Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR (2) Such persons are called experts.” 559. The first requirement therefore, of a party who calls an expert witness, is to establish the credentials of the person as an expert, or one who is especially skilled in that branch of science or art, to the satisfaction of the Court. The question whether a person is specially skilled within the meaning of section 48 of the Evidence Act is a question of fact that has to be decided by the Court, and failure to prove the competency of a person a party calls as an expert presents a real risk of evidence of such a person being ruled out as irrelevant. 560. The 5th Respondent alleges that the Petitioners’ expert witness was not specially skilled on NIIMS as he had not interacted with it. We note that from his qualifications, the Petitioner’s expert witness, Mr. Anand Venkatanarayanan holds a Bachelor’s degree in Technology with Computer Science Major from the University of Madras and he stated that he was an expert Cyber Security and Computer fraud forensic analysis. He also had work experience as a software engineer from June 1998 to August 2018, a period of 20 years. In our view his training and experience makes him specially skilled in computer systems, and to this extent, his evidence was relevant. His lack of interaction with NIIMS in our view will only be pertinent to the import of any conclusions he makes on the issues before this Court. 561. The import of an expert’s conclusions in this respect is influenced by the overriding consideration that an expert’s opinion is based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. In addition, the expert witness ought to explain the reasoning behind his opinion and the basis of the reasoning. Lastly, while the opinion of the expert is relevant, the decision must nevertheless be the judges’. 562. The weight to be attached to such an opinion by the Court would depend on various factors. These include the circumstances of each case; the standing of the expert; his skill and experience; the amount and nature of materials available for comparison; and the care and discrimination with which he approached the question on which he is expressing his or her opinion, as noted by a five judge bench of this Court in Mohammed Ali Baadi & Others vs The Attorney General & 11 Others (2018) e KLR. The said five judge bench held as follows on the factors the court will take into account when deciding what weight to be given to expert evidence: “Firstly, expert evidence does not “trump all other evidence.” It is axiomatic that judges are entitled to disagree with an expert witness. Expert evidence should be tested against known facts, as it is the primary factual evidence which is of the greatest importance. It is therefore necessary to ensure that expert evidence is not elevated into a fixed framework or formula, against which actions are then to be rigidly judged with a mathematical precision Secondly, a judge must not consider expert evidence in a vacuum. It should not therefore be “artificially separated” from the rest of the evidence. To do so is a structural failing. A Court’s findings will often derive from an interaction of its views on the factual and the expert evidence taken together. The more persuasive elements of the factual evidence will assist the Court in forming its views on the expert testimony and vice versa. For example, expert evidence can provide a framework for the consideration of other evidence. Thirdly, where there is conflicting expert opinion, a judge should test it against the background of all the other evidence in the case which they accept in order to decide which expert evidence is cogent and give reasons why the court prefers the evidence of one expert as opposed to the other. Fourthly, a judge should consider all the evidence in the case, including that of the experts, before making any findings of fact.” 563. Reliance was placed by the Court on various decisions including Ndolo vs Ndolo, (1996) eKLR, Kimatu Mbuvi T/A Kimatu Mbuvi & Bros. vs Augustine Munyao Kioko (2006) eKLR and Huntley (also known as Hopkins) (a protected party by his litigation friend, McClure) vs. Simmons [2010] E.W.C.A. Civ. 54. It was http://www.kenyalaw.org - Page 86/174