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EXAMINATION OF WITNESSES

EXAMINATION-IN-CHIEF

1. Introduction

 The plaintiff bears the obligation to convince the Court of fact of the truth of some
proposition, which is in issue. This is the legal burden of proof. Its significance lies in
the fact that the penalty or failure to discharge this burden is the certainty of failure in
the whole action.
 The legal burden in civil cases rests upon the party who assert the affirmative of an
issue. The rule is ‘he who assert must prove. The standard of proof is on balance of
probabilities. The plaintiff satisfies this legal burden as well as the evidential burden
by calling witnesses.
 In examination-in-chief, the plaintiff will examine his witnesses with the purpose of
eliciting from them all the material facts within their knowledge, which tend to prove
his case.
 The defendant has also to prove any assertions of fact that s/he makes. S/he does this
by calling witnesses or documentary evidence showing that the assertions made by the
plaintiff are incorrect. S/he generally bears no burden of proof unless he makes a
counterclaim or where the law states that he should discharge burden of proof.
Examples of cases where the burden of proof lies with the defendant arises in the
defense of insanity, or intoxication, or in the case a where a public officer did not
receive money as a bribe.

2. Objective and Essence of Examination-In-Chief

The main objective of examination-in-chief is to:

i. Elicit testimonial evidence that will assist the Court in the administering justice;
ii. Introduce undisputed facts;
iii. Enhance likelihood of disputed facts;
iv. Lay foundation for introducing exhibits;
v. Reflect on witnesses’ credibility;
vi. Hold the attention of trier of fact
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2.1 Burden of proof

In civil cases, the proof of case lies with the plaintiff’s counsel to prove their case on a
balance of probability. Whereas in criminal suits, the prosecution bears the burden of proving
their case beyond a reasonable doubt.

3. How to Conduct an Effective Examination-In-Chief

For conducting an effective examination-in-chief, an advocate should:

 identify the issues and relevant facts in his case;

 identify evidence s/he needs to use in his case;
 identify which witnesses, documents or other evidence are available to prove the
evidence;
 call the best witness first as this creates a lasting impression;
 identify which witnesses can authenticate the evidence to make it admissible if s/he
has documents or tangible evidence;
 identify important questions to ask a client and any relevant witnesses in order to
prove the evidence;
 exclude unprovable, implausible, impeachable and door opener facts which lead to the
loss of the case.
 look at the pleadings and any answers to interrogatories, which may have been
obtained to identify the areas of contention in the case;
 arrange a pre-trial conference with a witnesses in order to be able to obtain as much
relevant information from them as possible;
 create sufficient time to discuss with the client and any relevant witnesses in order to
ascertain the evidence they are to give;
 establish a rapport with the client and witnesses in the pre-trial conference;
 explain to client and witnesses how the Court operates and what will happen in the
witness box. It is bewildering and often terrifying experience for most people to
appear in Court, especially if it is for the first time and their future liberty is at stake;
 inform the witness about the position of the Judge and how the Judge is to be
addressed;
 explain to them on administration of the oath or affirmation by the Court officer;
 explain to them the way you intend to ask questions and try to provide some outline of
what they will likely be asked in cross-examination;
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 have witness prepare a sketch or diagram before the advocate during pre-trial
conference in case they are to be used in Court;
 evaluate the character and strength of the witnesses and determine what sort of effect
they are likely to have on the Judge. Witnesses whose personality, recollections and/or
prior history is questionable should be avoided and where it is inevitable that they
have to be called, an advocate should try keeping their evidence to the bare minimum,
and sit down as soon as an advocate get out of them the required information.
Witnesses with a clear recollection of the relevant events can to some extent be
allowed to tell their own story.
i. Start strong and end strong;
ii. Not ask leading questions;
iii. Be dramatic and persuasive;
iv. Not interrupt the action (flow of the story);
v. Give each detail separate attention;
vi. Affirm a point before refuting;
vii. Not go on a fishing expedition in examination-in-chief;
viii. Not argue while examining a witness not attempt to force a favorable
answer;
ix. Ensure that the factual content of a witnesses‘ evidence doesn‘t come
from him/her;
x. Ask all material questions in the first instance and if he fails to do so, it
cannot be done in reply;
 Ensure that the answer a witness gives to a question during the examination must be
based upon a point of fact and not a point of law.

4. Evidence Tendered in Examination-In-Chief

The witnesses an advocate calls must enable the advocate achieve the objectives of
examination-in

chief. The key objectives are to ensure that the evidence the witness presents to Court should
be:

a) Admissible;
b) Legally sufficient to meet the burden of proof;
c) Understood and remembered;
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d) Able to create a logical, complete and clear picture of the case;

e) Convincing, persuasive and credible;
f) Able to withstand cross-examination;
g) Anticipatory and contradictory of evidence that the defence will present;
h) Logical, complete and coherent theory of an advocate’s case;
i) Used to support another so that a seamless cloth may be woven of the proven
fact.

5. Legal Requirements for an Examination-In-Chief

5.1 Competency of your witness

A witness must be competent to testify. To qualify as competent, a witness must:

i. Understanding the nature and obligation of the oath or affirmation to tell the truth;
ii. Have knowledge of the relevant event;
iii. Recollect (memory) the relevant event; and
iv. Have the ability to communicate.

5.2 Orally in an open Court

Order 18, Rule 3 of the Civil Procedure Rules, 2010 provides that the evidence of the
witnesses in attendance shall be taken orally in an open Court in the presence of and under
the personal direction and superintendence of a Judge.

5.3 Procedure under criminal law

The following are the provisions in relation to examination-in-chief under the Criminal
Procedure Code, Cap. 75:

i. Part 6: Procedure of trials before Subordinate Courts

ii. Part 9: Procedure of trials before the High Court.
iii. Section 208(1): If an accused person does not admit the truth of the charge, the Court
shall proceed to hear the complainant and his witnesses and other evidence (if any).
iv. Section 300: An advocate for the prosecution shall open the case against the accused
person, and shall call witnesses and adduce evidence in support of the charge.
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5.4 Leading questions

Section 150 of the Evidence Act, Cap 80 provides that leading questions should not, if
objected to by the adverse party, be asked in an examination-in-chief or in a re-examination,
except with the permission of the Court. Exceptions - the Court can only permit leading
questions as to matters which:

a) Are introductory or undisputed: An advocate will generally know from pleadings or

committal papers what is in dispute;
b) Have in its opinion been already sufficiently proved;
c) Have been consented upon with the opponent agrees: Sometimes, there are parts of a
case where little is in issue. Thus, to save time, both parties may agree in advance;
d) Contain indisputable facts: Some things are obvious and incontrovertible and
everyone knows them to be true. An advocate can ask leading questions in such
matters;
e) An advocate expects to get a denial: An advocate can ask leading questions in such
matters since there is no choice. For e.g., were you in KFC Restaurant on the night of
June 3rd 2017? Yes or No.
f) Where the witness is hostile to the examiner, or reluctant or unwilling to testify.
Section 149 of the Act defines the term ‘leading question’ as any question suggesting
the answer which the person putting it wishes or expects to receive, or suggesting a
disputed fact as to which the witness is to testify. For example, Were you at Duffy's
bar on the night of April 20th 2017? The answer is either a "yes" or "no." The same
question in a non-leading form may be, Where were you on the night of April 20th
2017?

