Lesson/Module 13

Character Evidence

OBJECTIVES
a) Be able to define character
b) To be able to understand admissibility of character evidence in civil cases
general rule and exceptions.
c) To be able to point out admissibility of character evidence in criminal cases
and exceptions to the rule.
d) To be able to apply the same to real life situations.

Topics
9.1 Introduction
9.2 The rule
9.3 Character in Civil Cases
9.4 Character in Criminal Cases
9.4.1 Good Character
9.4.2 Bad Character
a) Accused
b) Victim
c) Other Witnesses

58. Definition of “character”

In sections 55, 56 and 57 of this Act the word “character” includes both reputation and
disposition; but, except as provided in section 57, evidence may be given only of general
reputation and general disposition, and not of particular acts by which reputation or
disposition were shown.

The “character” of a witness means not only his disposition, but his general
reputation in the community. Character, when admissible, affects the
credibility of the witness.

Those instances in which the character of an accused is admissible through

admission into evidence of previous or similar occurrences, or of previous
convictions to show system, state of mind, or feeling, have been covered in the
discussion of ss.14 and 15; see pp.16 – 23, supra.

Definition of character.

In sections 55, 56 and 57 of this Act, the word “character” includes both
reputation and disposition; but, except as provided in section 57,
evidence may be given only of general reputation and general disposition,
and not of particular acts by which reputation or disposition were shown.
THE SHORTER OXFORD ENGLISH DICTIONARY defines “reputation” as

“The common or general estimate of a person with respect to character or

other qualities; the relative estimation or esteem in which a person is held.”

“Disposition”, as relevant, is defined as

“The state or quality of being disposed (to, or to do something); inclination

(Occas. – desire, intention).

Thus the “disposition” of a man, rather than meaning that he had a “cheerful” of
“unpleasant” disposition, here means whether he is disposed to do certain
kinds of acts, or disposed to act in a certain way in relation to a particular
situation.

Character in civil cases.

55. Character in civil cases

(1) In civil cases, the fact that the character of any person concerned is such as to render
probable or improbable any conduct imputed to him is inadmissible except in so far as such
character appears from facts otherwise admissible.

(2) In civil cases, the fact that the character of any person is such as to affect the amount of
damages, is admissible.

Facts otherwise admissible eg Defamation or libel or slander

Subs. (2) is particularly applicable in civil cases involving questions of

exemplary damages, i.e. damages awarded to compensate the plaintiff for what
the court considers deplorable or outrageous conduct by the defendant and (in
effect) by way of punishment for it, and aggravated damages, additional
damages awarded to a plaintiff because the defendant’s conduct was, for
example, willful or malicious. These damages are awarded only in special
circumstances; see LAW OF TORTS

Character in criminal cases

56. Good character in criminal cases

In criminal proceedings, the fact that the person accused is of a good character is admissible.

57. Bad character in criminal cases

(1) In criminal proceedings the fact that the accused person has committed or been convicted
of or charged with any offence other than that with which he is then charged, or is of bad
character, is inadmissible unless—
(aa) such evidence is otherwise admissible as evidence of a fact in issue or is directly relevant
to a fact in issue; or

a) the proof that he has committed or been convicted of such other offence is
admissible under section 14 or section 15 of this Act to show that he is guilty of
the offence with which he is then charged; or
b) he has personally or by his advocate asked questions of a witness for the
prosecution with a view to establishing his own character, or has given
evidence of his own good character; or
c) the nature or conduct of the defense is such as to involve imputations on the
character of the complainant or of a witness for the prosecution; or
d) he has given evidence against any other person charged with the same offence:

Provided that the court may, in its discretion, direct that specific evidence on
the ground of the exception referred to in paragraph (c) of this subsection
shall not be led if, in the opinion of the court, the prejudicial effect of such
evidence upon the person accused will so outweigh the damage done by
imputations on the character of the complainant or of any witness for the
prosecution as to prevent a fair trial.

(2) Notwithstanding the provisions of subsection (1) of this section, evidence of previous
conviction for an offence may be given in a criminal trial after conviction of the accused
person, for the purpose of affecting the sentence to be awarded by the court.

