Sunday, August 17, 2008

WHEN BAD CHARACTER EVIDENCE MAY BE ALLOWED

By Michael Murungi

(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'")

August 2008

Mohamed Hassan Osman v Republic [2008] Eklr (www.kenyalaw.org)

Court of Appeal at Mombasa

R.S.C. Omolo, E.O. O’Kubasu & J.W. Onyango Otieno JJ.A

July 18, 2008

The Court of Appeal has reiterated that the evidence of an accused person’s previous bad character may not be adduced against him unless he has himself brought the matter of his character in issue in the trial. Accordingly, a court which is presiding over a criminal trial should warn an accused person who unwittingly raises the issue of his character that he could be waiving the protection given to him by the rule barring the prosecution from calling damning evidence of his criminal record.

The Court made the remarks in a judgment in the case of Mohamed Hassan Osman who had appealed against his conviction and sentence of death for the offence of robbery with violence. Osman had been tried and convicted in the Senior Resident Magistrate’s Court at Mombasa for having participated in the 1998 bank robbery at the Housing Finance Company of Kenya Ltd (HCFK) in Mombasa. Among the various witnesses called by the prosecution, the eight had been an eye-witness to the robbery. He had told the court that on the day of the robbery, he had seen Osman, who was well known to him, walking out of the bank with a pistol in one hand and a bag slung back over his shoulder. Osman had reportedly winked at the witness and muttered to him “kauka”, a popular street term which the witness understood to mean as a discrete command to stay put or keep quiet.

The witness testified that Osman was his neighbour in a residential estate of Mombasa and that he had led the police to Osman’s house where he was arrested. It appears that Osman did not have the benefit of legal representation during his trial and that he might have unwittingly asked a question during his cross-examination of the witness which brought in issue the question of his general character. In answer to that question, the witness had stated: “I knew you for two years prior to this incident. You live ten blocks away from my house. You are a well known person in that area. You are a criminal and people fear you as such..”.

While conducting his defence, Osman had conceded that he knew the witness but he told the court that the witness’s had been motivated by a grudge to falsely testify against him.

The trial magistrate found that the witness was credible and that Osman had been identified through recognition by a person known to him. This evidence, considered together with the rest of the prosecution’s case, led the trial court to find that the prosecution had established the guilt of Osman beyond reasonable doubt, and Osman was sentenced to death.


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 Kenya Law Reports.

1 comment:

Sir George K said...

Good ruling and sound Judgment there in the circumstances. But I would think that with our New dispensation( Constitution of Kenya 2010) Osman is guaranteed of legal representation at the expense of the State, where substantial injustice would otherwise result. This has been interpreted by the High Court to include instances of Capital offences,which offences include Robbery with Violence.This would ensure that the accused does not give incriminating evidence against himself, a fundamental right under The Bill of Rights(Chapter Four) at Article 50, on fair hearing of cases.