Law Of Evidence Question Paper

Law Of Evidence

Course:Bachelor Of Laws

Institution: Kenyatta University question papers

Exam Year:2010

LPR 201- EVIDENCE 1
Answer question 1 and any two other questions. You will be penalized for not answering question 1
1. On 12th December 2002, at approximately 12. 00 noon, Caroline, then a secretary with Kisegi Agencies, was at the firm’s offices in Mombasa, when at about 12.15 p.m. three men entered and requested to see the director of the firm one Ouma. She was in the office with Gladys. Ouma had clients in his office and so the three men were asked to wait for those clients to leave before they would be allowed in. Caroline testified that she was able to observe and talk to these three men. Eventually, the clients in Ouma’s office came out and Caroline asked the three gentlemen to go in. Two of the men went in leaving one with Caroline. Caroline testified that the man who was left behind was the appellant. His explanation for not accompanying his two companions into Ouma’s office was that the ‘two were enough’.

As soon as the two gentlemen entered Ouma’s office, some explosion, as that of gunshots was heard from outside. Caroline stood up to find out whether it was an electric fault but was prevented from leaving her office by the appellant who blocked her way and pushed her back. Soon after, the gentlemen who had gone into Ouma’s office came out. One of them had a firearm in his hand which he pointed at Caroline and at the same time commanded her to raise her hands. A client of the firm who was waiting to see Ouma was likewise ordered to raise his hands. Both complied. The appellant then immediately sped out of the office. Caroline checked on Ouma and found him lying on the ground with a bullet wound. She made arrangements and the injured man was rushed to hospital for treatment but was pronounced dead on arrival.

Caroline testified that immediately she found Ouma lying on the ground she raised an alarm. Some people saw the appellant and his confederates escaping. They pursued them shouting ‘thief, thief’. Police constable Kennedy who was on duty with a colleague, Wanjala, heard the shouts and saw three people running towards them. He decided to join the chase. He saw the three people confront a motorist one Rashid who had yielded at a roundabout, pulled him out of the car, a Toyota Corolla, registration number KAG 224X, and tried to drive it off. Kennedy ordered them to stop and when they defied his order he fired his weapon aiming at the person who had sat behind the steering wheel. The man was fatally injured. The others came out and ran away. Kennedy testified that he observed the two as he pursued them and never lost sight of them. He fired and shot one of them in the buttocks as a result of which the latter fell down. The third man fired back and injured one of the people who were pursuing them. The person whom Kennedy injured was the appellant.

On the 15th of December, 2002, an identification parade was organized with Caroline and Gladys as identifying witnesses and the appellant as the suspect. Both witnesses picked the appellant as the person they had seen at their office in the company of two others who fatally shot their boss. Caroline swore that she could remember the appellant extremely well. Rashid, on the other hand, did not observe the appellant as to be able to identify him before the appellant was arrested nor did he say he identified any of his attackers. He saw the appellant after he was arrested.
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The above narrative is not fictional. The Court of Appeal in Mombasa Criminal Appeal No. 142 of 2005 had to make a decision whether or not to uphold the decision on a second appeal.
Identify and discuss the evidential issues particularly those relating to relevancy and admissibility of evidence that arise.
In whose favor do you think the issues were resolved?
What in your view was the decision of the Court of Appeal and what was the basis for the said decision?
Assuming that the identification parade was conducted fairly, what was the probable procedure employed by the police in this regard?
Assuming that the Court of Appeal upheld the decision of the Superior Court and the trial court, what usual factors would the Court of Appeal warn itself of or take into account?
Compulsory (30 marks)
2. ‘A father battering his minor daughter to death? What a beastly act! I see nothing wrong absolutely with the prosecution introducing into its evidence the fact that the accused has recently been convicted and sentenced for assaulting his wife. This beast should be put away for life!’ Anonymous.
Discuss the above statement in the light of the Evidence Act and decided cases. (20 marks)
3. Write short notes on three of the following:
a. Burden of proof (5 marks)
b. Standard of proof (5 marks)
c. Judicial notice (5 marks)
d. Presumptions (5 marks)
e. Opinion evidence (5 marks)
(20 marks)
4. ‘The then Lord Chief Justice of England, Lord Alverstone (were he alive today), would be pleasantly surprised to learn that his advisory note to the Chief Constable of Birmingham on how statements should be recorded from prisoners is of wide application particularly in the Commonwealth. Thanks to His Lordship, an accused person from Kogelo Village in Western Kenya enjoys greater protection in this regard. His constitutional rights under section 77 of the Constitution are that much more secure.’
Discuss the significance of this statement and additionally, identify any recent relevant amendments to our laws that further secure an accused’s protection in the above regard.
(20 marks)
5. ‘Renowned Anglo- American writers on the law of evidence may differ on some aspects and specifically on the scope, need and rationale of the subject but by and large, they are agreed on what constitutes the fundamental principles of the law of evidence.’
Do you agree with this statement?
Discuss the statement also bearing in mind the provisions of the Kenya Evidence Act in view.
(20 marks)

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