation of the witness with respect to the parties and to the subject of
litigation, his interest, his motives, his inclination and prejudices, his character, his means of
obtaining correct and certain knowledge of the facts to which he bears testimony, the manner in
which he has used those means, his power of discernment, memory and description, all facts
which may properly form the subject matter of the cross examination. The court may disallow
any questions in cross examination which it regards as indecent or scandalous, even if such
question have some bearing on the questions before the court, unless they relate to fact in issue
or matters necessary to be known in whether to determine whether or not the fact in issue
existed.23

Timothy A. Pratt established what he called the ten commandments of cross examination which
includes;24

22M.Monir: The Art of Cross Examination in Justice Malik: The Art of a Lawyer (10th Edition, New Delhi: Universal Law
Publishing Co.Pvt.Ltd.,2019) 611-612

23Evidence Act (Revised Edition 2014) Cap 80,s 154

24Timothy A. Pratt: The Art of Cross Examination in Justice Malik: The Art of a Lawyer(10th Edition, New Delhi: Universal
Law Publishing Co.Pvt.Ltd.,2019) [958]-[969]
1. Though shall prepare.
An advocate must prepare in order to know which questions to ask because the court will
access his or her depth of knowledge and commitment to the case by the demonstrated
ability to handle the details of cross-examination.
2. Thou shall know thy objective.
The lawyer should bear in mind those points he or she wishes to make with the witness.
The advocate should demonstrate a clear understanding of which points are critical to the
case, and which can be extracted most appropriately from each witness.
3. Thou shall take baby steps.
Advocates should exercise patience in delivering key points by demonstrating
understanding step by step where the cross examination is headed.
4. Thou shall lead the witness.
Advocate should only ask leading question since they are the most effective because they
essentially allow the cross examiner to testify and the witness to ratify, leading questions
allows the cross examiner to be forceful, fearless, knowledgeable and informative.
5. Thou shall know thy style and adapt to it.
Good trial advocates develop their own comfortable styles; the advocate should be
aggressive but not angry or loose temper. The advocate should also know the difference
between tough and mean, between confidence and arrogance and between dominance and
control.
6. Thou shall know when to quit
The advocate should quit when the witness has been discredited or has made a
monumental concession. The advocate should also quit when the witness is killing the
case or the counsel.
7. Thou shall know what to take to the podium.
An advocate should prepare and develop a good cross examination outline. During the
cross examination being organized, effective and quick to the point is critical.
8. Thou shall know the audience.
 An advocate should consider a situation where the examiner is masterful, the witness is
based on technical points and impeachment is never easy. The effective trial lawyer
should remember that the important audience is the witness.
9. Thou shall know the rules of evidence.
Counsel must introduce evidence during cross examination. The admission of evidence
requires a keen understanding of the rules of evidence and how to argue them.
10. Thou shall know the court.

Not all judges or magistrates are equal. Some know the rules of evidence but some do not. Some
are courteous and patient and some are not. Some will impose restriction on cross examination
and some will not. When appearing before a magistrate or a judge, observe him or her during
trial, talk to advocates who have tried their cases before that judge or magistrate and gather
enough information from every conceivable source seeking out details. An Advocate has lost
control of a cross-examination when he or she engages in an ad hoc dialogue with the witness.
That’s because, despite the question-answer format, cross-exam is not a conversation.
WITNESS CONTROL DURING CROSS EXAMINATION
A trial advocate who finds herself embroiled in an impromptu discussion with a witness on
cross-exam (or worse, an argument) has lost control of the witness and the examination. The key
to avoiding this loss of control is preparation.25
Get the Facts Before Trial. Once trial begins, an advocate must accept the fact that the time for
discovery has come and gone. A good cross-examiner will have mastered the facts of the case
before trial and constructed a cross-examination based exclusively on those facts. No matter how
desperately a lawyer is itching to learn the answer to a newly conceived question during trial, she
will resist the urge if she wants to maximize witness control. The best cross-examiners will tell
you they ask questions only when they already know the answers. This strategy maximizes pre-
dictability and control on cross-exam and allows for quick impeachment if the witness fails to
agree on any fact. 26
Source Every Fact. A corollary to the maxim “ask only questions you know the answer to” is
“source the answer to each question.” This means that for each question, a lawyer should not