Subsection 1(a) has recently been severely criticized by RUDD Ag. C.J. of Kenya
in Mugo v. R. [1966] E.A. 124 (K) at pp.127 – 128. There the argument was
advanced, on the basis of the wording in the subsection, that where accused
were charged with more than one count, a court should direct itself that any
evidence which that an accused was guilty of an offence on any one of the
counts, was inadmissible and could not be taken into account when considering
any of the other counts, For a fuller understanding of the subsection, the
relevant portions of the decision are set forth at length:-

“With all due respect para (a) of this subsection is very badly phrased and
should be amended as quickly as possible because as at present framed it
departs from the well accepted rules of evidence. It never was the law that
evidence of the commission of similar offences could only be admitted in the
circumstances and for the purposes set out in ss.14 and 15 of the Act where the
defence has not put the accused’s character in issue, yet that is what the
subsection seems to say. If this subsection were to be given a full interpretation
in that sense the result would be farcical.

Suppose a police officer came across a person whom he knew had escaped
from lawful custody while serving a lawful sentence of imprisonment and
suppose that the police officer was murdered by that person while attempting
lawfully to arrest him for escape, then in those circumstances it could never
have been the intention of the legislature to enact that the escape, which is an
offence, could not be proved in order to establish that the attempted arrest was
lawful. Nor would it have been the intention of the legislature to enact that
evidence of the escape could only be admissible on the trial for murder if the
charge or information contained a count for escape as well as a count for
murder.

Again in the case of a prosecution for corruption of a man who, on being

arrested for another offence which he had previously committed, offered a
bribe to the person effecting his arrest in order to obtain his release corruptly,
it could never have been the intention that evidence could not be adduced to
prove the fact of the original offence which is relevant as showing motive for
the corruption under s.8. One could multiply instances of cases where it would
be quite farcical to give s.57 its full meaning according to the words used. The
section cannot have been intended to prohibit evidence of the commission of
an offence other than that charged in all cases except to those where the
evidence is admissible under s.14 or s.15 of the Act. It cannot have been
intended to prohibit such evidence where it is directly relevant to the facts in
issue.

We have no doubt but that the object of s.57(1)(a) was to prohibit evidence of
previous offences where its effect would be merely tendentious. [Having a
proposed tendency; composed of written with such a tendency. A false and
tendentious account of what has happened.] It was intended to prohibit
evidence of previous offences or charges where the only effect of such evidence
would be to show merely that the accused had a tendency or propensity to
commit offences similar to that with which he has been charged and to prohibit
evidence merely of bad character where the accused’s character has not been
put in issue in one of the accepted ways in which that can be done.

The clue to the real intention of the legislature is to be found in the marginal
note to s.57 which reads ‘Bad character in Criminal Cases’. [There here
followed a discussion of the use of marginal notes in construing statutes; see
discussion; Introduction when, therefore, s.57(1)(a) made evidence of previous
convictions and the like inadmissible it was doing so only when the evidence
would merely go to bad character, criminal propensity and the like and it
seems to us that it could not have been the intention to prevent the admission
of evidence of the commission of another offence when such evidence was
admissible as evidence of a fact in issue or directly relevant to a fact in issue.”

The holding of the case in the headnote to the case sets for the proper
construction of the subsection:-

“Held (1)
(2)s. 57(I) (a) of the Evidence Act, 1963, properly
construed in conjunction with the marginal note, was intended to
prevent evidence of previous offences or charges, the accused’s
 character not being in issue, where the only effect would be to
demonstrate a tendency or propensity to commit the offence in
question; consequently the section could not be used to exclude
evidence of the commission of another offence when such
evidence was admissible as evidence of a fact in issue.”

It is well again to note that the above decision emphasises the deeply rotted
and jealously guarded principle of the law of evidence as conceived in
England”, in full force and effect in Kenya, that:-

“It is undoubtedly not competent for the prosecution to adduce

evidence tending to show that the accused had been guilty of
criminal acts other than those covered by the indictment, for the
purposes of leading to the conclusion that the accused is a person
likely from his criminal conduct or character to have committed
the offence for which he is being tried.” Makin’s case, reiterated
in John Makindi v. R. [1961] E.A. 327 (C.A)

The example given by RUDD. Ag. C.J. commencing with the last paragraph on
p.310 is, incidentally, supported by Ndagusas Ole Lelengusi v. R. (1949), 16
E.A.C.A. 155, where the Court said:-

“As regards the criticism that in the cross-examination of the

appellant inadmissible evidence as to previous convictions were
elicited, we refer to section 159 proviso (6)(a) of the Kenya
Criminal Procedure Code. It was necessary to establish that the
action of the police in seeking to arrest the appellant was lawful
otherwise it might not have been murder on the part of the
appellant to resist arrest with violence and the cross-
examination of the appellant [during which the appellant had
admitted he had been sentenced to 18 months imprisonment for
stock theft and had escaped after 2 months] was directed to, and
did in fact, elicit the justification for the arrest of the appellant.”