5.5 Relevance of a witness' testimony

 A witness' testimony must be relevant.

5.6 Authenticity of matters of evidence

 This will show that the item in question is what its proponent claims it is.
5.7 Proper evidentiary foundation or predicate for the admissibility of the evidence
 Certain items of evidence require special foundations to establish admissibility. For
e.g., if the evidence is hearsay and thus, presumptively inadmissible prima facie, such
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evidence can only be admissible if it is established under one of the hearsay

exceptions.

6. Strategies to be Invoked n Examination-In-Chief

An advocate may employ the following strategies in order to achieve the goals and objectives
of carrying out an examination-in-chief:

 Short, open questions: An advocate should avoid compound questions and instead
ask short, open questions.
 One fact per question: An advocate should also ask one fact per question.
 Use transitional questions: An advocate should question that are transitional in
nature.
 Use body movements: to explain an important point.
 Outline: The entire process of examination-in-chief must look impressive and
spontaneous.
 Eye contact: An advocate must maintain an eye contact with the Judge/Magistrate.
 Clarity: The questions put to the witnesses should be clear, only one new fact to
each question.
 Ambiguous questions: An advocate should avoid vague and ambiguous questions.
 Build evidentiary bridges: There should be a connection between witness evidence
presented before the Court.
 Phrases: There should be proper use of phrases to connect the matter in issue.
 Stressing of important things: An advocate should stress/repeat on certain
important issues.
 Witness character: An advocate should try to mirror the good characteristics of a
witness in an effort to build his/her credibility.
 Foundation for exhibit: An advocate should authenticate and lay a solid
foundation for any exhibit to be produced. This enhances persuasion of a Judge
and further ensures smooth introduction of tangible exhibits.
 Witness’ personal knowledge: An advocate should ensure that an expert witness
speaks from personal knowledge while, lay witnesses can give lay opinions based
on their personal perception but they should not draw conclusions that call for
specialized knowledge.
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 Potential cross-examination questions: An advocate should deflate, rebut, or ask

potential questions which may crop up during cross examination.
 Open ended questions: An advocate should utilize open ended questions (non-
leading questions) in addressing important parts of the case, for instance, the use
of words i.e., what, when, who, where, why and how helps in description of an
issue.
 Try to conserve time: Time can be conserved by eliminating unnecessary
discussions.
 Controlling witnesses: An advocate should control witnesses by either directly
advising that for e.g., that Magistrate is writing, or by using hand gestures for e.g.,
hand up – stop, hand down – continue.
 Use visual aids.
 Avoiding negative, lawyerly, complex questions.
 Using simple language and vocabulary.
 Be organized.
 Voice projection: An advocate should be laudable in the Court and the pace s/he
adopts should be consistent. Pausing whenever necessary is important.
 Focusing on relevant matters.
 Ensuring good delivery of points.
 Having passion for the case
 Facial expressions and posture should be superb.
 Avoidance of distracting gestures and verbal habits.

CROSS EXAMINATION

1. Introduction
 Section 145(2) of the Evidence Act, Cap 80 defines the term ‘cross-examination’ as the
examination of a witness by an adverse party. In other words, it is the questioning of a
witness by a party other than the one who called him to testify.
 Cross examination is preceded by examination-in-chief. In some instances, cross-
examination can be after re-examination, whereby the witness is questioned again by the
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prosecutor or party who called the witness to clarify points brought up in cross-
examination which might be damaging to the his case.
 Cross-examination ensures that the trial is fair and that information is truly out.
2. Types of Cross Examination
 Supportive (concession based) cross–examination: This type of cross-examination is
employed when an advocate intends to ask questions and get answers that support and
advance his/her case.
 Discrediting cross-examination: This occurs when an advocate attempts to discredit the
believability of a witness’ factual testimony by showing that it doesn‘t match with
common sense and/or with what others say. It can be used to show what the witness does
not know and to impeach the witness.

3. Statutory Basis

3.1 Fair Hearing

Article 50(2)(k) of the Constitution of Kenya, 2010 provides that every accused person has
the right to a fair trial which includes the right to adduce and challenge evidence.

3.2 Power to order Discovery

Section 22(b) of the Civil Procedure Act, Cap 21 provides that the Court on its own motion,
or on application by a party to issue summonses to persons who are required to produce
evidence or be examined on the documentary evidence they have given.

3.3 Objection

Order 18, Rule 6 of the Civil Procedure Rules, 2010 provides that where any question put to a
witness is objected to by a party or his advocate, and the Court allows the same to be put, the
Judge shall take down the question, the answer, the objection, and the name of the person
making it.

3.1 The Criminal Procedure Code, Cap. 75 provides

3.4 Right to summon Witnesses, or Examine person present

Section 150 provides that that the prosecutor, or the advocate for the prosecution, or the
defendant, or his advocate shall have the right to cross-examine any person, and the Court
shall adjourn the case for such time (if any) as it thinks necessary to enable the cross-
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examination to be adequately prepared if, in its opinion, either party may be prejudiced by the
calling of that person as a witness.

3.5 Putting the accused to his Defence

Section 211 (1) states that at the close of prosecution case, if the Court finds the accused
person has a case to answer, it will put the accused to his defence and if he chooses to give
evidence on oath in the witness box he will be cross-examined on evidence given so will his
witnesses.

3.6 Cross-examination of Witnesses for Prosecution

Section 302 of the CrPC provides that the witnesses called for the prosecution shall be
subject to cross-examination by the accused person or his advocate, and to re-examination by
the advocate for the prosecution.

3.7 Case for the Defence

Section 307(1) of the CrPC provides that the accused person may give evidence on his own
behalf and he or his advocate may examine his witnesses (if any), and after their cross-
examination and re-examination (if any) may sum up his case.

3.8 The Evidence Act, Cap. 80 provides:

a) Witness to character
Section 148 provides that a witness to character may be cross-examined and re-
examined.
b) Leading questions
Section 149 and 151 provides that any question suggesting the answer which the
person putting it wishes or expects to receive, or suggesting a disputed fact as to
which the witness is to testify, is a leading question. Leading questions may be asked
in cross-examination.
c) Cross-examination as to previous written statements
Under Section 153, a witness may be cross-examined as to previous statements made
by him in writing or reduced into writing and relevant to matters in question.
d) Cross-examination as to credibility
Section 154 and 163 a witness may be asked questions to:
 Test his accuracy, veracity or credibility;
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 Discover who he is and what is his position in life;

 Shake his credit, by injuring his character, although the answer to such questions
might tend directly or indirectly to incriminate him or might expose or tend directly or
indirectly to expose him to a penalty or forfeiture.
 Bolstering a client’s case: Not all cross examination is directed towards discrediting or
impeaching a witness. An advocate can use the witness to ratify the important aspects
of a client‘s case.

4. Risks in Cross-Examination

a) Witness may become uncooperative or hostile.

b) Witnesses may add strength and sympathy to adversary’s case.
c) Witness may decide to fill in gaps.
d) The risks are cured by re-examination.

