Group 7 evidence:

RUGENGE WA NCIKO- LAW/M/0660/05/23

KENAYA KOMBA - LAW/M/0658/05/23

JOSHUA YUVINALIS ONDITI - LAW/M/0398/05/23

QUINCY AWUOR OYANGO- LAW/M/0340/05/23

TANUI PURITY CHEMUTAI- LAW/M/0626/05/23

BUSIENEI IVY CHERONO- LAW/M/0514/05/23

Question: How does the court treat expert evidence? Taking two experts evidence
examples, tell what time does the court accept expert evidence or not ?

Definition:

Expert evidence is a neutral opinion from an expert in a specific field that is presented to help a
court or jury reach a decision. In addition, expert evidence is information and opinions from an
expert that is likely to be outside the knowledge of the average person. It can help with a variety
of issues, such as the mental state of an accused, the nature of a financial transaction, or the
mechanical condition of a vehicle.1

Who provides it.

An expert witness is someone who has the knowledge, skills, experience, or training to provide
expert evidence. For example, a doctor might testify about their reading of an x-ray.2

How it's used

1
Criminal Trial Courts Bench Book, ‘Expert evidence’ available at<<
https://www.judcom.nsw.gov.au/publications/benchbks/criminal/expert_evidence.html#:~:text=Expert
%20evidence%20is%20admitted%20to,which%20the%20expert%20evidence%20relates. >> Accessed on 07
November 2024.
2
Criminal Trial Courts Bench Book, ‘Expert evidence’ available at<<
https://www.judcom.nsw.gov.au/publications/benchbks/criminal/expert_evidence.html#:~:text=Expert
%20evidence%20is%20admitted%20to,which%20the%20expert%20evidence%20relates. >> Accessed on 07
November 2024.
Expert evidence is presented as part of all the evidence in a case. It can help the court or jury
reach a decision, but they are not required to accept it. They can also take into account their own
experiences and common sense.3

Evidence Act (Cap. 80) Provisions

In Kenya, the Evidence Act allows expert opinions on matters that require specialized
knowledge, such as science, art, foreign law, or technical subjects, but mandates that only
qualified individuals provide such testimony. 4 This section 48 of the Act is applied to assess
whether an expert witness has the necessary credentials to offer valuable insights.

Admissibility and Inadmissibility

Under the common law, for expert opinion to be admissible it must be able to provide the court
with information which is likely to be outside the courts' knowledge and experience, but it must
also be evidence which gives the court the help it needs in forming its conclusions. The role of
the experts is to give their opinion based on their analysis of the available evidence. The court is
not bound by that opinion, but can take it into consideration in determining the facts in issue.

In Christopher Ndaru Kagina v. Esther Mbandi Kagina and Tabitha Ikambi Kagina (2016)
eKLR, two experts provided conflicting evidence regarding the authenticity of certain documents
that were claimed to be part of the deceased’s estate:

Emanuel Kenga (Plaintiff's Expert):

Kenga was a document examiner who analyzed signatures on various transfer documents related
to properties in dispute. He testified that the signatures on these documents did not match known
samples of the deceased's signature, implying that the transfers were fraudulent.

District Land Registrar (Defendants' Expert):

3
Criminal Trial Courts Bench Book, ‘Expert evidence’ available at<<
https://www.judcom.nsw.gov.au/publications/benchbks/criminal/expert_evidence.html#:~:text=Expert
%20evidence%20is%20admitted%20to,which%20the%20expert%20evidence%20relates. >> Accessed on 07
November 2024.
4
Evidence Act (Cap. 80),section 48.
The District Land Registrar testified that the transfers were in order, had been executed with the
proper documentation, and were validly registered according to land office procedures. He did
not find any indication of forgery in the records.

Court's Decision on Expert Evidence

The court ultimately gave more weight to the testimony of the District Land Registrar and
rejected Kenga’s evidence. The judge found that Kenga’s report lacked sufficient foundational
evidence and did not meet the required standards of proof to establish fraud. The Registrar’s
evidence was seen as credible and consistent with procedural requirements, leading the court to
rule that the disputed properties were validly transferred and part of the estate.5

According to Justice Mativo, the expert must be able to provide impartial, unbiased, objective
evidence on the matters within their field of expertise. He found useful guidance from a passage
from a judgment by Sir George Jessell MR in the case Abringer v Ashton where he described
expert witnesses as "paid agents." Almost 100 years later Lord Woolf joined the list of critics of
expert witnesses in his Access to Civil Justice Report, when he said:-

“Expert witnesses used to be genuinely independent experts. Men of outstanding eminence in their field. Today they
are in practice hired guns. There is a new breed of litigation hangers-on, whose main expertise is to craft reports

which will conceal anything that might be to the disadvantage of their clients .”