NOTE: Prior to the enactment of the K.E.A., provisions relating to questions

showing the commission of an offence not charged were found in the Criminal
Procedure Code, s.159(6), Laws of 1948. The subsection read:-

(6) A person charged and called as a witness in pursuance of this section

shall not be asked, and if asked shall not be required to answer, any
question tending to show that he has committed or been convicted of or
been charged with any offence other than that wherewith he is then
charged, or is of bad character, unless -
 a) the proof that he has committed or been convicted of such other offence is
admissible evidence to show that he is guilty of the offence wherewith he is
then charged; or

b) he has personally or by his advocate asked questions of the witnesses for

the prosecution with a view to establishing his own good character, or has
given evidence of his own good character, or the nature or conduct of the
defence is such as to involve imputations on the character of the
complainant or the witnesses for the prosecution; or

c) he has given evidence against any other person charged with the same
offence.

Subsection 6(a) is substantially incorporated in s.57(1)(a); subs. 5(b) in s.57(1)

(b) and (c) and subs.6(c) in s.57(1)(d).

Innuendoes of bad character, as well as direct evidence of bad character, are

inadmissible; Lighton v. R., (1951), 18 E.A.C.A. 309.

Subsection 57(1)(c) involving imputations on the character of the complainant

or prosecution witnesses is subject to limitations. The section does not mean
that any imputation as to character subjects the accused to cross-examination
on his own character. The matter is discussed at length in Rivers Atherstone
Royston v. R., (1953), 10 E.A.C.A. 147, with an examination of English
authorities in as much as proviso 6(b), above, (and hence subs.57(1)(c) are
textually the same as section 13 of the English Evidence Act, 1898. In that case
the Court of Appeal held that:

“Where imputations involving the character of prosecution

witnesses are an integral part of the defence without which the
accused cannot put his case before the jury fairly and squarely,
he cannot be cross-examined on his previous criminal history.”

AINLEY, C.J in interpreting the words of s.57 (1)(c), “the nature or conduct of
the defence is such as to involve imputations on the character of a witness for
the prosecution” noted:-

“Now no strained interpretation should be given to these words,

otherwise the centuries old rule that an accused person may put
forward any defence he wishes without running the risk of a disclosure
of his past misdeed will be largely abrogated. To move a step at a time,
it is surely apparent that to give an account of affairs which differs from
the account given by a witness for the prosecution will not let in
questions and evidence as to character and past convictions against an
accused even if it is apparent that either the accused or the witness
must be committing perjury. CHANNELL, J. in R. v. Preston([1909] 1
 K.B. 575) said in reference to para. (f) of s.1 of the English Evidence Act
1898;

‘The latter part of the section is that which it is material to

consider in the present case. It appears to us to mean this: that if
the defence is so conducted, or the nature of the defence is such,
as to involve the proposition that the jury ought not to believe
the prosecutor or one of the witnesses for the prosecution on the
ground that his conduct – not his evidence in the case, but his
conduct outside the evidence given by him – makes him an
unreliable witness, then the jury ought also to know the
character of the prisoner’