5. The Law of Cross-Examination

An advocate should:

(i) Be brief;
(ii) May ask leading questions;
(iii) Limit to what was said in examination-in-chief except where credibility of a
witness is in issue. In other words, where an advocate establishes that a witness’
given evidence during examination-in-chief is not. However, if a witness’
testimony is harmful to an advocate’s case, then in cross-examination an advocate
should seek to challenge his/her evidence as being inconsistent, improbable or
unrealistic.
(iv) Avoid arguing with witness (instead insist on an opinion, not fact);
(v) Not intimidate by gestures, shouting, badgering, bullying;
(vi) Not mislead the witness (by using tricky questions);
(vii) Not assume (or fill in) facts;
(viii) Avoid compound questions;
(ix) Not get personal;
(x) Not angry when a witness does not want to agree with the advocate, or when a
witness misunderstands the questions, or s/he gives evasive answers, etc.
(xi) Stop when s/he gets what he wants;
(xii) Never ask a witness to ‘explain’ or ‘why’ of for ‘help’ in cross-examination;
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(xiii) Reserve comments for submissions;

(xiv) Ask one thing at a time;
(xv) Not “put it to “ a witness;
(xvi) Not ask bounce off answer on a witness to trier of fact.

6. Purposes of Cross-Examination

It is meant to:

(a) Repair or minimise damage;

(b) Enhance one’s case;
(c) Detract the opponent’s case;
(d) Establish foundation for a document;
(e) Discredit evidence given in chief;
(f) Discredit the witness as a person;
(g) Reflect on credibility of another witness.

7. Organization Principles in Cross-Examination

 Cross-examination is telling a client’s story through the opponent.

 It is not time to get new information; it is to enhance or establish facts an advocate
already has.
 An advocate should:
i. Work through innuendo and implication;
ii. Not necessarily have to start strong;
iii. Use topical organisation;
iv. Give details first and then build up incrementally;
v. Scatter the circumstantial evidence: An advocate should not show a witness
the killer weapon s/he has;
vi. Spare the points s/he wants to make for the end;
vii. Ensure that the last point is admissible, central to the theory of a case, evoke
the theme, undeniable;
viii. Start with a conviction.
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8. Classic Format for Cross-Examination

 Start friendly by asking non-threatening questions.

 Affirmative questions should then be asked i.e., questions that build an advocate’s
case, not destroy opponent’s.
 Information that cannot be controverted should then be asked.
 Information that challenges should then be asked.
 Hostile information which confronts a witness directly should then be asked.

9. Guidelines to an Effective Cross-Examination

9.1 Preparation

Proper preparation is the key to success in cross-examination. Proper preparation involves

collecting as much background information on the circumstances as possible from the client.

It also involves a thorough reading of the pleadings, charge-sheet, witness statements to the
police, as well as a perusal and examination of the various reports, documents and exhibits
that the prosecution intends to rely on. A properly prepared cross-examiner:

i. is able to lead a witness down a pre-selected path to obtain vital information to

his/her case or defence;
ii. understands which points s/he ought to rebut and have his own theory of the case;
is able to devise a strategy for use in case an unexpected response arises;
iii. will jot down the points of cross-examination rather than the whole questions
themselves;
iv. will take note of the behavior and answers being given by the witness.

9.2 Having a goal for effective cross-examination

A person carrying out cross-examination must identify and keep in mind the goal s/he intends
to establish in his cross-examination. The primary goals of cross-examination may include
pointing out the inconsistencies in the witness testimony, impeaching the witness, using the
witness to corroborate the facts in one’s client’s case, etc.

9.3 Having a plan for cross-examination

The best effective method of reaching the goal of cross examination is by having a plan to be
used in establishing the basic points to be established in cross-examination. It also helps in
identifying possible areas which must be covered in cross-examination. Cross-examination
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questions should be planned and organized in units (segments/blocks) by subject matter

rather than in the chronological order often used with direct examination.

9.4 Keeping it Simple

When devising a plan for cross-examination, it must be kept simple. An advocate should not
include complicated questions to the witness as this may only lead to confusion. Repetition of
each answer as a preface to the next question breaks the rhythm of the cross-examination.

9.5 Control of a Witness

An advocate should ask leading questions to take control of a witness. S/he should ensure that
such questions are all answered by the witness. Open ended questions i.e., why, who, what
should be avoided as it gives the witness control of the answer.

9.6 Knowing the Rules

Cross-examination is conducted within the ambits of the rules of evidence. It is therefore,

important to follow the rules of admissibility of evidence so as to maneuver without
technicalities like objections from the opposing counsel.

9.7 Stopping when Necessary

An advocate should start cross-examination on a high note and finish strong since the
attention of the Judge/Magistrate is usually at the beginning and towards the end. Once you
have made the significant point, end the cross-examination.

10. Techniques for Cross-Examination

An advocate should:

a) Ask short, open questions: An advocate should remember that s/he has the attention of
the Court. S/he should try to make a witness explain and verify facts which then
reveals weaknesses in the facts s/he earlier stated.
b) Avoid compound questions;
c) Ask leading questions.
d) Use propositions i.e., put across to a in interrogative form a fact s/he already knows;
e) Be organized;
f) Focus on relevant matters;
g) Ensure good delivery of the matter;
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h) Have passion for the case;

i) Use simple language and vocabulary;
j) Ensure facial expressions and posture is superb;
k) Avoid distracting gestures and verbal habits;
l) His/her voice is well projected;
m) Maintain eye contact;
n) In planning:
 avoid reading pre-written questions;
 use an outline, topic, sub-topics, e.g., i.) normal day - morning, afternoon,
evening; ii) day of incident - morning, time of incident; iii) events at scene -
weather conditions; which people were present; their temperament; iv) post
incident - who came; reporting to authorities; treatment.
o) Form of questions: An advocate should ask incremental questions, or a sequence of
questions to establish an impact, or to show a relationship, or to “scatter” a witness, or
to get a commitment, or to create an “enclosure” from which a witness cannot escape.
Besides, an advocate should listen to a witness and insist on an answer. Further, an
advocate should repeat similar basic questions in a different way to get different
responses which can be used against a witness. However, if the questions are too
repetitive as to make the witness nervous, the opposing attorney may accuse the cross-
examiner of badgering the witness.
The following are questions that can lead to trouble:
 Non-leading questions.
 Why’ or explanation questions;
 ‘Fishing’ questions in a hope of getting something.
 Long questions where a witness forgets what was being asked.
 ‘Gap’ questions meant to fill an intermediate issue.
 Using ‘you testified’ repeatedly.
 Characterizing and making conclusions.
p) Regaining control: Where witness:
 has refused to agree: determine why s/he has refused to agree i.e., an advocate may
be wrong on facts, otherwise go back to basic, agreed on facts.
 is out to explain: determine why are they out to explain, or ask a totally new question
to move on.
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 is uncooperative: ask for help of the Judge/Magistrate, or keep asking that the
question, or confront them with their won words.
q) Adopt the following starting lines for cross-examination:
 You agree with me …
 It is true …
 Confirm that …
 You have testified that …
 It is your evidence that …
 It is a fact that …
 .......... that is true?
 .......... that is correct or isn’t it so?
r) An advocate should keep cross-examination to only points which support his/her
theory of the case.
This strengthens an advocate’s argument. Moreover, s/he should keep the strongest
points at the beginning and at end of cross-examination since these are the points
likely to remain in the mind of the Judge/Magistrate.

