(This report was also published in the August 18, 2008 Edition of the Daily Nation Newspaper (page 14 column 1) under the heading 'Convict spoils appeal by raising issue of 'his bad character'")
Court of Appeal at
R.S.C. Omolo, E.O. O’Kubasu & J.W. Onyango Otieno JJ.A
July 18, 2008
When the High Court examined the record of the trial court during its consideration of Osman’s first appeal, it found that there was no basis for interfering with the trial court’s findings of fact and its application of the law. The conviction and sentence were confirmed, prompting Osman to lodge a second and final appeal in the Court of Appeal, this time with the benefit of legal counsel in the person of Francis Kadima. Among the grounds raised in his second appeal, Osman’s advocate argued that the witness had wrongly brought the question of Osman’s character in issue because he (Osman) had not raised it. He further submitted that the trial court ought not to have admitted the bad character evidence and that the court should have prevented Osman from asking the questions regarding his character or it should have at least restrained the witness from answering them.
The Court of Appeal agreed that it was an established principle of our criminal justice system that the evidence of an accused person’s previous bad character is inadmissible unless the accused himself has put his own character in issue. In the circumstances of this case, the Court observed that it was obvious from the record of the proceedings in the trial court that it was Osman who had put his character in issue in his mode of questioning during the cross-examination of the witness. It was Osman who had asked the questions that had led to the answers touching on his character. The Court of Appeal regretted that the trial magistrate had failed to caution Osman about asking such questions but noted that the witness was bound to answer them and Osman could not complain at the appeal stage about an issue which he had “brought upon himself”. Ultimately, the Court of Appeal ruled that there was nothing in the complaint raised by Osman that could not justify the reversing of the decision of the High Court.
Furthermore, upon a consideration of rest of the evidence, the Court of Appeal was satisfied that Osman had been properly convicted and that the charge against him had been established beyond reasonable doubt. Osman’s appeal was therefore dismissed.
The writer is an advocate and the Assistant Editor of the