LAW OF EVIDENCE II - GPR 207

Lecture Notes

Module 2: EVENING

Taught By: Mr. MUTHOMI THIANKOLU

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 LECTURE 9: FRIDAY 15 th FEBRUARY 2013 – SHERIA HALL 5.30-8.30 PM

RECAP FROM EVIDENCE 1

EVIDENCE AND THE DIFFERENT TYPES OF EVIDENCE

 Section 3 (1) of the Evidence Act defines “evidence” in the following terms: – “evidence”
denotes the means by which an alleged matter of fact, the truth of which is submitted to
investigation, is proved or disproved ; and, without prejudice to the foregoing generality,
includes statements by accused persons, admissions and observation by the court in its
judicial capacity.”
 Evidence by which facts may be proved or disproved in courts is known as judicial
evidence.
 It is used to prove either facts in issue or relevant facts from which facts in issue may be
inferred.
 It covers testimonies of witnesses, documents and objects that can be used as evidence.
 For the purposes in understanding the law of evidence in Kenya, the underlying principle
in the definition is that “evidence is concerned with all the rules, means and procedures
followed when proving facts during the trial of an issue in Court. The purpose of these
rules together with the rules of law of procedure is to e nsure a fair trial for each party.
 There are principally 5 types of judicial evidence namely

[Link] EVIDENCE

 This is the most basic form of evidence. It consists of the oral narration of a duly sworn
witness of fact in the court at the proceeding in question. In other words Testimony
comprises the oral statement of a witness made on oath in open court offered as evidence
of the truth of what is asserted.
 Testimony is the statement of a witness in court offered as evidence of the truth of that
which is stated.
 Many of the rules of evidence such as those concerned with the oath, the competency of
witnesses and their cross -examinations are designed to ensure that testimony shall be as
reliable as possible.
 There is a sense in which testimony is the only item of judicial evidence, a hearsay
statement if oral has to be narrated to the court; if it is contained in a document, the
document has usually although not invariably to be produced to the court and identified
by a witness, the same is true of things.
 In all of the above cases however testimony is used for widely different purpose from that
of inducing the court to accept the witness’s direct statement concerning a relevant fact
and that is why hearsay statements, documents and things, although normally proved by
a witness, may properly be regarded as separate items of judicial evidence.
 The general rule is that a witness can give evidence only of facts of which he has personal
knowledge, something that has perceived with one of his five senses.
 The only exception to the general rule is the expert witness testifying to matters calling
for expertise, parts of his testimony may be based on information derived from textbooks
or on what he has learned from other people.
 The party against whom testimony is giv en has a right to cross -examine the witness and
this right, coupled with the personal knowledge rule; lay at the root of the ban on hearsay
evidence.
 The probative value of a statement is diminished if it is not made by witness when giving
evidence in the proceeding.
 Generally, testimony will be admissible as evidence of the truth of what is asserted if it is
first-hand evidence, i.e. if it constitutes what the witness perceived with one of their five

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 senses:– “oral evidence must in all cases be direct evid ence…” (Section 63 of the
Evidence Act)

2. HEARSAY EVIDENCE

 Hearsay evidence refers to testimony given or repeated in court by a person other than
the one perceived it.
 For you start from the premise that repeating in court what you heard another person say
is not admissible in a court as direct evidence of that fact and this draws from section 63
of the Evidence Act which explicitly provides that oral evidence must be direct.
 In essence, hearsay is a statement other than one made by a witness in the cour se of
giving evidence in the proceeding in question by any person whether it was made on oath
or not and whether it was made orally ,in writing or by signs and gestures which is offered
in as evidence of the truth of its contents. (By Professor Cross).
 The above proposition by Prof Cross stipulates that a person’s out -of-court statement
could not be used “testimonially” to prove the truth of some fact narrated by the
statement. See as per Lord Wilberforce in Ratten vs R [1972] AC 378 at 387.
 A court could not in other words be asked to accept that something was true because X
(who made the statement being reported to the court) said it was, even if it was made
under oath.
 Hearsay is also known as secondary evidence or indirect evidence.
 As a general rule hea rsay is inadmissible as evidence of the truth of what is asserted.
 The rationale for the exclusionary approach was explained in the case

Teper vs. R [1952] AC 480 at 486

“The rule against the admission of hearsay evidence is fundamental. It is not the b est evidence
and it is not delivered on oath. The truthfulness and accuracy of the person whose words are
spoken to by another witness cannot be tested by cross -examination, and the light which his
demeanour would throw on his testimony is lost.”

The danger against which this fundamental rule provides a safeguard is that untested

hearsay evidence will be treated as having a probative force which it does not
deserve.
 According to the common law the hearsay rule applied only if the purpose was to
prove the truth of some fact stated in the assertion. If the assertion was offered in
evidence for some other purpose for example to show that a statement was made as
opposed to showing that it was true, the hearsay rule did not apply and the evidence
of the assertion was admissible. The classic expression of this fundamental distinction
was in the judgment of the Privy Council in
Subramanian vs. Public Prosecutor [1956] 1 W.L.R 965 at 969

“Evidence of a statement made to a witness by a person who is not himself call ed as a witness
may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to
establish the truth of what is contained in the statement. It is not hearsay and is admissible
when it is proposed to establish by the evidence not the truth of the statement but the fact that
it is made.”

 NB: Hearsay evidence may be given to prove that a statement was made, rather than to
prove the truth of the statement (see Subramanian v Public Prosecutor [1956] 1 W.L.R.
965 on allegation that terrorists (not called as witnesses) had forced the appellant to
carry ammunition).

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[Link] EVIDENCE

 This refers to evidence contained in documents and can be adduced in court as so.
 Documentary evidence is evidence in the form of recorded documen t.
 While many people may think of written documents, recordings in other media are also
considered documentary evidence e.g a photograph or film would be classified as
documentary evidence.
 The best type of evidence of a document is said to be the original copy and it must be
adduced if it is to be relied upon e.g a contract offered to prove the terms it contains is
documentary evidence.
 The contents of documents may be incorporated in the evidence of a witness who swears
for instance that he entered into a written contract and that court may be refer to them
because they contain admissible hearsay statements as when an entry made by a
registrar e.g of marriages is produced to prove this occurrence.
 Documentary evidence consists of documents produced for ins pection by the court.
 A document for the purpose of the law of evidence has no single definition, the meaning
of the word varies according to the nature of the proceedings and the particular context in
question, suffice it to say for present purposes, that in certain circumstance the word is
defined to include not only documents in writing, but also maps, plans, graphs, drawings,
photographs, discs, tapes, video -tapes, films and negatives.
 Documents may be produced to show their contents, their existence or their physical
appearance.
 The contents of documents may be received as evidence of their truth, by way of
exception to the hearsay rule, or for some other purpose for example to identify the
document or to show what its author thought or believed.
 Strictly speaking the contents of a document need not be treated as a separate item of
judicial evidence although it is convenient to do so because they are governed by special
rules. Like oral statements they are also subject to the general rules of evidence on
admissibility, their reception in evidence is also subject to two additional requirements,
namely
1. One of these requirements relates to the proof of their content
2. The other concerns proof of the fact that the document was properly executed.
NB:The is to illustrate the difference between Primary Evidence which the best and
Secondary Evidence which is evidence by its nature suggests that better evidence
may be available.
 As a general rule a party seeking to rely on the contents of a document must adduce
primary evidence of those contents, which is usually the original of the document in
question as opposed to secondary evidence of those contents for example a copy of the
document, a copy of a copy of the document or oral evidence of its content. (The
distinction between primary and secondary evidence is also of importance in relation to
the proof of facts contained in a document to which private privileges attaches).
 Where a document is produced to show the bare fact of its existence or its physical
appearance for example the substance of which it is made or the condition which it is in, it
constitutes a variety of “real evidence”.