RE-EXAMINATION, EXHIBITS AND IMPEACHMENT

1. Exhibits: Statutory Basis

1.1 Admitted documents forms of suit record

Order 14 Rule 3 of the Civil Procedure Rules, 2010 provides that every document
admitted in evidence shall form part of the record of the suit.

2. The Criminal Procedure Code, Cap 75 provides

2.1 Procedure on plea of not guilty

Under Section 208(1), if the accused person does not admit the truth of the charge, the
Court shall proceed to hear the complainant and his witnesses and other evidence (if
any).

2.2 Opening of case for prosecution

Under Section 300, the advocate for the prosecution shall open the case against the
accused person, and shall call witnesses and adduce evidence in support of the charge.
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3. The Evidence Act, Cap 80 provides

3.1 General restriction of admissibility of evidence
Under Section 5 of the Act, no evidence can be given in any suit or proceeding except
evidence of the existence or non-existence of a fact in issue, and of any other fact
declared by any provision of the Act to be relevant.
3.2 Admissibility of Documentary evidence as to Facts in issue
Under Section 35 of the Act in any civil proceedings where direct oral evidence of a
fact would be admissible, any statement made by a person in a document and tending
to establish that fact shall, on production of the original document, be admissible as
evidence of that fact if the maker of the statement:
i. Had personal knowledge of the matters dealt with by the statement; or
ii. Is called as a witness in the proceedings. However, there is no need to call
the maker of the statement if s/he is dead, or cannot be found, or is
incapable of giving evidence, or if his attendance cannot be procured
without an amount of delay or expense which in the circumstances of the
case appears to the Court unreasonable.
3.3 Entries in books of account
Under Section 37, entries in books of account regularly kept in the course of business
are admissible whenever they refer to a matter into which the Court has to inquire.
3.4 Entries in public records
Under Section 38, an entry in any public or other official book, register or record,
stating a fact in issue or a relevant fact, and made by a public servant in the discharge
of his official duty, is admissible.
3.5 Statements, etc., in maps, charts and plans
Under Section 39, statements and representations of facts in issue or relevant facts
made in published maps or charts generally offered for public sale, or in maps or
plans made under the authority of any Government in the Commonwealth, are
admissible.

3.6 Statements of fact contained in laws and official gazettes, etc

Under Section 40, when the Court has to form an opinion as to the existence of any
fact of a public nature, any statement of it shall be admissible which is made in any
written law of Kenya, or in any notice purporting to be made in pursuance of any such
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written law, where the law or notice (as the case may be) purports to be printed by the
Government Printer.
3.7 Statements as to law contained in books
Under Section 41, when the Court has to form an opinion as to a law of any country,
any statement of such law contained in a book purporting to be published under the
authority of the Government of such country and to contain any such law, and any
report of a ruling of the Courts of such country contained in a book purporting to be a
report of such rulings, is admissible.
3.8 Proof of contents of Documents
Under Section 64, the contents of documents may be proved either by primary or by
secondary evidence.
3.9 Photographic evidence—admissibility of certificate
Under Section 78, in criminal proceedings a certificate given under the hand of an
officer appointed by order of the Director of Public Prosecutions, who shall have
prepared a photographic print or a photographic enlargement from exposed film
submitted to him, shall be admissible.
3.10 Electronic Records
Part 7 of the Act provides that the contents of electronic records may be proved in
accordance with the provisions of Section 106B of the Act.
4. Steps of Admission of Exhibits
An advocate should:
i. Lay the foundation: One can state for instance, ‘you have earlier testified
about …’
ii. Show the exhibit to the Judge, as it be marked for identification (For civil,
refer to page in bundle);
iii. Show opponent’s counsel, ask if s/he has any objection;
iv. Ask a witness how s/he recognises/identifies it.
v. Production/tendering (ask MFI for it to be marked as Exhibit). The
marking is done by Court Clerk.
vi. Use the exhibit (get the meat out of it).
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5. Re-Examination
5.1 introduction
 Re-examination is a way of saying that the cross-examination has some weaknesses.
Thus, its purpose is to:
(a) Correct the mistakes made in cross examination;
(b) Salvage a case;
(c) Clarify confusing points;
(d) Try and shift the Court‘s probable inference by explaining a distorted
testimony to favor one’s case.
 The general principles are like that of examination-in-chief (see above).
 Open ended questions are asked at this stage.
 If a witness has done irreparable damage during cross-examination, an advocate
should not re-examine.
 If a counsel wishes to introduce something new during re-examination, s/he must first
seek leave of Court.
 Re-examination is completely optional. An advocate does not need to do it at all.
 Limitation: Questions are asked on only issues that arose in cross-examination.
6. Statutory Basis of Re-Examination
6.1 Power to Summon Witnesses, or Examine person Present
Section 150 of the Criminal Procedure Code, Cap 75 provides that a Court may, at
any stage of a trial or other proceeding under the Code, summon or call any person as
a witness, or examine any person in attendance though not summoned as a witness, or
recall and re-examine a person already examined, and the Court shall summon and
examine or recall and re-examine any such person if his evidence appears to it
essential to the just decision of the case.
6.2 Cross-examination of Witnesses for Prosecution
Under Section 150 of the CrPC, a witnesses called for the prosecution shall be subject
to cross-examination by the accused person or his advocate, and to re-examination by
the advocate for the prosecution.
6.2.1 Case for the Defence

Section 307(1) of the CrPC provides that the accused person may give evidence on his
own behalf and he or his advocate may examine his witnesses (if any), and after their
cross examination and re-examination (if any) may sum up his case.
 19

6.2.2 Like in examination-in-chief

a) Witness must be legally competent to testify;
b) An advocate should use non-leading questions (open ended).
c) Not testify in narrative;
d) Generally offer fact, not opinion;
e) Witnesses can refresh their memory;
f) An advocate should also:
(i) Look at the credibility and explanations given by a witness;
(ii) Exclude unprovables, implausible, impeachables, door openers, etc.
(iii) Be organized;
(iv) Focus on relevant matters;
(v) Ensure good delivery;
(vi) Have passion for the case;
(vii) Use simple language and vocabulary;
(viii) Ensure facial expressions and posture is superb;
(ix) Avoid distracting gestures and verbal habits;
(x) Maintain eye contact
(xi) Ensure his/her voice is well projected.
7. Impeachment of Witnesses
 Impeachment of witnesses refers to challenging the credibility of a witness. A witness
may be impeached in the following ways by the adverse party or with the consent of
the Court, by the party who calls him:
a) Bias: An witness may show where s/he has an interest in the outcome of the
case. An advocate should be able to point out this.
b) Mental or physical impairment: This may affect a witness’ ability to perceive,
recollect or link facts.
c) Contradiction in the testimony.
d) Prior inconsistency: This is by proof of former statements, whether written or
oral, inconsistent with any part of his evidence which is liable to be
contradicted.
e) Character: Perhaps where the witness is a habitual liar.
f) Previous convictions.
g) By the evidence: of persons who testify that they, from their knowledge of the
witness, believe him to be unworthy of credit.
 20

h) By proof that the witness has been bribed: or has accepted the offer of a bribe,
or has received any other corrupt inducement to give his evidence.
7.1 Procedure for Impeachment: [The three Cs of impeachment, alternatively, the
three Rs]
7.1.1 Confirm

The particular aspect of the testimony that the witness gave in Court in the evidence-
inchief. This is done by asking the witness to repeat the relevant part of the testimony
(Repeat)

7.1.2 Credit

The witness by way of establishing the reliability of the document that you are about to
use to impeach the witness. Ask questions tending to show that the document you are
about to refer to is a reliable document. Read the statements in the document yourself and
ask the witness to confirm the veracity of your reading (Reliability of the document).

