SECTION 57 EVIDENCE ACT CAP 80

Section 57 states that:

(1) In criminal proceeding the fact that the accused person has committed or been convicted of
or charged with offence other than that which he is then charged or is of bad character, is in
admissible unless-

(aa) Such evidence is otherwise admissible as evidence of a fact in issue or is directly

a) The proof that he has committed or been convicted of such other offence is admissible
under section 14 or section 15 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 defence 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) 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), 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. 1

Bad character should be proved beyond reasonable doubt for it to be admissible in court. 2

In the case of R v Mitchell (Northern Ireland) the Respondent was convicted of the murder of her
former partner Anthony Robin on May 11, 2009. At the trial, she did not dispute that she had
stabbed Mr Robin, but said she had acted in self- defence. She claimed that she had been provoked
and that she did not have the intention to kill him or cause him really serious harm. 3

The Prosecution applied to adduce evidence of the Respondent’s previous bad character for the
purpose of showing that she had character for the purpose of showing that she had a propensity to
use knives in order to threaten and attack others. The evidence related to two incidents in 2003 and
2007 in which she was said to have threatened and stabbed others with knives. None of the previous
alleged incidents had resulted in a conviction. It was agreed between the prosecution and the
Defence that statements which contained details of the earlier incidents would be read out during
the trial. The trial judge directed the jury to take that evidence into account or leave it out of

1
The Evidence Act cap 80 s 57.
2
www.kenyalaworganisation.com accessed 28 January 2017
3
R V Mitchell (Northern Ireland) [2016].
account or leave it out of account as they considered appropriate, but not to make any assumptions
based on it as the Respondent’s guilt.

On appeal the Respondent argued that the trial judge had failed to direct the jury properly on the
purpose of the bad character of the standard of proof to which the jury had to be satisfied before
they could have taken it into account. The Court of Appeal allowed her appeal quashed the
conviction and ordered a re- trial. At the re-trial the Respondent pleaded guilty to manslaughter and
was acquitted of murder.

The prosecution appealed to the Supreme Court against the quashing of the murder conviction.

ISSUES

1. Whether a jury could carry out a preliminary evaluation on the truth and accuracy of the
matters alleged before the question of the existence of propensity was examined.
2. Whether it was necessary to prove bad character evidence beyond a reasonable doubt
before a jury could take into account in determining whether a defendant was guilty or not.

Held

1. At common law, as a general rule, evidence of the bad character of an accused person was
not admissible in a criminal trial. There were exceptions to that however, and one was
similar fact evidence. An early and notable example of the admission of this type of evidence
was the case of Makin v Attorney General for New South Wales where the court while
acknowledging the general rule stated that in appropriate circumstances it was legitimate to
have allowed evidence to be admitted which was relevant to an issue in the case. 4

RELEVANCE TO KENYAN POSITION

Under Kenyan law the burden of proof in criminal cases is requires to be beyond reasonable doubt.

Section 57 of the Evidence Act gives situations where bad character evidence can be admissible in
criminal cases and they include: where such evidence is otherwise admissible as evidence of a fact in
issue or is directly relevant to a fact in issue, where the proof that he has committed or been
convicted of such other offence is admissible under section 14 or section 15 of the Act to show that
he is guilty of the offence with which he is then charged, 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, the nature or conduct of the defence is such as to involve
imputations on the character of the complainant or of a witness for the prosecution or he has given
evidence against any other person charged with the same offence.

However the court has discretion to direct that specific evidence on the ground of the exception
referred to in section 57(1) (c) of shall not be led if, in its opinion the prejudicial effect of such
evidence upon the person accused will 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.

4
Makin v Attorney General for New South Wales
Section 57 (2) of the act as stated above provides that the 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.

The evidence Act is silent on the standard of burden of proof required to prove bad character.
Various courts have handled matters touching on bad character evidence.

In Ndabi v Republic, Criminal Appeal No 875 of 1986, the Court held that in consideration of
conviction, the allegation without more evidence that other offences have been committed, even if
admissible under the Evidence Act, would be more prejudicial to the accused than probative at all
and should have been excluded by the learned trial magistrate on that basis. 5

The court then went on to hold that the same argument applied whether one was referring to
section 57(1) or section 57 (1) (a) of the Evidence Act. The court further stated that when dealing
with an unequivocal plea of guilty such evidence was not necessary for such purpose, and would,
and should have rightly been excluded for that purpose.

In Republic v Thomas Patrick Gilbert Cholmondeley, Criminal case 55 of 2006, the court held that it
had allowed discretion to give the prosecution to go ahead to attack the character of the accused
since the defence had attacked the character P.W.5. However, in exercise of that discretion under
section 57 of the Evidence Act, the court directed that evidence of the past character of the accused
was not admissible because the prejudicial effect of such evidence upon the person accused would
outweigh the damage done by imputations on the character of the P .W.5 to prevent a fair trial. 6

This case brings out the need for the standard of proof required in order for bad character evidence
to be admissible in court to be made certain.

5
Ndabi v Republic, criminal appeal no 875 of 1986
6
Republic v Thomas Patrick Gilbert cholmondeley, criminal case 55 of 2006