[Link] OR REAL EVIDENCE

 This refers to material objects or exhibits which are produced for the court’s inspection.
 Real evidence comprises any material object, animate or inanimate, produced in court for
purposes of proving a fact in issue e.g Remember the goat adduced in court to prove the
deleterious effects of the “Mathenge” tree?
 The objects produced in court may range from mer e objects (movable or immovable) to
human beings but this does not include documentary evidence.

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  It may also refer to a thing the existence or characteristics of which are relevant and
material to a case.
 It is usually a thing that was directly involved in some event in issue in the case e.g the
bloody knife, the murder weapon, a crumpled automobile or the scene of an accident
comprise of real evidence.
 To be admissible, real evidence, like all evidence, must be relevant, material, cogent and
competent.
 Things are an independent species of evidence as their production calls upon the court to
reach conclusions on the basis of its own perception and not on that of witnesses directly
or indirectly reported to i.e. If a witness swears that he saw a knife and th at it bore
bloodstains, the court is asked to assume that both statements are true; if the witness
swears that the bloodstained knife he produces is the one he saw on a particular occasion,
only one assumption has to be made by the court in order to reach a conclusion as to the
condition of the knife.
 Real Evidence is not a term that has received the blessing of common judicial usage, it is
clear covers the production of material objects for inspection by the judge or jury in court,
but obscure how much fur ther the term should be extended.
 It includes material objects, appearance of a person,demeanour of witness, view or
automatic recordings

[Link] EVIDENCE

 Circumstantial evidence is defined as evidence of relevant facts (facts from which the
existence or non-existence of a fact in issue may be inferred) and construed with “direct
evidence” a term which is used to mean testimony relating to facts in issue of which a
witness has or claims to have personal or first -hand knowledge.
 Circumstantial evidence may take the form of oral or documentary evidence (including
admissible hearsay) or real evidence.
 It is no derogation of evidence to say that it is circumstantial.
 Its importance lies in its potential for proving a variety of different releva nt facts all of
which point to the same conclusion as when it is sought to establish that an accused
committed murder by evidence of his preparation, motive and opportunity for its
commission, together with evidence of the discovery of a weapon, capable of having
caused the injuries sustained by the victim, buried in the accused’s back garden and
bearing his finger prints.
 Lord Simon in

DPP [Link] [1973] AC 729 at 758

Circumstantial evidence it has been said “works by cumulatively, in geometrical p rogression,
eliminating other possibilities”.

 It has been likened a rope comprised of several cords Lord Pollock CB in

R vs Exall [1866] 4 F & F 922 at 929

“one strand of the cord might be insufficient to sustain the weight, but three stranded togeth er
may be quite of sufficient [Link] it may be in circumstantial evidence -there may be
combination of circumstances, no one of which would raise a reasonable conviction or more than
a mere suspicion; but the three taken together may create a conclu sion of guilt with as much
certainty as human affairs can require or admit of”.

 In
McGreevy vs DPP [1973] 1 WR 276 HL

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criminal proceedings in which the Crown’s case is based on circumstantial evidence, there is no
rule of law requiring the judge to dir ect the jury to acquit unless they are sure that the facts
proved are not only consistent with guilt but also inconsistent with any other reasonable
conclusion.
 Lord Normand observed in

Teper vs. R [1952] AC 480 at 489,PC

“Circumstantial evidence may sometimes be conclusive, but it must always be narrowly

examined, if only because evidence of this kind may be fabricated to cast suspicion on another.
Joseph commanded the steward of his house ‘put my cup, the silver cup in the sack’s mouth of
the youngest’ and when the cup was found there Benjamin’s brethren too hastily assumed that
he must have stolen it. It is also necessary before drawing the inference of the accused’s guilt
from circumstantial evidence to be sure that there are no other c0 -existing circumstances which
would weaken or destroy the inference.

 If only facts in issue were open to proof or disproof, many legitimate claims and defences
would fail-as there is hardly any direct (or eye -witness) evidence of the facts in issue in
many disputes. The rules on relevancy come in handy to avoid this.
 At common law, the need to admit indirect evidence was particularly impelled by the fact
that many categories of persons were ineligible to testify, including the parties to the case
and their spouses, an yone interested in the outcome of the proceedings, the accused and
his spouse-See Cross & Taper at p. 31.
 Circumstantial evidence, therefore, refers to refers to any fact from the existence of which
the court may infer the existence of a fact in issue.
 To illustrate, evidence that the accused person was seen with a blood -stained knife near a
scene where a deceased person was stabbed to death, only moments after the fatal
injury, may be relevant in a murder charge against the accused person.
 It is said that the line between circumstantial evidence and speculation is neither clear nor
sharp (Richard Evans Ltd v Astley [1911] A.C. 674 ) and that no useful purpose is
served by a comparison of the merits of direct and circumstantial evidence.
 Generally, courts app roach circumstantial evidence with caution, because of the fear that
such evidence may be manufactured to cast suspicion on another.
 In
Teper v R [1952] A.C. 480 ,

The appellant was charged with maliciously and with intend to defraud setting fire to a sh op
belonging to his wife, which he had insured at an inflated value and in which he carried on the
business of a dry goods store. There was no direct evidence identifying the appellant had set the
shop on fire. A police constable testified, for purposes of identification of the accused (as the
arsonist), that:” I heard a woman’s voice shouting, ‘your place burning and you going away from
the fire’; immediately then a black car came from the direction of the fire, and in the car was a
fair man resembling the accused. I did not observe the number of the car. I could not see the fire
from where I was standing from standing.” In cross -examination, the constable said he did not
know who or where the woman was. The woman was not a witness at the trial. It was comm on
ground that the incident described by the constable happened at a distance of more than a
furlong (about 200 meters) from the site of the fire, and some 26 minutes after the fire was
started. The appellant’s conviction was set aside because (inter alia) the circumstantial evidence
was inconclusive for purposes of identification. Lord Normand explained (at p. 489): – “The crown
has to rely on circumstantial evidence only to connect the appellant with the commission of the
crime. Circumstantial evidence may sometimes be conclusive, but it must always be narrowly
examined, if only because evidence of this kind may be fabricated to cast suspicion on

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another…It is also necessary before drawing the inference of the accused guilt from the
circumstantial evidence to be sure that there are no other co -existing circumstances which would
weaken or destroy the inference.”