7.1.3 Confront

The witness with the inconsistent statement (Read verbatim).

d) Don’t add “E” (Explain).

CLOSING ARGUMENT/STATEMENT

1. Introduction
 Closing argument is a trial lawyer’s final statement to the fact finder in which s/he
asks the Court to consider the evidence and find for them. This is the moment to
persuade the Court to rule in his/her favour.
2 Statutory Basis on Closing Argument/ Statement
2.1 Statement and production of evidence

Order 18, Rule 2 of The Civil Procedure Rules, 2010 provides that after the party having
the right to begin states his/her case, the other party shall then state his case and produce
his evidence in reply, and may then address the Court generally on the case. The party
beginning may then reply. The court may in its discretion limit the time allowed for
addresses by the parties or their advocates.
 21

2.2 Order of speeches

Section 213 of the Criminal Procedure Code, Cap. 75 provides that the prosecutor or his
advocate and the accused and his advocate are entitled to address the subordinate Court in
the same manner and order as in a trial before the High Court

2.3 Close of Case for Prosecution

Section 306(1) and (3) of the CrPC also provides that when the evidence of the witnesses
for the prosecution has been concluded, the Court, if it considers that there is no evidence
that the accused committed the offence shall, after hearing, any arguments which the
advocate for the prosecution or the defence may desire to submit, record a finding of not
guilty. Where the accused person says that s/he does not intend to give evidence, or make
an unsworn statement, then the advocate for the prosecution may sum up the case against
the accused person.

2.4 Case for the Defence

Section 307(1) of the CrPC provides that the accused person may give evidence on his
own behalf and he or his advocate may examine his witnesses (if any), and after their
cross examination and re-examination (if any) may sum up his case.

2.5 Where accused adduces no Evidence

Section 311 of the CrPC provides that if the accused person says that he does not intend
to give evidence and the Court considers that there is evidence that he committed the
offence, the advocate for the prosecution shall then sum up the case against the accused
person, and the Court shall then call on the accused person personally or by his advocate
to address the Court on his own behalf.

3. Nature of Closing Argument

 It is an argument, b) It is post the fact, c) It is based on what has been adduced
(evidence, exhibits).
4. Role Of Closing Argument/ Statement
It is meant to:
(a) Consolidate all the evidence that has been adduced;
(b) Link together the components of the trial;
(c) Argue out the case from the client’s perspective;
 22

(d) Make the prayer of what an advocate is seeking;

(e) Tell the entire story without interruption and constraining formalities;
(f) Its success depends on success of previous stages of trial;
(g) It must complement opening statement and reflect and encompass the
evidence in the case.
5. Theory, Theme and Story arc of Closing Argument/ Statement
5.1 Theory

The theory should be:

(a) logical

An advocate should show movement from fact to conclusion;

(b) believable

This is by being based on admissions by opposite side, undisputed facts, common

sense and experience and credibility of witnesses;

(c) legally sufficient: It must address both the law and the facts.

5.2 Theme in closing argument

An advocate should:

 Have it constantly present in closing argument;

 Start with it; use it in each segment;

 Avoid it becoming a monotonous by repetition.

 Theme serves role of moral persuasion.

5.3 Story arc in closing argument

The story arc:

 Establishes client as the centre of the whole story;

 Takes advantage of human desire for equilibrium and order;

 Engages fact finder as the “hero” to rectify the disruption and save client from
further injustice. Example: “Things were fine, everything going on well ... . In
 23

between, something drastic and disruptive happened. The Court needs to restore
the client as far as is possible to the state before the disruption.”

6. Elements of the Closing Argument

i. Conclusions:

 It flows from the evidence.

ii. Inferences:

 A deduction drawn from a known fact.

iii. Details and circumstantial evidence

 that was earlier gathered in examination in chief and in cross examination.

iv. Analogies:

 An advocate should draw from everyday human behaviour. Comparison to widely

understood experience or activity. Caution: S/he should ensure they are “air tight”

v. Allusions

 A literary reference to add to persuasive force. In past mostly drawn from Shakespeare
and the Bible.

vi. Stories

 To humanize the client.

vii. Credibility and Motive

 Closing argument is an opportunity to comment on and compare motive and credibility

of a witness. It is here that one can refer to what came from impeachment. Besides, one
can compare the testimony that came from different witnesses. Motive can be
commented upon from either what came out directly as a fact or from a logical inference.

viii. Weight and Evidence

Here an advocate will assert why:

 One version is preferable to another;

 Some facts should be accepted and others rejected, and

 24

 One piece of evidence is stronger than the other.

Ix. Demeanour

This is based on an observable fact. An advocate can point out i.e., the delay or refusal to
answer question; the sudden loss of composure (fidgeting) and sudden loss of temper.
However, since it is based on perception, an advocate need to bear in mind that the fact finder
may get a different perception.

X. Refutation

 This is an opportunity to refute opposing positions. An advocate can thus point out errors,
inconsistencies, implausibilities and contradictions.

Xi. Application of the law

An advocate needs to apply the law to the facts. This is the most extensive part of trial when
talking about the law.

Xii. Moral Appeal

It is explaining how and why a client’s position makes sense. This is the moment an advocate
elaborates on the moral theme of the case. It expounds of the shared values, civic virtues and
common motivations,

7. Steps in Closing Argument

 Issues

 Rule (Law)

 Application of the law

 Conclusion.

8. Structure of Closing Argument

8.2 Topical organisationt

 Issues - Factual and legal issues.

 Elements - If Criminal, elements of charge. If Civil, the elements of Negligence.

 If applicable, what instructions Judge gave to Jury or to the assessors.

 25

 What is the turning point of the case

 Alternative structure – a) Chronological, b) Witness listing.

8.3 Other Organizing tools

 Start strong, end strong by following the principle of primacy.

 Affirmative case first – An advocate should build his/her own case first.

 Cluster circumstantial evidence - An advocate should accumulate details.

 An advocate should “bury” (minimize) his/her concessions in the middle of the

argument;

 An advocate should weave witness credibility in the story

 S/he should address the damages due to client if is a claim for damages case.

9. Content of Closing Argument

9.1 Tell a persuasive story

a) Known facts - what happened?

b) Reasons - why did it happen?

c) Credible witnesses - who should be believed?

d) Supportive details - how can we be sure? Common sense - Is it plausible?

e) Tie up cross-examination.

f) Comment on promises made during opening statement.

g) Resolve problems and weaknesses.

h) Discuss damages.