The italics in the passage we have set out are our own. Clearly that
dictum, with which we very respectfully agree, is applicable to s.57 of
our Evidence Act. Provisions of the kind we are considering are no
doubt designed in part to restrain scandalous attacks on honest men by
men of evil character, but the true ratio is surely that suggested by
CHANNELL, J.. Now it must be noted how careful CHANNELL, J. was to
indicate in effect, that to challenge a witness’s evidence is not to conduct
the defence so as to impugn the character of the witness within the
meaning of the provision. How much the less does an accused conduct
his defence so as to let in evidence of bad character if he merely gives an
account of affairs which differs, albeit radically and irreconcilably, from
the prosecution evidence? But then what if he does, having given his
version of the facts. ‘This is what happened, and Mr. X who has said
otherwise is a liar’? Of course, if he goes on to explain that Mr. X is a
notorious liar who has been twice convicted of perjury, then the
mischief is done. But if it is apparent that he is merely asking that his
word should be accepted as against that of Mr X there is surely no
ground whatever for saying that the circumstances envisaged by para.
(c) of s.57(1) exist. A situation has now arisen where in the interests of
justice a jury or a court should know the character of the accused. The
court is faced only with its everyday task of deciding which of two men
is telling the truth. Each has implied or asserted that the other man is
untruthful, but that is all. It is a situation which arises every hour in a
magistrate’s court and every magistrate should know that in a criminal
case he must resolve that kind of conflict without taking a look at the
accused’s prison record. “Omondi v. R., [1967] E.A. 802 (K) at pp. 805 –
806.

Royston v. R., supra, was referred to, and the principles set forth applied, in
Abdulla Katwe v. Uganda [1964] E.A.477 (U) where the court considered a case
where counsel insisted, after warning, in putting questions to a prosecution
witness which indicated that the case against the accused had been fabricated.
On p.479 the Court, in deciding that, under the circumstances, the cross-
examination of the accused on his character was admissible, said:-

“Was the question put by counsel for the appellants to Inspector Kasoro
and the imputations contained in that question necessary to enable the
accused’s defence to be put fairly and squarely before the court?

It was clearly necessary for counsel for the appellants to suggest to the
Inspector that his evidence was untrue. Such a suggestion would not in
my judgment entitle the prosecution to cross-examine the accused or
any of them as to their character. It seems to me, however, that in
suggesting to Inspector Kasoro that he had planted the stones in the
appellant’s car and that he had obscured the number plates with grease
and sand, counsel was going beyond what was necessary to put his
client’s case before the court. None of the appellants, when giving
evidence, said that the police had planted stones in the appellant’s car or
that the police had obscured the number plates of the car. In making
these two imputations counsel for the appellants went beyond what was
necessary for the proper and fair presentation of his client’s case.

In short, then, if the questions raising imputations of character on the part of

the complainant or prosecution witnesses is necessary to put the case fairly
and squarely before the court, cross-examination of the accused on his own
character is not permissible, but if the questioning goes beyond what is
necessary, on the ground that the court ought not to believe the witness owing
to his conduct outside the evidence given, the accused leaves himself open to
the presentation of evidence concerning his own bad character.

Similarly, if the accused himself brings his own bad character into the case,
evidence of his bad character may be presented, but only if one of the
conditions precedent in the section are brought into play. Ali bin Hassan v. R.,
[1960] E.A. 171 involved a situation where the accused, conducting his own
defence, elicited from a police constable during cross-examination the answer
“yes, I know that you have recently come out of jail where you were sent for
being found in possession of big quantity of date wine.” The appellant gave
evidence and said his work was to sell date wine, and the magistrate allowed
cross-examination as to his bad character and previous convictions. The Court
said at pp. 172 – 173:-

From the very first question it was obvious that the appellant was bring
his bad character into issue. At this stage his bad character was
inadmissible in evidence and could have only become relevant in the
unlikely event that it was essential to the appellant’s defence that he
should bring out his bad character. Immediately the magistrate should
have stopped the accused and enquired of him what was his proposed
defence and warned him of the danger he ran in persisting in this line of
 questioning. The cross-examination of the appellant by the police
prosecutor was only defensible if it complied with s.151(f) of the
Criminal Procedure Code. This section supplies an accused with a
shield. An accused is only permitted to throw away this shield in the
case of the three exceptions specified in the sub-section. His remark in
examination –in-chief ‘My work is to sell date wine’ was not sufficient
to bring any of the exceptions into play. He was in fact giving evidence
of his own bad character. He never gave evidence of his own good
character, or questioned any prosecution witness with a view to
establishing his own good character. The nature or conduct of his
defence was not such as to involve imputations on the character of any
prosecution witness. I consider that this line of cross-examination was
indefensible.”

If the attack on the credibility of a prosecution witness is not done with the
object of setting up the good character of the accused, it is not brought under
subs. (1)(b), and it is not proper for the magistrate on those grounds to allow
the prosecution to lead evidence of bad character; see R.V. George Mukasa and
Ali Mukibi, (1947), 6 U.L.R. 165.