 The general rule (in criminal proceedings) is that a conclusion of guilt should not be drawn
exclusively from circumstantial evidence unless the cir cumstantial evidence is
incompatible with the accused’s innocence.
 In

James Mwangi v Republic [1983] KLR 327

The appellants were convicted of robbery with violence in respect of a raid on a bank in
Naivasha, Kenya. The prosecution case depended entirely upon circumstantial evidence (that the
appellants had been found in possession of “a lot of money” whose source they could not
explain), as none of the five men was identified by anyone at the scene of crime, and the money
could not positively be identifi ed as that stolen from the bank. It was held that:

1. “In a case depending on circumstantial evidence, in order to justify the inference of guilt,
the incriminating facts must be incompatible with the innocence of the accused, the guilt
of any other person a nd incapable of explanation upon any other reasonable hypothesis
explanation hypothesis than that of guilt.

2. In order to draw the inference of the accused’s guilt from circumstantial evidence, there
must be no other coexisting circumstances which would wea ken or destroy the
inference…. [C.f. Teper v R].

3. It was wrong to shift the burden of proving innocent possession of the allegedly stolen
money onto the first appellant. There was nothing wrong with him having a large sum of
money and he did not have to ex plain how he had come to be in possession of it.

4. The prosecution had failed to establish the circumstances from which the conclusion of
guilt could be drawn and in the absence of establishing such facts, there could not be any
hypothesis of the guilt of t he first appellant.”

EXAMPLES OF CIRCUMSTANTIAL EVIDENCE

 The circumstance in which a fact may be said to be relevant to a fact in issue, in the
sense that the existence of the former gives rise to an inference as to the existence or
non-existence of the latter are many and various.
 Certain types of circumstantial evidence arises so frequently that they have been referred
to as “presumptions of facts” or “provisional presumptions” such as the presumptions of
intention, guilty knowledge ,continuance of life and seaworthiness.
 Another type of circumstantial evidence is evidence of facts which are so closely
associated in time, place and circumstances with some transaction which is in issue that
they can be said to form a part of that transaction, such facts a re referred to as facts
forming part of the Res Gestae.
 Res Gestae doctrine is mainly concerned with the admissibility of statements of facts as
evidence of the truth of their contents by way of common law exception to the hearsay
rule and has been describ ed not unfairly, in terms of a “collection of facts situations”.
 Common examples of circumstantial evidence are

1. Motives
2. Plans and Preparatory Acts

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 3. Capacity
4. Opportunity
5. Identity
6. Continuance
7. Failure to give evidence or call witness
8. Failure to provide eviden ce
9. Lies
[Link] of Comparison

HEARSAY EVIDENCE

 Hearsay generally deals with statements by persons who cannot be called as

witnesses.
 The standard definition given by Professor Cross is that “ Hearsay is an
assertion other than one made by a person whi le giving oral evidence
in the proceedings, it is inadmissible as evidence of any facts
asserted”.
 The common law laid emphasis on direct or first-hand oral testimony as
opposed to, for lack of better words, ‘reported speech.’
 In Kenyan Law, the term “hear say” is not defined in the KEA. However
Section 63 thereof embodies the basic rules of hearsay evidence.
 It provides that oral evidence must in all cases be direct evidence.
 It is noteworthy that the term ‘direct evidence’ means ‘original evidence’. It
then proceeds to give examples of direct evidence in the various instances.

Oral Evidence Must Be Direct

63. (1) Oral evidence must in all cases be direct evidence.

(2) For the purposes of subsection (1), “direct evidence” means -

(a) with reference to a fact which could be seen, the evidence of a witness who says he saw it;

(b) with reference to a fact which could be heard, the evidence of a witness who says he heard it;

(c) with reference to a fact which could be perceived by any other sense or in an y other manner, the evidence of a
witness who says he perceived it by that sense or in that manner;

(d) with reference to an opinion or to the grounds on which that opinion is held, the evidence of the person who
holds that opinion or, as the case maybe, who holds it on those grounds:

Provided that the opinion of an expert expressed in any treatise commonly offered for sale, and the grounds on which such
opinion is held, may be proved by the production of such treatise if the author is dead or cannot be found, or has become
incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the court
regards as unreasonable.

(3) If oral evidence refers to the existence or condition of any material thing, other tha n a document, the court may, if it
thinks fit, require the production of such material thing for its inspection.

 The hearsay evidence rule applies to civil and criminal cases in both oral and
documentary evidence.
 It is, however, much easier to think of it as applying to statements and not to
real evidence.

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  Some guidelines for spotting hearsay evidence are:
i) Determine whether a witness is repeating in court a statement
made out of court, either by way of oral evidence or by tendering
in evidence a documen t containing statements made by a party out
of court.
ii) Determine the purpose for which the out of court statement is
being repeated in court. If the purpose is to establish the truth of
its contents on a fact or opinion, it is hearsay evidence. If not for
example to show that the statement was made it is not hearsay
and admissible in evidence.
 It is therefore important to appreciate the purpose for which an out -of-court
statement is put forward.
 See

The Rice Case [1963] 1 QB 857

In Rice the issue was wheth er the prosecution could put in evidence of a used airline
ticket which specified a flight number and the name of a [Link] ticket had been
found at an airport terminal shortly after the flight had landed. The ticket together
with other evidence would have linked Rice to a conspiracy. Rice claimed that the
ticket was a hearsay statement by a ticket agent that Rice would take that flight.
Court of Appeal held that the ticket was indeed, a hearsay statement by the agent
that a man called Rice made a booki ng, though it was not hearsay that Rice would
make the flight. It was therefore original evidence that Rice had travelled on the
flight and was subsequently convicted.

THE GENERAL RULE ON HEARSAY

 The general rule on hearsay may be stated as follows “A statement made

by a person not called as a witness, which is offered in evidence to
prove the truth of the facts contained in the statement is hearsay and
is not admissible. If however the statement is offered in evidence not
to prove the truth of the facts contained in the statement, but only to
prove that the statement was in fact made, it is not hearsay and is
admissible.”
 The general rule as to hearsay arises in the context of a witness testifying or
giving of evidence in court and it relates to either or al or written evidence. In
the simplest terms therefore “Hearsay means that a witness ‘says’ in
court what from someone else, that other person not having been
called as a witness for the purpose of proving the fact repeated by the
witness, in order to pro ve that what he heard was true” .
 It is important to note that lawyers or prosecution should not seek to elicit
such evidence from any witness, whether in examination -in-chief or cross-
examination.