10. Delivery and Technique in Closing Argument

An advocate should:

a) Start strong, disclose weaknesses in the middle and end strong: by following the
principle of primacy and recency. An advocate should tell the Judge how strong his/her
case is and show him why he deserves to win.
 26

b) Not read or memorise: S/he should try to minimize how much time s/he spends looking
at notes;

c) Maintain eye contact: S/he should make sure that s/he is making eye contact with the
person s/he wants to persuade (Judge).

d) Use an outline as prompts;

e) Use body and hand movements to make emphasis;

f) Avoid aimless pacing or distractive movement;

g) Change speed, tone, inflection, volume. S/he should not be too quick or too loud;

h) Not be insincere;

i) Use emotion at moral dimensions of the case;

j) Use visual aids e.g., weapons, models, photographs, maps, charts, maps and samples;

k) Use headlines i.e., negligence, damages;

l) Use simple, active language;

m) Theme: An advocate should use determined theme and persuasively articulate his/her
theory of the case;

n) The law: An advocate should show knowledge of the law by: a) arguing the law
effectively, b) appropriately citing persuasive authorities, c) acknowledging opposing
authorities, d) distinguishing it,

o) or argue for change in the law.

p) Prayer: S/he should tell the Court what s/he wants but, not beg. In a criminal case, s/he
should ask for an acquittal or a conviction. An advocate should remember that s/he is
asking for justice and not sympathy.

q) Witnesses: argue the credibility of witnesses and if they are many, s/he should put them
in clusters. Link the cross-examination and impeachment.

r) Show why he should win: based on the evidence produced, or by relating the facts to the
law

s) Be organized.
 27

t) Voice projection: An advocate should be laudable in the Court and the pace s/he adopts
should be consistent. Pausing whenever necessary is important.

u) Focuse on relevant matters;

v) Ensure good delivery of points;

w) Avoid distracting gestures and verbal habits;

x) Have passion for the case;

y) Facial expressions and posture should be superb.

11. Ethics in Closing Argument

An advocate should avoid:

 Asserting personal beliefs;

 Appealing to prejudice or bigotry - racial, religious, ethnic, gender

discrimination;

 Misstating the evidence;

 Misstating the law;

 Misusing evidence;

 Appealing to Jury/Fact finder’s personal interest;

 Appealing to emotion, sympathy, passion - basing on stereotypes, physical

appearance.
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OBJECTIONS

1. Introduction

 An objection is generally a motion asking a Judge to exclude evidence that the other side
is seeking to offer.

An objection may be:

i. By an interjection when proceedings are on-going mainly during examination-in-chief or

cross examination;

ii. In the form of a motion seeking that the entire suit be not entertained. This is referred to
as a ‘preliminary objection (P.O)’;

iii. Raised by an accused person in a trial on indictment. This is referred to as ‘objection to

indictment.’

The accused may object on legal grounds i.e.,

Where the indictment contravenes or fails to comply with the law, or on a breach of the
fundamental right of an accused person prior to arraignment in Court.

This is raised by an application to quash the indictment or to declare the trial a nullity.

2. Purpose and Function of Objections

Objections are utilized in a trial to:

a. Ensure that parties prosecute and defend their cases in accordance to the law.
This is both on procedural and substantive law;

b. Ensure that witnesses give evidence without intimidation or harassment by the

opposing advocate;

c. Help to predicate error on a court‘s evidentiary ruling;

d. Help to prevent a court from entertaining a matter that it ought not to;

e. Ensure that the court does not entertain a trial that is otherwise a nullity;

f. Strike out defective pleadings;

g. Preclude inadmissible evidence from being presented to Court.

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3. Statutory Basis to Objections

a) Fair hearing

Article 50 of the Constitution of Kenya, 2010 also provides that lack of detail in Charge.
failure by prosecution to provide evidence wish to rely on in advance, offence not being a
crime at time was committed, autrefois acquit or convict, may call for objection.

b) Objections to jurisdiction

Section 16 of Civil Procedure Act, Cap. 21 provides that no objection as to the place of suing
shall be allowed on appeal unless such objection was taken in the court of first instance and
there has been a consequent failure of justice.

c) Res Judicata

Section 7 of the Civil Procedure Act, Cap. 21 provides that no Court shall try any suit or issue
in which the matter directly and substantially in issue has been directly and substantially in
issue in a former suit between the same parties, or between parties under whom they or any of
them claim, litigating under the same title, in a Court competent to try such subsequent suit or
the suit in which such issue has been subsequently raised, and has been heard and finally
decided by such Court.

d) Questions objected to and allowed by Court

Order 18, Rule 6 of the Civil Procedure Rules, 2010 provides that where any question put to a
witness is objected to by a party or his advocate, and the Court allows the same to be put, the
Judge shall take down the question, the answer, the objection, and the name of the person
making it.

e) Grounds of opposition to application in High Court

Order 51, Rule 14(1) provides that any respondent who wishes to oppose any application may
file any one or a combination of the following documents:

 A notice preliminary objection: and/or;

 Replying affidavit; and/or

 A statement of grounds of opposition.

 30

f) Defectiveness of Charge

Section 134-137 of the Criminal Procedure Code, Cap.75 provide that failure to disclose
offence; failure to provide particulars; duplicity may call for objection.

4. Timing, Making of Objections

In deciding whether or not to object, the qualities of a good trial advocate will come into play
and more particularly the following:

i. Stand, state the grounds for objecting

This is very important.

ii. Clarity of thought and language:

An advocate must have clarity of thought and language so as to be able to put forward and
respond to objections clearly and logically in Court.

iii. Confidence and Courage

An advocate should be confident and put up a civilized warfare in defending or raising a trial
objection rather than sit back without putting up a fair fight.

iv. Alertness

An advocate must be alert during trial so as to point out when to raise an objection. S/he
should also know when to expect objections against his/her client. This virtue is achieved by
keenly following evidence and being alert to the mind of the Court.

v. Preparedness

To be able to alleviate situations of surprise in the event that a trial objection is raised against
a client‘s case, an advocate needs to be well prepared. Moreover, by researching the law well,
s/he gets to raise informed and timely trial objections.

vi. Professionalism

This demands that an advocate knows the rules of practice and evidence so as to prevent
objections against his/her ill advised choice of action. The rules of ethics and conduct also
come in handy to enable one raise well founded objections in a respectful and professional
manner. Besides, professionalism ensures that advocates do not raise objections actuated by
 31

malice. Objections raised solely for the purpose of slowing down, impeding justice or
protecting witnesses is unethical.

The advocate should not raise emotions against the other or go personal. The manner and
tone of language to be used in raising the objection is important. An advocate ought to rise up
and politely but confidently say such words as … “your honour, counsel is leading the
witness.

vii. Sound Judgment:

It enables an advocate makes appropriate tactical decisions as to when or not to raise

objections, or how to respond to objections. Raising objections should not be too early or too
late. An advocate ought to be able to think on his/her feet. S/he should make a quick cost
benefit analysis, to avoid a situation where s/he wins the battle but ends up losing the war.