25
Maureen A.Howard:Mastering Foolproof Witness Control on Cross examination: Off the Road(Washington
press)9
26
Ibid
only know the fact-based answer in advance, she should know where to quickly access the
evidence to prove up that fact if needed. In most cases, this will be a prior inconsistent statement,
such as a deposition. Do not rely on your memory in this circumstance. Rather, annotate the
source of each answer right next to the question. It is frustrating for jurors (and the judge) to wait
for a lawyer to search for impeachment evidence. And when the adrenaline is pumping and a
witness stubbornly refuses to confirm that a straightforward fact is true, it can be difficult for a
lawyer to maintain composure and put a finger on a fact in a deposition based on memory alone.
Just the Facts. A foolproof cross-exam is constructed of facts, because a witness can quibble
with anything subjective, such as conclusions, opinions, or inferences. Therefore, a tight cross-
exam does not include any comparators or adjectives, because they invite dialogue.
One New Fact at a Time Another technique to maximize witness control on cross-exam is to
include only one new fact per question. A question may contain multiple facts, but only one of
them should be new. Otherwise, if the witness rejects the facts as presented, the lawyer is left
unsure where the fight is. Which fact, or facts, is the witness disputing? For example, suppose
the question is, “You were walking down Third Avenue in Seattle at noon on August 14 when
you saw three men run out of the Bank of America?” If the witness responds, “No,” the lawyer is
forced to retreat and review each fact one by one to identify which one is disputed. This method
is awkward and time-consuming, and it can damage the lawyer’s credibility with the jury.
Techniques to Regain Control Even lawyers who craft short, simple, single-fact, leading
questions may sometimes find themselves facing a witness who refuses to cooperate. In that
case, there are techniques to expose such a witness as evasive and uncooperative without injuring
your credibility with the jury. 27
Do Not Interrupt the Witness. If the witness refuses to give a straight answer to your clean,
short, one-new-fact question, do not become agitated and declare war. Unless the witness is
damaging your case, such as starting to talk about a matter previously ruled inadmissible (or one
you’d like to have the judge rule inadmissible), do not interrupt him. You will appear rude and
seem like you’re trying to hide the ball from the jury. If the witness refuses to give a straight
answer to a simple fact-based question, let him blather on. The jury will see him for the truth-
dodging weasel he is.

27
Maureen A.Howard:Mastering Foolproof Witness Control on Cross examination: Off the Road(Washington
press)9-10
The Hand Stop Although you shouldn’t interrupt a witness, you can sometimes silently direct
him to stop speaking by putting your hand up as if to say, “Stop.” It is amazing how well this
technique works, even with arrogant, caustic witnesses. Perhaps this is because the nonverbal
command is rooted in childhood and hardwired into us. The hand gesture should not be
flamboyant, however. The goal is to subtly cue the witness to stop, not to draw the jury’s
attention to you by parodying a police officer directing traffic. The beauty of the subtle hand stop
is that the lawyer regains control of the witness without appearing rude.

Repeat Your Question. If the witness blathers on none responsively, just repeat your simple
question. Doing this three times underscores for the jury the witness’s refusal to cooperate. It can
also be effective to write the question down for the witness to drive home to the jury the
simplicity of the question and the inherent unfairness of his refusal to answer the question.

“Okay” and “That’s Right.” Another reason foolproof cross-exam includes only simple
leading questions the lawyer knows the answer to (and can readily impeach with pre-sourced
answers) is because a question put to a witness on cross-exam but not admitted is often viewed
by the jury not as yet unproven — but rather that the opposite is proved! If the witness is refuses
to acquiesce, you must impeach. If the witness gives a substantively comparable answer,
however, do not fight it. Instead, use the “Okay” technique.

The “Reverse/Repeat.” If a witness will not answer a simple, one-fact question after multiple
attempts, try flipping the question 180 degrees and putting the polar opposite fact to him.

