Similar facts evidence is evidence of previous or subsequent acts which are similar to the facts in issue or relevant facts. Similar facts evidence is admissible when the facts are similar to those under consideration. There has to be a convincing connection or similarity of what the person did. When considering similar fact evidence the following should be considered: Is it relevant? Can the offence be proved without similar facts evidence? What other purpose does the evidence serve other than cause prejudice against the accused person?
In the case of Paul Nakwale Ekai vs Republic (1981), the appellant was convicted on the basis of two separate robbery incidences he was linked to. The facts of the case denote that on the day of the murder of Mrs Joy Anderson, one of 3 trunks of boxes in Mrs Anderson’s tent had been forced open. One containing a cash box had been opened using a bar taken from the workshop within the camp. Further, the intruder had escaped through an animal enclosure.
3 weeks before the murder, there was a robbery incident at the camp conducted in a similar manner. The trunk containing the cashbox had been forced opened with the same bar taken from the workshop in the camp. The intruder in that previous occasion had gone out through the animal enclosure, just like in the murder.
Similar facts evidence was used because the evidence of the previous act of robbery was similar to the acts conducted in the murder. During the murder, the trunk containing the cashbox had been forced open in a similar fashion to the robbery conducted 3 weeks earlier. Also, the intruder escaped through an animal enclosure just like in the case. This implies that the person who conducted the robbery the first time was the same person who murdered Mrs Anderson.
According to Section 15 of the Evidence Act similar fact evidence is used where there is the absence of causal connection, to identify an accused person, where the accused claims they lack intention (no mens rea), lack of knowledge (also no mens rea) or where the defense pleads automatism or accident.
In the case of Makin and Another vs AG, the defendants were charged with the murder of a baby. The child’s mortal remains were found buried in the garden of the Makins but there was no evidence that they had killed the child. There was also evidence that the Makins had adopted other children, their mortal remains found in gardens of the houses that the Makins had lived in before. The trial court held this evidence to be admissible and the defendants were convicted.
The fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned is relevant, therefore, admissible.
To show causal connection is the case of R vs Straffen. A young girl was found strangled by the roadside. There had been no attempt at sexual assault on her person. Straffen had been seen around the scene of the crime but there was no evidence that he was directly or indirectly connected with the murder. It was established as a fact that Straffen had strangled two girls at a different place two months earlier and had also left their bodies by the roadside with no attempt at sexual assault. He was convicted on the basis of the evidence of the other two girls.
In the same way Paul Ekai was convicted on the basis of the previous robbery case. Clothes belonging to Mrs Anderson were found in his possession. The clothes went missing from the first robbery incident which infers that the accused must have been the same person who committed the murder.
Also used to illustrate Section15 is the case of R vs Smith where the defendant was accused of murdering his wife, Bessie Munday, who was found dead at home in her bathtub. Evidence of the death of two subsequent wives in similar circumstances was held to be admissible as it was improbable that three different women would have accidentally drowned in the bath given their deaths occurred not long after marriage.
To show identity, Section 9 of the Evidence Act allows the admissibility of evidence which establishes the identity of anything or an accused person. The acts in the Paul Ekai case were done with a peculiarity, narrowing the probability of the identity of the murder.
In the case of Thompson vs R, Thompson had carnal knowledge of two boys and he gave them a date 3 days later. Thompson met the two boys at the appointed hour on a street outside a public toilet. Policemen were also at the scene and on being searched Thompson was found in possession of a few bottles of chemicals. A further search of his house yielded photos of naked boys. The judges relied on this evidence and its use as alleged by the boys. In the words of the court, being gay had characteristics that were easily recognizable. It elicited a distinct propensity and was therefore a reliable means of identification.
The case of R vs Straffen can also be used to show identity the manner of which the murder was done was unique to only one person.
Evidence of previous crime is admissible when it is used to show the state of things and where there is a connection between previous crimes and the crimes with which the accused is charged.
In the case of R vs Brabin and Another, the defendants were charged with obtaining a bribe as an inducement to forebear to show disfavor to Hasham Kara in his dealing with a government agency. Evidence of a previous corrupt transaction between the defendants and Hasham Kara was admitted to the effect that 5 months prior thereto, the defendants had already demanded money from him in order to get his sugar supply restored. The court held that the evidence of the earlier transaction was properly admitted.
Similar fact evidence can be used to show opportunity. In this case, Paul Ekai worked for the deceased and had good knowledge of the camp. He knew where the cash box was collected and the animal enclosure to be used as an escape.