OUT-OF-COURT STATEMENT

 An out-of-court statement, for the purposes of the rule, means any statement
other than one made by the witness in the course of giving his evidence and
include
1) Statements made in previous legal proceedings (The statement may
have been made unsworn or on oath, orally, in writing or by sign s or

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 gestures by any person whether or not called as a witness in the
proceedings in question.
2) It seems to be irrelevant whether or not the maker of the statement
intended to communicate thereby.
3) The statement e.g may be made by a person while talking to h imself
and unaware that he is being overheard or may be contained in a
memorandum made for purely personal purpose.
 HOWEVER: If the statement is tendered for any relevant purpose other than
that of proving the truth of its contents, it is ‘original’ rather than hearsay
evidence and accordingly admissible.

ILLUSTRATION

Let us suppose that A, who witnessed an act dangerous driving, some weeks later said to B
that the car in question was blue and at the same time made a written note to the same
effect.B reported to C what A had said to him. If A is subsequently called as a witness in
proceedings concerned with the incident in question, he may of course make a statement
from the witness box in the course of giving his evidence to the effect that the colour of the
car he saw was blue. Evidence may not be given, however, by A, B, or C of the oral
statement made by A out of court. Likewise, the written statement made by A is
inadmissible. Under the rule against prior consistent or self -serving statements, such
evidence is inadmissible to show A’s consistency and thereby bolster his credibility. Under
the rule against hearsay, A’s out-of-court statements are inadmissible as evidence of the
truth of the facts contained in them, i.e that the car in question was blue. A’s out-of-court
statements would be admissible, however, as original evidence, if tendered for some
relevant purpose other than that of proving the truth of their contents. Likewise, if A were to
give evidence in criminal proceedings that the car in quest ion was blue, and it were to be
suggested to him in cross -examination that his evidence had been recently fabricated, his
former out-of-court statements to the same effect would be admissible in re -examination, by
way of exception to the rule against previ ous consistent or self -serving statements not as
evidence of the colour of the car, but as evidence of A’s consistency. If A were to give
evidence in criminal proceedings that the car in question was red, and under cross -
examination and under cross -examination about his previous inconsistent out -of-court
statements were to deny having made them, they would be proved against him, again not as
evidence that the car was in fact blue, but as evidence of his inconsistency going to his
credibility as a witness.

THE RATIONALE/JUSTIFICATION FOR THE RULE AGAINST HEARSAY

EVIDENCE

Teper v R [1952] A.C. 480 ,

The appellant was charged with maliciously and with intend to defraud setting fire to
a shop belonging to his wife, which he had insured at an inflated value a nd in which
he carried on the business of a dry goods store. There was no direct evidence
identifying the appellant had set the shop on fire. A police constable testified, for
purposes of identification of the accused (as the arsonist), that:” I heard a wo man’s
voice shouting, ‘your place burning and you going away from the fire’; immediately
then a black car came from the direction of the fire, and in the car was a fair man
resembling the accused. I did not observe the number of the car. I could not see th e
fire from where I was standing from standing.” In cross -examination, the constable
said he did not know who or where the woman was. The woman was not a witness at
the trial. It was common ground that the incident described by the constable

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happened at a distance of more than a furlong (about 200 meters) from the site of
the fire, and some 26 minutes after the fire was started.

The issue was whether the hearsay evidence of the woman’s utterances (going to
identification) were part of the transaction (i.e . the arson) and hence admissible
under the doctrine of res gestae (whether this statement was part of the transaction
as the fact in issue; the fact in issue being arson.

Held: It was part of the transaction (inter alia) the words spoken by the woman did
not form part of the res gestae and were not therefore excepted from the
fundamental rule against the admission of hearsay evidence.

The basis of admissibility of such spontaneous statements, made by onlookers or

participants in an event is that they are part of the Res gestae as an exception to the
hearsay rule and as evidence of the truth of the statement.

It was said “the rule [against the admission of hearsay evidence] admits of certain
carefully safeguarded and limited exceptions, one of which is th at words may be
proved when they form part of the res gestae. It appears to rest ultimately on two
propositions, that human utterance is both a fact and a means of communication,
and that human action may be so interwoven with words that the significance of the
action cannot be understood without the correlative words, and the dissociation of
the words from the action would impede the discovery of truth.”

The justification for the general exclusion of hearsay evidence is best

captured in the dictum of Lord Normand in at 486:

“The rule against the admission of hearsay evidence is fundamental. It is

not the best evidence [as it is indirect rather than first -hand] and it is not
delivered on oath [and hence the obligation to tell the truth might not have
been uppermost in the mind of the person whose words are repeated in
court]. The truthfulness and accuracy of the person whose words are
spoken to by another witness cannot be tested by cross -examination [and
hence there are difficulties in deciding what weight, if any, to attach to the
hearsay evidence], and the light which his demeanor would throw on his
testimony is lost.”

R vs. Blastland [1986]

The appellant was charged on indictment with buggery and murder, the case for the
prosecution being that he had fo rcibly buggered a 12 -year-old and then strangled
him with a scarf. He pleaded not guilty. He gave evidence that he had attempted to
bugger the boy but had desisted when the boy had complained of pain. Shortly
afterwards, he had seen M nearby and, afraid th at he had been seen committing
serious offence, had run -off and returned to his home. His case was that it had been
M,not he who had committed the offences with which he was charged. He sought to
call a number of witnesses to give evidence that M had said, before the boy’s body
had been discovered, that a young boy had been murdered. The judge ruled that,
that evidence was hearsay and inadmissible. He also refused an application by the
appellant to call M.

On appeal the question before the court was inter alia whether the confession by a
person other than the defendant to the offence with which the defendant is charged

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is admissible in evidence where that person is not called as witness. Whether
evidence of words spoken by a third party who is not called as a witness is hearsay
evidence if it is advanced as evidence of the fact that the words spoken and so as
indicate the state of knowledge of the person speaking the words if the inference to
be drawn from such words is that the person speaking them is or ma y be guilty of
the offence with which the defendant is charged.

Lord Bridge further explained at 1099 that the exclusion of hearsay

evidence has nothing to do with its probative value or lack thereof: “hearsay
evidence is not excluded because it has no lo gically probative value. The
rationale of excluding it as inadmissible, rooted as it is in the system of trial
by jury, is a recognition of the great difficulty, even more acute for a juror
than for a trained judicial mind, of assessing what, if any , weig ht can
properly be given to a statement by a person whom the jury have not seen
or heard and who has not been subject to any test of reliability by cross -
examination. The danger against which this fundamental rule provides a
safeguard is that untested hear say evidence will be treated as having a
probative force which it does not deserve.”