Beware the “Nonresponsive” Objection. It is the prerogative of the examining attorney to

object when a witness is nonresponsive. The danger is that the objection may well highlight the
nonresponsive testimony for the jury. As a general proposition, the “nonresponsive” objection is
a tripartite endeavor: the lawyer 1) objects to the testimony as “nonresponsive”; 2) moves to
strike; and 3) asks the judge to give an instruction to the jury to disregard the testimony. Doing
this can have the unintended consequence of having the testimony repeated multiple times in
front of the jury, which is counterproductive. The better road is often to let the nonresponsive
answer slide.

Do Not Go to the Judge for Help. If you have crafted clean, short, one-new-fact questions, you
will not need to seek help from the bench. If you use the “repeat the question three times”
technique, it is unlikely the judge will need to jump in and instruct the witness that he needs to
answer the question. You, as the lawyer, do not ask the judge to do this — it signals your loss of
control to everyone in the courtroom.

Do Not Spank the Witness Until 10 Minutes after the Judge or the magistrate Want You
To.

Although cross-exam need not be “cross,” there are times when it is appropriate to deliver some
attitude to the witness. Just make sure the judge and jurors are grateful when you do this.
Remember, the goal on cross-exam is to discredit the witness, not you. Having an attitude with a
witness before it feels appropriate to the jurors conveys that you are motivated by emotion
instead of logic. This undermines your credibility, which is your most valuable asset as a trial
lawyer.28

EXPERT OPINION

What is an opinion?

Opinion is defined to mean any inference which one may draw from perceived data. It is
whatever you infer from what you see, smell, hear, feel etc and the general rule in evidence is
that a witness should confined himself/herself to what they perceive to leave the court to draw
the inferences.29

It is however not always possible to separate perceived facts from opinions in some cases they
are intertwined and it would be impossible to separate the two. The court might sometimes need
the opinion of people better placed than it to draw the inferences and it is in these situations that
he court allows the inferences.

Evidence Act outlines the number of incidences when the court may be called to draw the
inferences where facts and opinions are so intertwined and the court needs assistance by hearing
opinions of experts better placed that itself. In all instances where people are called to give
opinion evidence, it is a general rule that evidence be direct.

The first instances is where experts are called to give evidence, and experts are people that are
possessed of special skills in the field in which they are called to opine or testify and the basis for
admission of expert opinion is given under the Evidence Act.30

28
Ibid
29
Richard May and Steven Powles:Criminal Evidence (5th Edition, Reprinted 2011 by TJR Digital, Sweet and Maxwell,2014)
[622]-[626]
30
Ibid, Evidence Act (Revised Edition 2014) Cap 80,s 48
In the case of R v. Silverlock, the court accepted the evidence of a solicitor as expert opinion in
a matter involving handwriting because though the solicitor was not schooled in the matter, he
was experienced through keen interest in the matter.31

In Odindo V. R, the Appellant was convicted of driving a motor vehicle under the influence of
alcohol. A police inspector testified to the effect that when the Appellant was brought to the
control room of the Traffic Headquarters he smelt of drink. The Inspector opined that this
person was smelling of drink and was incapable of coherently telling his name, he could not tell
the time by the clock on the wall and he could not stand on one foot with his hand horizontally
spread. The Inspector concluded his testimony by asserting that in his opinion the accused was
completely incapable of having control of a motor vehicle. The judge objected to this opinion
saying that the policeman should have confined his testimony to what he had observed, leaving
the issue of fitness to drive to the court or a doctor.32

In the case of Stephen V. R, the court rejected evidence by a policeman that he had found the
accused in possession of a drug called Bhang. The court is saying that one should tell the court
that you found them with a substance that looked and smelled a certain way and leave the experts
to decide what drug it was. The court is trying to prevent lay persons from giving opinions on
matters that require long years of experience.33

In the case of Charles Ng’ang’a v. R, the accused was charged with the offence of causing
death by dangerous driving. A policeman testified on the point of impact to which the defence
objected because the policeman was not an expert on the matter. The trial court overruled the
objection and on Appeal it was held that unless it can be shown that a policeman has many years
of experience in inspecting motor vehicle accidents, a police witness should not give opinion
evidence of such matters.34

How do experts testify?