What constitutes bad character is, of course, a matter of fact to be determined

in the particular case. For example, a cross-examination of an accused
concerning possession of contraceptives when he was separated from his wife
raised no inference of adultery or bad character on the part of the accused in
Pells v. R., [1958] E.A. 121 (K), whereas in Antonia Bagandasanwa v. R, (1956),
7 U.L.R. 190, 191, evidence that an accused had previously been required to
give security for keeping the peace by reason of his having threatened to shoot
another person, even though not amounting to a previous conviction, caused
the Court to hold that this could not be regarded as other than evidence of bad
character. The determination should be made by the magistrate when the
evidence is elicited in court.

If evidence of the accused’s character is wrongfully admitted, it is generally

held to have occasioned a miscarriage of justice, resulting in the conviction
being quashed . An example is found in Onyango v. Uganda [1967] E.A. 386,
389 (U), where, after quoting s.52 U.E.A. the Court said:-

“There is nothing in the proceedings of the trial of the appellant

to have justified the admission of the learned trial magistrate of
the evidence of his previous conviction for wandering in the
proceedings of this case. The appellant did not cross-examine
the witnesses for the prosecution for the purpose of establishing
his own good character; nor was the conduct of the appellant’s
defence such as to involve imputations on the character of the
complainant or the witnesses for the prosecution; nor was the
 evidence concerning the previous conviction of the appellant’s
concerned in any way with the charge against him for which he
was being tried. The trial magistrate having admitted and relied
upon legally inadmissible evidence against the appellant it is
impossible to hold that the admission of such prejudicial
evidence was not such as to have occasioned a miscarriage of
justice.”

See also R. v. Federi s/o Tamasi, (1920), 2 U.L.R. 377; inadmissible evidence as
grounds for quashing conviction, without discussion, and other cases noted
above.

See also R. v. Nganga s/o Kanja and another (1938), 18 K.L.R. (1) 37 where the
trial magistrate exercised his discretion to exclude evidence of a previous
conviction, even though such evidence was necessary as an ingredient of the
offence (resisting arrest and assaulting police officer in the execution of their
duty) to prove that the officers were, in fact, acting in the exercise of their
duties – arresting the accused who was wanted on a charge of burglary. The
Court held that it had no power to include the evidence previously excluded by
the magistrate, and the conviction was quashed.

Although evidence of a previous convictions is admissible after conviction

under s.57(2) for the purpose of affecting the sentence to be given, the Court of
Appeal in R. v. Gulam Hussein, (1946), 13 E.A.C.A. 167, 168 has expressed the
opinion that it is improper for a prosecutor to make any statement to the court
against a convict which, if challenged, he would be unable to prove by legally
admissible evidence if challenged. (Here the statement concerned a confession
which the accused did not admit and which would have been inadmissible
because of the prohibition of s.25 I E.A).

Previous convictions are only one of the elements to be considered in assessing

sentence. The I.E.A. contained no provision similar to subs. (2) in the
equivalent section - 54. Previous convictions are now subject to proof, but D.D.
Fatakia v. R. is undoubtedly still applicable, wherein the court said (1929), 4
Z.L.R. 136 at 137);-

“confusion arose from the mistaken application of section 54 of

the Evidence Act to an inquiry necessary for the due and careful
exercise of this discretion inferentially entrusted to a magistrate
by criminal provisions which prescribe the imposition of a
punishment within definite but extended limits. When the extent
of man’s liability to punishment has been precisely ascertained,
section 54 of the Evidence Act ceases to have any application to
the proceedings.”
The court then quoted from Ismail Alibhas v. Emperor, 26 I.C. 995:-

“The imposing of sentence is, within the wide limits allowed by

law, a matter of discretion, it is not a matter of proof the law of
evidence does not define, or profess to define, those matters
which a court should consider in using its discretion in passing
sentence.”

This remains true with the exception of the provisions of s.57(2).

If the accused, or the defendant in a civil case, calls witnesses to give evidence
as to his good character, or if the witness is one giving evidence as to bad
character, where admissible, he is in the same position as any other normal
witness:-

148. A witness to character may be cross-examined and re-examined.