It was held
1. The appellant could not adduce evidence of statements made by a
third party indicating his knowledge of the murder several hours
before the boy was reported m issing and body discovered, because the
only issue before the court was whether the appellant had committed
the crimes and what was relevant to that issue was not the third
party’s knowledge but how he acquired it.
2. Since the third party could have acquired knowledge of the murder
many different ways, there was no rational basis upon which the jury
could infer that he, rather than the appellant, was the murderer.

Murphy: Hearsay the Road to Reform

 Murphy has explained the rationale for exclusion of hearsay in the following
terms: “There is no mystery surrounding the often expressed reluctance to
admit hearsay evidence more widely. It is a continuation of the judicial
preoccupation with three dangers said to be associated with hearsay. These
are
1. The risk of distortion inherent in evidence which consists of repeating
what someone else said,
2. The fears that juries may be unable to evaluate hearsay evidence in an
appropriate way, and
3. The danger of produce resulting from the absence of opportunity to
cross-examine.
 The question is, to what extent those fears should still be heeded today, and
how they can be assuaged without the necessity of excluding much relevant
and potentially cogent evidence.”
 The rule against hearsay was adopted because trials were being hel d in court
before jury made up of ordinary men and women with little knowledge of the
complexities of the evidential process.
 Not knowing what the rule on hearsay evidence was, the jury was likely to
admit such evidence.
 In order to protect the integrity o f the trial process, it was sought to remove
hearsay evidence.

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  Five reasons were advanced at common law to justify the inadmissibility of
hearsay evidence. They are as follows:
1. Allowing a witness to repeat statements in court is to allow them to
adduce evidence of facts which he may not have perceived and of
which he has no personal knowledge that is, potential unreliability of
manufactured evidence.
2. Allowing a witness to adduce hearsay evidence deprives the opposite
party the opportunity to cross -examine the real maker of the
statement in order to rest the accuracy of the assertions.
3. Hearsay evidence deprives the court/tribunal an opportunity to
observe the demeanour, attitude, intonation among other attributes of
the maker of the statement who is not in co urt.
4. At the time the statement was made, the importance of such
statement and the obligation on the part of the maker to say the truth
might not have been uppermost in the mind of the maker.
5. The danger of inaccuracy or mis -statement becomes real in oral
hearsay, especially multiple oral hearsay, since the witness appearing
before court might not be the first person to repeat it after the maker.

APPLICATION AND SCOPE OF THE RULE AGAINST HEARSAY

 At common law, the rule against hearsay applies to all out of court
statements, howsoever made, when offered as the truth of their contents.
 The scope of the rule extends to out -of-court:

1. Oral Statements

Sparks vs. R [1964] AC 964

A white man was convicted of indecently assaulting a three -year-old girl, who did not
give evidence at the trial. The defence had sought to call the mother to give evidence
that, shortly after the assault, the child had said to her “It is the colored boy”. The
Privy Council held that the trial judge had properly ruled that the evidence wa s
inadmissible hearsay. The appellant had argued that “it was manifestly unjust for the
jury to be left throughout the whole trial with the impression that the child could not
give any clue to the identity of the assailant”.
Lord Morris however was of the opinion that the cause of justice was best by
adherence to the long -recognized rule of hearsay.

“ If it is said that hearsay evidence should freely be admitted and that there should
be concentration in any particular case upon deciding as to its value or weight it is
sufficient to say that our law has not been evolved upon such lines but is firmly
based upon the view that it is wiser and better that hearsay should be excluded save
in certain well defined rather exceptional circumstances.

The trial judge (of the Supreme Court of Bermuda) ruled as inadmissible hearsay
evidence by the girl’s mother a statement made by the child shortly after she was
assaulted that, “ it was a colored boy.”

The appellant argued that the words by the child ought to have been a dmitted either
as evidence of identity (of the attacker) or as part of the res gestae.
It was Held (allowing the appeal on other grounds):

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 i) the mother’s evidence of what the child had said to her would have been
hearsay evidence, and the child having neither given evidence nor said
anything in the presence of the appellant, there was no basis upon which
her statement to her mother could be admitted.
ii) Further, even if any basis for its admission could be found, the evidence of
the making of the remark would not be any evidence of the truth of the
remark.
iii) There was no rule which permitted the giving of hearsay evidence merely
because it related to identity.
iv) It was not possible to say that the words alleged to have been spoken by
the child were so closely associated with the assault in time, place or
circumstances that they were part of the res gestae.

2. Witten Statements

Myers vs. DPP [1965] AC 1001

The appellant was convicted of offences relating to the theft of motor cars. He would
buy a wrecked car, steal a car resembling it, disguise the stolen car so that it
correspond with the particulars of the wrecked car as noted in its log book and then
sell the stolen car with the log book of the wrecked one. The prosecution case
involved proving that the disguised c ars were stolen by reference to the cylinder
block numbers indelibly stamped on their engines. In the case of some cars,
therefore, they sought to adduce evidence derived from records kept by a motor
manufacturer .An officer in charge of these records was called to produce microfilms
which were prepared from cards filled in by workmen on the assembly line and which
contained the cylinder block numbers of the cars manufactured. The Court of
Criminal Appeal held that the trial judge had properly allowed the e vidence to be
admitted because of the circumstances in which the record was maintained and the
inherent probability that it was correct rather than incorrect. The House of Lords held
that the records constituted inadmissible hearsay evidence. The entries o n the cards
and contained in the microfilms were out -of-court assertions by unidentifiable
workmen that certain cars bore certain cylinder -block numbers. The officer called
could prove that the records were correct and that the numbers they contained were
in fact the numbers on the cars in question.
Lord Reid while acknowledging that the hearsay rule was ‘absurdly technical, held
that ‘no matter how cogent particular evidence may seem to be, unless it comes
within a class which is admissible it is excluded’ .

It was held:
1. It was established law that as general rule hearsay evidence was not
admissible, and that authority must be found to justify its reception
within some established and existing exceptions to the rule.
2. To countenance new exceptions to the rul e against hearsay would
have amounted to judicial legislation.
3. The records could not be brought within the exception relating to
public documents open to public inspection (as they were private
documents) or any other established exception to the rule against
hearsay.
4. Accordingly, the records constituted inadmissible hearsay evidence,
because the entries on the cards and contained in the microfilms were
out-of-court assertions by unidentified workmen that certain cards
bore certain cylinder block numbers . To this extent, the officer called

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 could not prove that the records were correct and that the numbers
they contained were in fact the numbers of the cars in question.
5. (Per Lord Reid) The hearsay rule was “ absurdly technical.”
Nonetheless, “no matter how cog ent particular evidence may seem to
be, unless it comes within a class which is admissible, it is excluded .”
Accordingly, the reasoning of the Court of Criminal Appeal, though
undeniable as a matter of common sense, was irreconcilable with the
existing law.