5. Factors to consider in deciding whether or not to object

a) Relevance

An advocate should look at the opposing party’s proposed evidence to determine whether it
tends to prove the existence or non-existence of a fact in issue.

b) Reliability

Second hand information, for example hearsay, would normally be excluded since it is not as
reliable as first hand information. Section 63 of the Evidence Act provides that oral evidence
must in all cases be direct evidence i.e., evidence that a person who claims has seen, heard,
etc.

c) Legality

Evidence which is relevant but is obtained illegally may be objected to. For instance, a
confession that is illegally obtained in criminal cases will not be admissible as evidence. A
confession obtained by inducement, threat or promise will also not be admissible, unless to
the opinion of the Court, such inducement, threat or promise is removed.3

6. Responding to Objections

 Most of the time, a Judge will rule without hearing from opposing counsel. However, a
Judge may invite the counsel to respond and may:

i. Call for substantive arguments on the point;

 32

ii. Call for a specific response;

iii. Rule that there will be limited admissibility;

iv. Conditionally admit evidence based on offer by advocate to avail a witness or

explanation. An advocate should watch out for non-responsiveness by the trier of fact.

 If an advocate’s opponent objects, an advocate should:

a. Just pause, think, respond and wait for the ruling; or

b. Rephrase the question if the matter is absolutely or obviously necessary so as to

avoid the objectionable material; or

c. Smoothly transition to another section of the testimony.

d. Repeat the entire question for the witness for clarity purpose if an opponent’s
objection is overruled.

7. Preparation and Procedure

i. Objections ought to be timely and specific

This means that an objection should be raised before the inadmissible evidence is produced
and should be specifically attributed to a particular issue, statute or rule of evidence.

ii. In respect to preliminary objections

A party must file and serve a notice of the preliminary objection.

In civil cases, a defence may have a paragraph to the effect that the defendant shall raise a
preliminary objection at the hearing thereof on some stated grounds. That serves as sufficient
notice. Service of the application to strike out a suit or pleading preliminarily also serves as
notice of the preliminary objection.

iii. Parties are then given an opportunity to argue at the appointed time

The Court thereafter gives a ruling thereon, either overruling or sustaining the preliminary
objection. Any aggrieved party is at liberty to appeal within the time stipulated and in
accordance with the law.
 33

iv. In respect to trial objections

the party wishing to raise the objection does so by simply standing and stating, “Objection,
your honour/lordship.” An advocate should then succinctly explain why the trial objection is
well founded. The Court will either rule on it immediately or require a response from the
other party before ruling. This process should take place with utmost respect and with the use
of a polite language.

v. An advocate needs to have a rapid cognitive recognition

Rapid cognitive recognition entails:

 Firstly, researching on the matter or listening to the question/issue raised;

 Secondly, recognizing a potential objection;

 Thirdly, deciding whether to make the objection, and

 Finally, making the objection.

8. Arguing the Objection

An advocate:

i. Can raise it from the bar;

ii. Can request to raise it in camera;

iii. Let the objector raise it, listen if judge will ask the other to respond;

iv. Avoid a two way argument between counsels that excludes the Judge and address the
objection to the Court;

v. Deliver it with conviction;

vi. Ensure there is a ruling on it, so that have it on record in case of appeal. Once ruling is
made:

 For the one objected to: It is important to realise that is not the end; there is still a trial
going on, remain alert, ensure the question is answered, especially if objection led to an
interruption.

 For the objector: Remain alert and continue to scrutinize the testimony.
 34

9. Decisions on Objections

The court is required to make and give a decision on objections. For:

a) Preliminary Objections

The issues canvassed will usually require more time and research before a decision is arrived
at. The Court will thus give the parties some date when it thinks fit to have a written ruling;

b) Trial Objections

The Court ought to make ruling instantly for purposes of expediency. This does not however
preclude the Court from deferring the ruling to a given date. What is important is the weight
of the objections both on legal and factual issues.

In Republic v. Robert Gilbert Cholmondeley, the prosecution moved the Court under Section
60 of the Constitution for an order directing the defence to make a full disclosure of their
witnesses, statements and copies of certain forensic reports that the defence intended to
produce. The defence objected to the motion on the ground that such a motion intended to
infringe the constitutional rights of the accused and that no reciprocity existed to warrant the
defence discloses their witnesses and statements as the prosecution was required to do. The
Judge adjourned the proceedings as he retired to consider a ruling.

a) execution matters in civil cases

Objections raised in relation to execution in civil cases, the Court makes the decision after
due consideration of the arguments propounded by the parties and the evidence. This requires
more time before ruling depending on the weight of the case.

10. Common Objections

For proper understanding, it is important to classify objections into three categories, namely:

10.1 Preliminary Objections

These are objections raised before the substantive matter is heard and determined on merit,
only on a point of law. They can be raised where a:

 Pleading is defective for want of form;

 Pleading breaches a mandatory statutory provision;

 Suit is time barred.

 35

A preliminary objection may be raised by a party in his/her pleading, pursuant to Order 6,

Rule 7 of the Civil Procedure Rules, 2010.

Under Order 50, Rule 1, a party may raise a preliminary objection by way of a Notice of
Motion. Section 16 of the Civil Procedure Act, Cap 21 requires that one makes an objection
as to the place of suing in the Court of first instance since failure to do so, no such objection
shall be allowed on appeal. It is important to note the following on preliminary objections:

10.2 Preliminary Objections must be on a point of law

The Court of Appeal in Mukisa Biscuit Manufacturing Co. Ltd. v. West End Distributors
Ltd.,1 observed that a preliminary objection consists of a point of law which is clear and
beyond doubt and which has been pleaded, or which arises by clear implication out of
pleadings and which if argued as a preliminary point may dispose of the suit.2 No preliminary
objection can thus be raised if any fact has to be ascertained or if what is sought is the
exercise of judicial discretion.

10.3 Particulars of preliminary Objections must be stated

Where a party indicates that s/he intends to raise an objection on a point of law, s/he must
state the particulars of the statutory provision upon which s/he relies to raise the objection.

10.4 Notice of preliminary Objection

Any party who intends to raise a preliminary objection must give a sufficient and reasonable
notice to the other party.3 The requirement of notice is not however necessary in matters
before the Court of Appeal since matters before such Court are prosecuted in accordance to
the Court of Appeal Rules.

10.5 Purpose of preliminary objection

Preliminary objections:

 Ensure that parties file their cases and defend the same in accordance to the
mandatory requirements of the law;

1
(1969) EA 697.
2
See, Natin Properties Limited v. Jaggit Singh Kalsi & Another, Court of Appeal Civil Appeal No. 132 of
1989
3
Udson Liase Walibwa v. Attorney General, NBI HCCC No. 2714 of 1987
 36

 Prevent abuse of the process of Court. This may arise in instances where a party files
a defense that is a mere sham and fraught with mere denials.

10.6 Examples of preliminary objections

A preliminary objection may be raised:

 On the ground that the Court lacks jurisdiction to entertain the matter;

 As to the place of suing. This must be raised in the Court of first instance;

 Where there is pending suit relating to the same parties and the same subject matter is
before a Court of competent jurisdiction

 Where the matter of the same facts between the same parties has previously been
determined by a competent Court (res judicata).

 Where pleadings offend the rules of procedure on form and substance i.e., where a
Notice of Motion is filed instead of Chamber Summons, or where a suit is commenced
by way of a plaint instead of an Originating Summons;

 Where a suit is time barred. However, under the Limitation of Actions Act a party wishing
to institute the same must first apply for the leave of the Court. Once leave is granted,
then the party will be at liberty to file the matter.