The aforementioned is the reason towards, the court still has the discretion of deciding when
such expert opinion are inadmissible.

The case of HG v The Queen (1999) HCA 2 is an Australian High Court decision that addresses
the admissibility and role of expert evidence in criminal proceedings. It set a significant
precedent for the use and evaluation of expert evidence, focusing on the need for clear relevance,
expertise, and impartiality from the expert witness.

Case Facts:

The appellant, HG, was convicted of sexual offenses against his stepdaughter. During the trial, a
psychologist provided expert testimony supporting the credibility of the complainant's account,
despite there being no physical evidence. HG's defense argued that the psychologist's testimony

5
Christopher Ndaru Kagina v. Esther Mbandi Kagina and Tabitha Ikambi Kagina (2016) eKLR
was inappropriate as it went beyond simply explaining behavior and implied that the
complainant was telling the truth.6

Legal Issue:

The primary issue was whether the psychologist's evidence was admissible. Specifically, the
court examined if the expert's testimony intruded on the jury's role in assessing the credibility of
the witness and whether it adhered to the standard for expert evidence.

High Court's Decision:

The High Court ruled that the psychologist’s evidence was inadmissible because it did not meet
the required standards for expert testimony. The court emphasized that an expert's role is to assist
the jury in areas beyond their ordinary understanding, not to offer opinions on the truthfulness of
a witness’s account, which is the jury's role to assess.

The court clarified that expert testimony must stay within the bounds of specialized knowledge
and avoid infringing upon issues that are meant to be the jury's determination, particularly
credibility.7

Principle Established:

The court established that expert evidence is only admissible if:

 The subject matter is outside the ordinary experience of the jury and requires specialized
knowledge.
 The expert does not offer opinions that directly address the truthfulness of the evidence
presented.
 The expert's opinion should be based on specialized knowledge and should assist the jury
rather than replace the jury’s own assessment.8

Importance of the Case:

The HG v The Queen decision reinforced the boundaries for the use of expert evidence, ensuring
that experts provide information rather than influence or direct jury decisions on credibility. It is

6
HG v The Queen (1999) HCA 2
7
HG v The Queen (1999) HCA 2
8
HG v The Queen (1999) HCA 2
often referenced to clarify the distinction between assisting the court with specialized insights
and improperly opining on factual determinations reserved for the court or jury.

In conclusion, it is important to bear in mind the criteria a court should use to weigh the
probative value of expert evidence. This is because, while expert evidence is important evidence,
it is nevertheless merely part of the evidence which a court has to take into account. Four
consequences flow from this as reiterated by this court in the case of Stephen Wang'ondu Vs
The Ark Limited.9

Firstly, expert evidence does not “trump all other evidence.” It is axiomatic that judges are
entitled to disagree with an expert witness. Expert evidence should be tested against known facts,
as it is the primary factual evidence which is of the greatest importance. It is therefore necessary
to ensure that expert evidence is not elevated into a fixed framework or formula, against which
actions are then to be rigidly judged with a mathematical precision.

Secondly, a judge must not consider expert evidence in a vacuum. It should not therefore be
“artificially separated” from the rest of the evidence. To do so is a structural failing. A court’s
findings will often derive from an interaction of its views on the factual and the expert evidence
taken together. The more persuasive elements of the factual evidence will assist the court in
forming its views on the expert testimony and vice versa. For example, expert evidence can
provide a framework for the consideration of other evidence.

Thirdly, where there is conflicting expert opinion, a judge should test it against the background
of all the other evidence in the case which they accept in order to decide which expert evidence
is to be preferred.

Fourthly, a judge should consider all the evidence in the case, including that of the experts,
before making any findings of fact, even provisional ones.10

9
Stephen Wang'ondu Vs The Ark Limited.
10
Christopher Ndaru Kagina v Esther Mbandi Kagina & another [2016] eKLR