SIGNIFICANCE OF MYERS VS DPP

1. The significance of the decision in Myers v DPP is that it confirms the

applicability of the rule against hearsay to written statements, and that
hearsay evidence is not excluded because it lacks logical probative
value.
2. The House of Lords was divided on whether the evidence in Myers v
DPP should have been admitted by the creation of a new exception to
the hearsay rule (they eventually ruled that the creation of new
exceptions to the hearsay rule should be left to Parliament), but were
unanimous in dismissing the appeal on the grounds that the other
evidence of guilt being overwhelming, there was no substantial
miscarriage of justice.
3. The decision in Myers v DPP was reversed by the UK Criminal Evidence
Act 1965, which provided for the admissibility of certain hearsay
statements contained in trade or business records (see Adrian Kean at
p. 223).

UK CRIMINAL EVIDENCES ACT 1965

 Section 1 of the Criminal Evidence Act 1965 provides: In any criminal

proceedings where direct oral evidence of a fact would be admissible, any
statement contained in a document and tending to establish the fact shall, on
production of the document, be admissible as evidence of that fact if —
a) the document is, or forms part of, a record relating to any trade or
business and compiled, in the course of that trade or business, from
information supplied (whether directly or indirectly) by persons who
have, or may reasonably be supposed to have, personal knowledge of
the matters dealt with in the information they supply; and
b) the person who supplied the information recorded in the statement in
question is dead, or beyond the seas, or unfit by reason of his bodily
or mental condition to attend as a witness, or cannot with reasonable
diligence be identified or foun d, or cannot reasonably be expected
(having regard to the time which has elapsed since he published the
information, and to all the circumstances) to have any recollection of
the matters dealt with in the information he supplied.”

4. Sections 33 (b) and 35 o f the Kenyan Evidence Act provides for

admissibility of hearsay evidence contained in documents written in
the ordinary course of duty or business. The sections would appear to
mitigate the absurdity of the hearsay rule as applied in Myers v DPP,
but they are less satisfactory compared to the English Evidence Act
1965, as they are arguably limited to instances where the maker of
the document is deceased, cannot be found etc.

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 5. In the UK, the hearsay rule was abolished in civil cases by the
Evidence Act 1995.

Made in the course of business

33 (b) when the statement was made by such person in the ordinary course of business, and in particular
when it consists of an entry or memorandum made by him in books or records kept in the ordinary course of
business or in the discharge of professional duty; or of an acknowledgement written or signed by him of the
receipt of money, goods, securities or property of any kind; or of a document used in commerce, written or
signed by him, or of the date of a letter or oth er document usually dated, written or signed by him;

Admissibility of documentary evidence as to facts in issue .

35. (1) In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a
person in a document and tending to establish that fact shall, on production of the original document, be admissible
as evidence of that fact if the following conditions are satisfied, that is to say –

(a) if the maker of the statement either –

(i) had personal knowledge of t he matters dealt with by the statement; or

(ii) where the document in question is or forms part of a record purporting to be a continuous record, made
the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in th e
performance of a duty to record information supplied to him by a per son who had, or might reasonably
be supposed to have, personal knowledge of those matters; and

 See Also

Patel vs. Comptroller of Customs [1966] AC 356

The appellant imported from Singapore into Fiji some coriander seed shipped in
bags. He correctly engrossed the customs import Entry Form A in accordance with
the particulars contained in the invoice, referable to the purchase of the seed. On
investigation at arrival, however,5 bags were found each to be contained in an outer
bag marked with appellant’s trade name, but the inner bags had the following words
written on them, “Alberdan/AD/4152/Coriander Favoriate Singapore” and at the base
of them the legend “Produce of Morocco”. In th e import entry form the country of
origin was stated to be India. The appellant was charged and convicted with making
a false declaration in a customs import entry produced to an officer of customs, in
that, in respect of the five bags instead of declaring the origin of the seed to be
Morocco he declared it to be India.

On appeal, it was held that the evidence of the writings on the bag were inadmissible
on account of the hearsay evidence rule. Further it was held that the bags could be
used and re-used from one country/person to [Link],the evidence based on
that statement was hearsay and inadmissible.

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 3. Statements made by Conduct: Signs and Gestures

Chandrasekera vs. R [1936]

A woman whose throat had been cut was unable to speak owing to the nature of the
wound. She was fully conscious however, and able to understand what was being
said to her to make signs and to nod her head slightly. After making certain signs
which, it was alleged, possibly indicated the appellant, she was asked the direct
question whether it was the appellant who had cut her throat and in answer to that
question she nodded her head. She died shortly afterwards from asphyxia resulting
from the injury to her throat.

Held:
1. Evidence as to the signs made by the deceased in answer to questions
put to her was admissible, but the statements of the witnesses as to
what interpretation they put upon the signs was inadmissible.
2. The direct question to the deceased whether it was the appellant and
her nod of assent constituted a verbal statement made by her within
the meaning of section 32 of the Ceylon Evidence Ordinance, 1895
(pari materia to section 33 (a) of the Kenyan Evidence Act and section
32 of the Indian Evidence Act 1872), and as such was admissible in
evidence under that sect ion.

4. Express and Implied Statements

 Hearsay evidence can be classified into express or implied assertions.

 Several cases suggest that the hearsay evidence rule excludes not only
express assertions intended to be made by the maker, but also implied
assertions inherent in a statement which were unintended by the maker.
 A number of cases are illustrative of hearsay as Express Assertions.

Subramanian vs. DPP [1956] 1 WLR 965

The accused was charged and subsequently convicted with being in possession of a
firearm without due cause, an offence which carried a mandatory death sentence. In
his defence the accused said that he carried the firearm in consequence of some
threats he had received from some terrorists and which he had reported. He was
overruled by the judge when he attempted to state what the terrorists told him. He
appealed to the Privy Council which over -ruled the conviction on the grounds that
what the terrorists had told him should have been admitted as original evidence. It
would shed light on hi s subsequent action.

Justice da Silva said “Evidence of a statement made a witness by a person

who is not himself called as a witness may or may not be hearsay. It is
hearsay and inadmissible when the object of the evidence is to establish the
truth of what is contained in the statement. It is not hearsay and admissible
when it is proposed to establish by the evidence not the truth of the
statement but the fact that it was made.”

 See Also

Myers vs. DPP

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Patel vs. Comptroller of Customs

R [Link]

 Hearsay as Implied Assertions was considered in the following cases

Teper vs. R [1952] AC 480

An unidentified woman by stander was heard to exclaim to a person identified as the

accused: Your place burning and you are going away from the fire!’

It was held that this was an implied statement of identification of the accused and
that it was therefore hearsay as to that fact, identification.