10.7 Trial objections

These are broadly categorized into two:

 Form objection and;

 Content Objection

10.7.1 Form objection

This deal with non-substantive issues. It relates to the procedure of the trial and is intended to
remedy the manner in which an advocate questions a witness. For instance, an advocate
asking a question that:

a) Is ambiguous or unintelligible

 It is objectionable on the ground that it may take on more than one meaning;
 37

b) Is argumentative

 This is a question asked to call for an argument in an answer and merely asks a witness
to concede to inferences;

c) Has been asked and answered

 This is raised when a witness has already answered a substantially similar question asked
by the same advocate on the subject matter;

d) Assumes facts not in evidence

 This is a question, which presumes unproved facts to be true. For e.g., when did you stop
beating your wife? This is an assumption that one actually beat his wife, particularly
where the actual act of beating has not been proved.

e) Is compound

This is where an advocate joins two or more questions ordinarily with the use of the words
‘or’ or ‘and’;

f) Is too general, broad, or indefinite

if it permits the witness to respond with testimony, which may be irrelevant or otherwise
inadmissible;

g) Is leading

This is a question that suggests the answer the examining party desires;

h) Misstates the evidence or misquotes the witness: A question may misstate or misquote
the testimony of a witness. Where the advocate adds or alters a statement from the
witness, then one should be quick to object to the same as misquoting the witness;

i) Calls for a narrative answer: This is a question that invites the witness to narrate a
series of occurrence, which may provide irrelevant or otherwise inadmissible testimony;

j) Calls for speculation: This is a question, which invites or causes a witness to speculate
or answer on the basis of conjecture. It asks a witness to guess the answer rather than to
rely on known facts i.e., where a witness is asked to give an opinion while s/he is not an
expert;

k) Is indecent and scandalous: Under Section 159 of the Evidence Act, Cap 80, a Court may
 38

forbid any question or inquiry which it regards as indecent or scandalous, although such
questions or inquiries may have some bearing on the questions before the Court, unless they
relate to facts in issue or to matters necessary to be known in order to determine whether or
not the facts in issue existed.

10.7.2 Content Objections

These relate to substantive evidence, either oral or documentary evidence. An advocate may
invoke the applicable rules of evidence to exclude either the witness's anticipated answer or
the introduction of an exhibit. Examples include:

i. A question that invites hearsay: As a general rule, hearsay is inadmissible. Oral

evidence must in all cases be direct evidence. The Evidence Act gives exceptions to the
hearsay rule. These include evidence of dying declarations, expert opinions and
documentary evidence of official records. Where such an exception does not exist, an
advocate should object to questions inviting such evidence.

ii. A question that is irrelevant or immaterial This is a question whose intent and purport
is to elicit evidence which does not relate to facts in issue or relevant facts. The trial
advocate should therefore ensure that he predicts that kind of evidence that may come
forth from a witness and consider whether the same is relevant and admissible before
raising an objection.

iii. Inadmissible opinion A witness may be called to give an opinion. Section 48 of the
Evidence Act, Cap 80 requires that where the Court invites a person to give an opinion
upon a point of foreign law, or of science or art, or as to identity or genuineness of
handwriting, or finger or other impressions, opinions upon such point are admissible if
made by experts.

iv. Improper impeachment An advocate can ask a question that impeaches on the
credibility of a witness. However, an improper impeachment especially of character or
which may be annoying, indecent and scandalous cannot be allowed.4

4
see, sections.157 and 159, the Evidence Act, Cap 80. Section 154 of the Act provides that a witness
may be cross-examined to test his accuracy, veracity or credibility; to discover who he is and what is
his position in life; or to shake his credit, by injuring his character, although the answer to such
questions might tend directly or indirectly to incriminate him or might expose or tend directly or
indirectly to expose him to a penalty or forfeiture
 39

v. Excluding secondary evidence Section 67 of the Evidence Act, Cap 80 provides that
documents must be proved by primary evidence unless secondary evidence is admissible
under the Act. An advocate may therefore object to secondary evidence where its
admission is not provided for.

vi. Inadmissible parole evidence Section 98 of the Evidence Act states that no oral
evidence may be given to contradict a written agreement. In case a witness is asked to
give oral evidence which would in the circumstances contradict a written agreement,
then an objection may be sustained.

vii. Illegally obtained evidence A party will not be allowed to give evidence that was
procured illegally.

viii. Evidence that may threaten State security The Official Secrets Act, Cap 187 provides
for the preservation of State secrets and State security. An advocate may object to
evidence which in the circumstances may threaten State security, or would in the
circumstances lead to disclosure of State secrets. An illustration is where investigations
on Angloleasing were barred on the ground that they tended to question the manner in
which the Departments of defence of Kenya carried on its business.

ix. Re-examination on matters not raised in cross-examination: An opposing party can

raise an objection in that regard.

x. Best Evidence Rule This requires the most original source of evidence available. For
example, instead of asking what the contents of a document are, one should ask for and
look at the actual document itself.

xi. Instances of badgering This is where the opposing party is antagonizing a witness to
provoke a response. Section 160 of the Evidence Act gives the Court the discretion to
forbid any question which appears to it to be intended to insult or annoy, or which,
though proper in itself, appears to the Court needlessly offensive in form.

xii. Introducing character evidence when it has not been brought in issue In simple
terms, the fact that the accused committed prior offences does not necessarily mean s/he
committed the present offence. Each case should be treated independently on its own
merits without prejudice to the accused. However the accused may bring his or her
character in issue, for example, by alleging good conduct.
 40

xiii. Non-responsive answer: This is when a witness is evading a question and is not really
answering it.

xiv. Nothing pending An objection may be raised normally when a witness continues
speaking on irrelevant matters to a question posed.

xv. Privileged information As a general rule, evidence which is privileged will not be
admitted in evidence. Where the law protects a witness from answering questions which
relate to some privileged information, then unless that protection ceases to exist, no
question may be asked in respect thereof. A good example is the: a) doctor-patient
privilege, b) privilege not to testify against spouse,12 c) advocate-client privilege, 13 d)
privilege of official communication, 14 e) privilege for identity of informer,15 f)
privilege against self-incrimination.

xvi. Post-trial objections: Objections during execution proceedings: A trial may have been
conducted in which an advocate’s client was not a party to but the same affects his/her
client’s property in the execution stage. An advocate must definitely object. ‘Post-trial
objections’ are thus objections that arise during execution proceedings of a civil case.
They are brought under Order 21, Rules 53-59 of the Civil Procedure Rules, 2010. The
party who objects to the proceedings is called an objector.17 The objecting party takes
out an application by way of ‘summons in chambers’ in the same suit in which the
application for attachment was made. This must be supported by an affidavit. The
application once filed must be served upon the judgment creditor and if the court so
directs, upon the judgment debtor. Such summonses operate as a stay of attachment
unless otherwise ordered. Once this is done, the parties will argue their case if the
judgment creditor still desires to proceed with execution and the court thereafter makes a
ruling on the same. The purpose of these objections is to ensure that attachment and
execution of decrees are not done on goods, which are not otherwise the judgment
debtor’s.
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