Goldenberg Commission of Inquiry Report - Mars Group Kenya

11. Under the Evidence Act Cap 80 Laws of Kenya, hearsay evidence
may only be received in very limited circumstances, particularly those set
out in Section 33 of the said Act. The Commissions of Inquiry Act, does
however generally permit hearsay evidence to be received except where it
adversely affects the reputation of any person, or tends to reflect on the
character or conduct of any person. Where however we received
hearsay evidence we did not act on it except when it became
authenticated by other acceptable evidence. Previous Commissions,
notably The Njonjo Commission, and The Akiwumi Commission on tribal
clashes, adopted the same approach. We would therefore say that the
practice is well settled in Kenya. The citation of this Judicial
Commission of Inquiry directed us on what evidence to receive and we
consider it proper to reproduce the direction.
“And I do direct that in the performance of its task,
the Commission shall receive views from members of
the public and receive oral and/or written statements
from any person with relevant information, and may -
(a) use official reports of any previous
investigations into the said payments;
(b) use any investigation report by any institution
or organization into the payments; and
(c) Commission reports from experts in any
relevant areas.
And I do direct that in accordance with the provisions of
Section 10(1) of the said Act, the Commissioners shall
summon any person or persons concerned to testify
on oath and to produce any books, plans and
documents that the Commissioners may require.”
12. These are wide powers. We exercised those powers fully, of course
subject to the law currently in force. We summoned many witnesses
some who in obedience to our summons produced several documents on
which they were cross-examined in the open hearings. It was a daunting
task going through those documents. Some witnesses remained in the
witness box for several weeks due to the importance of their evidence and
in view of the fact that their evidence touched adversely on several
people, who, in obedience to adverse notices served on them chose to
appear, and cross-examined those witnesses at great length. The list of