Wright vs Doe De Tatham [1837] 132 ER

The action concerned land owned by John Marsden, the deceased. Wright claimed as
a devisee under the deceased’s will, while the plaintiff claimed heir at law, alleging
that the will was void on ground that the deceased had inadequate mental capacity
to make a valid will (they alleged that the testator was a congenital idiot incapabl e of
managing his affairs and insane, hence lacked animus testadi; and the will was
procured by fraud on the part of the servant).The plaintiff called evidence of the way
the deceased as a child was treated by the servants; that in his youth, his village
nick name was Silly Jack and Silly Marsden. The defendant adduced evidence in
support of the competency of the deceased by production of letters written to him by
persons who knew him well to show that they treated him as sane.

The trial court excluded the letters as hearsay and found in favour of the plaintiff.
Wright appealed. The appellate court affirmed the trial court’s decision and held that
to admit such letters would lead to indiscriminate admission of the hearsay evidence,
not on oath but implied i n or vouched by conduct of persons by whose acts the
litigants are not bound.

Judge Parke B concluded that: “Proof of a particular fact, which is not itself a matter
in issue, but which is relatively only as implying a statement or opinion of a 3 rd
person on the matter in issue, is inadmissible in all cases where such a statement or
opinion not on oath would be of itself admissible”

5. Statements as to Existence or Non -Existence of Facts

a) The statement as a fact in issue

 If the making of a certain stateme nt is itself a fact in issue in the proceedings
that statement although inadmissible as evidence of the truth of its contents
may be admitted as evidence of the fact that it was made.
 A simple example is where the statement is tendered to prove that its ma ker
was at the relevant time, physically capable of speaking or, as the case may
be,writing,assuming that the matter is in issue in the proceeding in question.
 A witness may give evidence concerning the terms of an allegedly defamatory
statement irrespecti ve of the truth or falsity of its contents, for the purpose of
showing that the statement was made.

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 b) The statement as a fact relevant to fact in issue
 A statement may be admissible as a fact relevant to fact in issue in the
proceedings notwithstanding that it is inadmissible as evidence of the truth of
its contents.
 In

Ratten vs. R [1972] AC 378

Ratten was convicted of the murder of his wife by shooting her. His defence was that
a gun went off accidentally while he was cleaning it. The evidence estab lished that
the shooting from which the wife had died almost immediately took place between
1.12 pm and about 1.20pm.A telephonist from a local exchange gave evidence that
at 1.15pm she had received a telephone call from Ratten’s house made by a sobbing
woman who in an hysterical voice had said “Get me the police please”. The Privy
Council held that there was no hearsay element in this evidence which was relevant
i) In order to show that, contrary to the evidence of Ratten who denied that
any telephone call h ad been made by his wife a call had been made and
ii) As possibly showing that the wife was in a state of emotion or fear at an
existing or impending emergency which was capable of rebutting Ratten’s
defence that the shooting was accidental.

HEARSAY: MATTERS TO NOTE

1. As stated in lesson 2, hearsay evidence may be given to prove that a statement was
made, rather than to prove the truth of the statement (see Subramaniam v Public
Prosecutor [1956] 1W.L.R. 965 on allegation that terrorists (not called as witnesses) had
forced the appellant to carry ammunition).
2. The rule against hearsay prohibits the eliciting of such evidence during both
examination-in-chief and cross-examination.
3. An out of court statement for purposes of the rule against hearsay means an y statement
other than one made by a witness in the course of giving his evidence, and could include a
statement made in previous legal proceedings.
4. It is immaterial, for purposes of the rule against hearsay, whether the maker of the
statement intended to communicated thereby, and hence the rule applies to the situation
where a person is talking to himself unaware that he is being overheard.

THE RULE AGAINST HEARSAY: COMMON LAW EXCEPTIONS

 As is evident from the foregoing, the rule against hearsay can operate to
exclude highly cogent evidence.
 Common law judges, therefore, developed a number of important exceptions
to the rule against hearsay, most of which have now been codified into
statute (c.f. sections 33,34 and 63 of the Kenyan Evidence Act ), including:

1. PUBLIC DOCUMENTS
 At common law statements made in most public documents are admissible in
both civil and criminal cases as evidence of the truth of their contents.
 This exception to the rule against hearsay may be justified on the grounds of
reliability and convenience.
 Where a record has been compiled by a person acting under a public duty to
inquire into the truth of some matter and to record his findings so that the

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 public may refer to them, the contents of that document is presumed to be
true.
 Proof of the facts stated in the documents by direct evidence would clearly be
preferable but in many cases the public official in question will be dead,
retired or transferred or otherwise unavailable or unable to remember the
facts recorded because of th e time which has elapsed.

CONDITIONS OF ADMISSIBILITY

 Given the multiplicity of public documents to which the exception applies it is

perhaps not surprising that the conditions of admissibility vary to some extent
according to the particular type of docu ments in question.
 Generally speaking however it seems that a public document is only
admissible as evidence of the truth of its contents if:

a) A Public Matter

 In Sturla vs. Freccia Lord Blackburn expressed the opinion that ‘public’ in
this context should not be taken to mean the whole world.
 The matter in question may concern either the public at large or a section of
the public.
 Thus an entry in the books of a manor may be public as concerning all the
people interested in the manor and an entry in a corp oration book concerning
a corporate matter or something in which all the corporation is concerned
may be public in the same sense.

b) A Public Officer Acting Under a Duty to Inquire and Record

 A statement in a public document is only admissible if it was ma de by a public

officer as opposed to some private individual acting in discharge of a strict
duty to inquire into and satisfy himself of the truth of the facts recorded. See
Doe D France vs. Andrews [1850] 15 QB 756.
 Thus whereas a certificate of the regis trar of births, deaths and marriage is
admissible as prima facie -but not conclusive-evidence of the fact and date of
a birth, death or marriage according to the obiter view of Swifen Eady MR in
Bird vs. Keep that information supplied by a coroner is inadmi ssible as
evidence of the cause of death.
 This conclusion has been justified on the grounds that the registrar is bound
to record the verdict of the coroner’s jury and is under no duty to state the
results of his own personal inquiry according to his own j udgment.

c) Retention for Public Reference

 A public document to be admissible as such must have been brought into

existence as a document of record to be retained indefinitely a document
intended to be of temporary effect or designed to serve only temporary
purposes is inadmissible.
 Additionally the documents should have been prepared for the purposes of
the public making use of it and must be available for public inspection.
 In Lilly vs. Pettit it was held that the regimental records of serving soldier
were not admissible as public documents since they were kept for the
information of the Crown and executive as opposed to members of the public
who had no right of access to them.

