High Court at Nairobi (Milimani Law Courts)
Gitau & another v Republic
High Court, at Nairobi
June 14 , 1989
Porter & Tank JJ
Criminal Appeal No 1214 of 1988
Evidence – expert evidence – handwriting expert – the nature of evidence necessary to be presented to the court by a handwriting expert – document examiner adducing evidence in court without cross-examination – whether it is proper for the court to rely entirely on such evidence.
Evidence – confession – confession by co-accused – how such confession used against accused person.
The two appellants were convicted in a magistrate’s court on a series of charges relating to some cheques which were stolen and then forged.
The only evidence which connected the appellant with the stolen cheques was that he was found to be the operator of the account through which the forged cheques were paid.
Police investigation revealed that the 1st appellant’s last name was similar to the operator of the suspect account. No one was able to identify him as the person who had opened the account and the only available evidence was that of a document examiner who looked at the account opening documents and said that the specimen signature card and the sole proprietorship letter with which the account was opened were written in the same hand as specimen signature written by the 1st appellant.
The police did not ask the document examiner to check the paying-in slips with which the forged cheque were banked and the cheques drawn against the suspect account for any similarities.
The 2nd appellant however, made an extra judicial statement in which he implicated the 1st appellant. He claimed the 1st appellant told him he was able to cash the cheques through the suspect account.
1. The most a handwriting expert can say in an appropriate case is that he does not believe a particular writing was by a particular person or positively that the writings are so similar as to be undistinguishable.
2. The record and judgment must show that the learned trial magistrate satisfied himself of the accuracy of the expert upon whose opinion he relies. If the relevant material is before him and he applies his mind to the matter and there is no cross examination, no objection can be taken.
3. The confession of a co-accused can only be used to corroborate or supplement evidence in exceptional cases where there is substantial evidence to which the confession may be added.
1. Salum v Republic  EA 126
2. Onyango v Republic  EA 362
3. Wainaina v Republic  KLR 11
4. Asira v Republic  KLR 227
5. Ozio v R  EA 36
6. Chaama Hassan Hasa v Republic  KLR 6
7. Anyangu and Others v Republic  EA 329
8. Gopa and Others v Republic (1953) 20 EACA 318
9. Republic v Kipkering Arap Koske (1949) 16 EACA 135
Evidence Act (cap 80) sections 48(1), 50, 51, 52, 53, 63