Experts are brought to court by people who intend to rely on their expertise. That party will
inform the court of their expertise. The question as to whether a person is an expert or not is a
question of fact which is determined by the court. The pointers or the things that will help the
court in coming to a conclusion are;

1. Educational background; they may want to see certificates;

2. Evidence on the areas in his/her field where he/she has taken extra courses;

31
[1894] 2 QB 766
32
[1969] E.A. 12
33
[1973] EA 22
34
[1980] EA 66
3. Work experience.35

In the case of Mohamed Ahamed V. R, the Appellant had been convicted of occupying an
unsafe house which in the opinion of the district housing inspector and the superintendent of
works was so unsafe as to constitute a nuisance. The Court of Appeal held that these two
persons were not qualified experts and so their evidence was inadmissible.36

In practice, if the expert has perceived of the facts from which he/she proffers his opinion or if
the facts are not disputed, such expert is asked direct questions such as was the accused insane or
was he so drunk as to be incapable of controlling a motor vehicle. If however the expert did not
perceive of the facts or if the facts are disputed he is asked hypothetical questions such as are the
facts adduced consistent with the existence of a certain state such as drunkenness or insanity? 37

Evidence Act provides for provisions where grounds for an expert opinion are admissible but the
provision does not make it mandatory for the expert witness to give reasons.38

In the case of R V. Salim s/o Sengero, the court held that evidence is to the effect that a court
would welcome reasons for a witness’s opinion even though it is not mandatory that this be
given.39

In Onyango V. R, the court stated that it is necessary for experts to give reasons for their opinion
as this helps to equip the court with better knowledge of the matter under investigation which is
to the effect that it is not a universal requirement that reasons for the opinion should be given. An
expert should come to court prepare to justify his opinion by argument and demonstration. But
he need not necessarily be asked to do so. In many cases, it is sufficient if the expert gives his
opinion, the more eminent the expert the less the need for demonstration. So the long and short
of this statement is that whilst the law does not require an expert to bring in his opinion, when he
does come to court, he should be prepared to justify and demonstrate and argue their reasons for
their opinion.40

HOW SHOULD COURTS TREAT EXPERT OPINION

It is opinion only and the court must still make its own conclusion and there is strong feeling that
courts should not abdicate their reasons for decision making to experts.

35
Peter Murphy and Richard Glover: Murphy on Evidence (12 Edition, Oxford University Press,2011) 606
36
[1957] E.A. 323
37
Richard May and Steven Powles:Criminal Evidence (5th Edition, Reprinted 2011 by TJR Digital, Sweet and Maxwell,2014)
[622]-[626]
38
Evidence Act (Reprinted 2014) Cap 80
39
[1939] E.A.CA.147
40
[1969] E.A 362
In the case of Kit smile Mugisha V. Uganda, the Court of Appeal took the view that expert
opinion is only opinion and it cannot take the place of substantive evidence. The court states that
the court has to decide an issue upon such assistance as the expert may offer but it should not
abdicate its role of opinion making to the expert called before it. It must form its own opinion on
the subject matter at hand.41

In the case of Hassan Sallum V. R, the case was on the line that the court should not over-rely
on experts, they can also make mistakes. The court should not be bound by the expert opinion.42

In the case of R V. Kipikandimu,the court held that Expert should base their opinion upon facts.
Where a medical expert gave evidence that certain injuries described by him were inflicted
before death. He gave no reasons for his opinion. The court held that the opinion evidence was
inadmissible as to the cause of death.43

If the opinions of two experts conflict, the court has to make its own opinion by looking at the
credibility of the evidence available and the eminence of the experts. If the two conflicting
experts are equally eminent and creditworthy, then the matter is taken as not proved and the
party on whom the burden of prove lies has to dispense with it in another way.

Opinion evidence should be direct and oral unless it is expressed in a book commonly offered
for sale.44 Expert opinion on handwriting is governed by section 50 of Evidence Act.

41
[1976] E.A 78
42
[1964] E.A 126
43
[1946] 7 Zanzibar Law Reports 90
44
Evidence Act (Reprinted 2014) Cap 80,S 63(2)