As stated earlier, similar fact evidence may be used to show the lack of knowledge, intention, motive or automatism. This evidence will prove the existence or lack of mens rea. According to Section 14 a fact showing the existence of a state of mind must show that the state of mind exists, not generally, but in reference to the particular matter in question.
In the case of R vs John Makindi, the accused was charged for the murder of his foster child. He claimed the boy died of a seizure but the prosecution presented evidence that the accused had previously been convicted for beating up the boy. The court held the evidence was correctly admitted to show the accused had a motive to revenge for his previous imprisonment.
If the state of mind in previous actions is unclear, the very nature of those acts conceded along with the present one may lead to an inference as to what the state of mind was. In the case of R vs Francis, the accused was charged with attempting to obtain money from another person by presenting a certain ring to be a diamond ring. There was evidence that he had previously approached other persons previously who had refused to give him money for the ring when they realized that the ring was not a diamond ring. The evidence of Francis with other persons was relevant here to rebut lack of knowledge.
An inference on intention may also be made when the accused admits the charge but denies doing it on purpose. In the case of Mohamed Saeed Akrabi vs Reginam, the intention of the accused person was inferred from the fact that he had treated three other boys from the same school in a like manner as the complainants. Therefore, there existed criminal intent.
From the facts of the case of Paul Ekai vs Republic, it is implied that Mrs Anderson may have been murdered during a robbery gone wrong. The perpetrator may have had the intention to steal but was interrupted and he killed the only witness to avoid being discovered. Therefore, if it was a thief on the night of the murder, it must have been the same thief in the robbery that happened three weeks earlier. And if the accused was found in possession of items recovered from the first robbery, he must have been the murderer as well.
On the other hand, Paul Ekai was justified to appeal against the admission of similar fact evidence. This is because it went against his constitutional right of presumption of innocence guaranteed under article 50(2)(a).
In DPP vs Christie, Lord Molton said that the judge in a given case has discretion to intimate to the prosecution that evidence of similar facts should not be pressed because its probative judicial effect would be out of proportion to its true evidential value.
You cannot lead similar facts evidence merely to show the accused likelihood to commit an offence. . In the case of Republic vs. John Makindi, Lord Herschell stated that it is wrong for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct/character to have committed the offence for which he is being tried.
Also, the accused was convicted on the basis of two separate incidences. One was a robbery, the other was a murder. For similar fact evidence to be admissible, they have to be similar. The prosecution did not link the accused directly to the murder, they only linked him to the robbery. In the case of Harris vs DPP, the jury convicted him on the last count but acquitted him on the first seven counts.
The prosecution did not prove beyond reasonable doubt the accused committed murder. No murder weapon was found. From the facts, there could have been a second assailant who committed the murder. No other evidence was beside the stolen clothes was used to convict him. This was circumstantial.
The similar fact evidence admitted by itself could not be used to convict the accused. Fact in issue cannot be proved by showing the facts similar to it, but not part of the same transaction and have occurred at other times.
Similar facts evidence must have strong probative value, in the case of R v. Scarrot Lord Scarman stated:
“Such probative value is not provided by mere repetition of similar facts. There has to be some features in the evidence sought to be adduced which provided an underlying link. The existence of such a link is not to be inferred from mere similarity of facts which are themselves so common place that they can provide no sure ground for saying that they point to the commission by the accused of the offence under consideration.”
MOUNT KENYA UNIVERSITY
SCHOOL OF LAW
Corina Oyier BLAW/53185/2016
Linet Njeri BLAW/2016/56594
Ruth Njeri BLAW/52743/2016
Brian Cheruiyot BLAW/53324/2016
Edgar Rioba BLAW/53051/2016
Submitted to: Lecturer Irene Ndegwa
- The law and Practice of evidence in Kenya, Kyalo Mbogo
- The Modern Law of Evidence, Oxford University Press
- Evidence Act Cap 80
 Makin & Another vs AG for New South Wales (1894) AC 57
 R vs Straffen (1952) 2 GB 911
R vs Smith (1915) 11 Cr.App.Rep 229
 Modern Law of Evidence, pg 417-452
 R vs Brabin and Another (1947) EACA 80
 The law and Practice of Law of evidence in Kenya
 R vs John Makindi (1961) EALR 327
 Mohammed Saeed Akrabi vs R (1956) vol. 23 EACA 512
 DPP vs Christie (1924) 24 Cox CC 249
 Harris vs DPP (1952) AC 694 HL
 R v. Scarrot  1 AER 672