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THE POSITION IN KENYA
 In Kenya the public documents is covered by ‘Statements made under special
circumstances”
 These are covered under section 37 to 41 of the KEA. The justification for the
admissibility of such statements is on the basis of the circumstances in which
they are made. And they include:

i) Entries Made in Books of Accou nts

 Books of accounts regularly kept in the course of business are admissible
whenever they refer to a matter into which the court has to inquire.
 However such statements require corroboration for anyone to be found liable.
 These statements are made by pro fessionals qualified in that field.
 Ordinarily they are prepared in order to be true reflection of the company’s or
personal financial state of affairs, hence there is need to exercise a duty of
care under all circumstances.
 See Section 37 of KEA.

Entries in books of account.

37. Entries in books of account regularly kept in the course of business are admissible whenever they refer
to a matter into which the court has to inquire, but such statements shall not alone be sufficient evidence to
charge any person with liability

 See

Odendo vs. Republic [1974] EA 60 (HCK)

The appellant was convicted of theft of money for which he was under duty to
account daily. The actual posting was done by another man. On appeal the appellant
contended that he had been convicted on the basis of a general assumption which
was insufficient and that he could not have been convicted solely on the basis of
books of accounts. Upholding the conviction, the Court of Appeal held that the
charge of theft of money was made because there was a duty of care on the part of
the appellant on that day. Secondly the Court held that the evidence of the books of
accounts was not the only evidence adduced as there was additional evidence in
corroboration.

ii) Entries Made in Public Records or Of ficial Registrar

 A statement of a fact in issue or a relevant fact made by a public servant in
the discharge of his official or by any other person in the performance of a
duty specially enjoined by the law of the country in which such book, register
or record is kept is itself admissible.
 See

Chandaria vs. R [1966] EA 246 (CA)

It was argued by the State that immigration forms which had been completed by a
member of public under a duty imposed by the immigration Rules and delivered to
Immigration Authorit ies who kept the same on departmental files, were admissible
under section [Link] was argued that the member of public completing the forms fell
within the scope of the phrase above being “any other persons”. However the court

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held that a member of the publ ic completing such forms was not within the scope of
the phrase quoted above.

 Though not an exact replica of the common law exception, section 38 of the
Kenyan Evidence Act is couched in words that suggest influences from the
common law :

Entries in public records.

38. An entry in any public or other official book, register or record, stating a fact in issue or a relevant fact,
and made by a public servant in the discharge of his official duty, or by any other person in performance of
a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself
admissible.

iii) Entries Made in Charts, Plans and Maps

 Entries in charts, maps and plans are dealt with under section 39 of KEA.
 The entries made in such documents at first sight appear to be quite
innocuous.
 However these are actually statements made by the authors of the said
documents.
 Hence statements of facts in issue or relevant facts made in published maps
or charts generally offered for public sale or in maps o r plans made under the
authority of Government as to matters usually represented or stated in such
maps, charts or plans are themselves admissible as an exception to the
hearsay evidence rule.
 If the rule were otherwise it would be hard to believe anything we read in
such documents.

Statements, etc., in maps, charts and plans.

39. Statements and representations of facts in issue or relevant facts made in published maps or charts
generally offered for public sale, or in maps or plans made under the author ity of any Government in the
Commonwealth, as to matters usually stated or represented in such maps, charts or plans, are themselves
admissible.

iv) Entries in the Kenya Gazette, Laws or Notice Purported to be

Printed by Government Printers
 When the court has to form an opinion as to the existence of any fact of a
public nature, any statement of fact made in written law of the country
concerned or in any notice purporting to be under any such written law or
official gazette where the law or notice purports t o be printed by the
Government Printer is admissible.
 See Section 40 of KEA.

Statement of fact contained in laws and official gazettes, etc.

40. When the court has to form an opinion as to the existence of any fact of a public nature, any statement
of it shall be admissible which is made -
(a) in any written law of Kenya, or in any notice purporting to be made in pursuance of any such
written law, where the law or notice (as the case may be) purports to be printed by the Government
Printer; or
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made in pursuance of any such written law, where the law or notice (as the case may be) purports to
be printed or published by or under the authority of the Governm ent of that country.

v) Entries Published in Public Books, Court Rulings or Public

Works Authorized by Government
 Any statement of law contained in a book purporting to be printed or
published under the authority of the government of such country and
containing any report of the ruling of the courts of such country is admissible
when a court has to form an opinion on the law of any country.
 See Section 41 of KEA

Statements as to law contained in books .

41. When the court has to form an opinion as to a la w of any country, any statement of such law contained
in a book purporting to be printed or published under the authority of the Government of such country and
to contain any such law, and any report of a ruling of the courts of such country contained in a book
purporting to be a report of such rulings, is admissible.

2. WORKS OF REFERENCES
 At common law, authoritative published works of reference dealing with
matters of a public nature are admissible to prove, or to assist the court in
deciding whether to take judicial notice of, facts of a public nature stated
therein (see section 60 (2) of the Evidence Act).

Facts of which court shall take judicial notice .

60. (1) The courts shall take judicial notice of the following facts -
(a) all written laws, and all laws, rules and principles, written or unwritten, having the force of law,
whether in force or having such force as aforesaid before, at or after the commencement of this
Act, in any part of Kenya;
(b) the general course of proceedings and privileges of Parliament, but not the transactions in their
journals;
(c) Articles of War for the Armed Forces;
(d) (Deleted by L.N. 22/ 1965).
(e) the public seal of Kenya; the seals of all the courts of Kenya; and all seals which any person is
authorized by any written law to use;
(f) the accession to office, names, titles, functions and signatures of public officers, if the fact of
their appointment is notified in the Gazette;
(g) the existence, title and national flag of every State and Sovereign recognized b y the
Government;
(h) natural and artificial divisions of time, and geographical divisions of the world, and public
holidays;
(i) the extent of the territories comprised in the Commonwealth;
(j) the commencement, continuance and termination of hostiliti es between Kenya and any other
State or body of persons;
(k) the names of the members and officers of the court and of their deputies, subordinate officers
and assistants, and of all officers acting in execution of its process, and also of all advocates and
other persons authorized by law to appear or act before it;
(l) the rule of the road on land or at sea or in the air;
(m) the ordinary course of nature;
(n) the meaning of English words;
(o) all matters of general or local notoriety;

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 (p) all other matters of which it is directed by any written law to take judicial notice.

(2) In all cases within subsection (1), and also on all matters of public history, literature, science
or art, the court may resort for its aid to appropriate books or documents of reference.
(3) If the court is called upon by any person to take judicial notice of any fact, it may refuse to do so
unless and until such person produces any such book or document as it considers necessary to enable it to
do so.

 Documents receivable under this exception include historical works

concerning ancient public facts; standard medical texts concerning the nature
of a disease; engineers reports within the common knowledge of engineers
and accepted by them as accurate on the nature of certain soil, dictionaries
on the meaning of ordinary English words etc.

3. STATEMENTS OF PERSONS SINCE DECEASED

 Certain statements of persons since deceased are admissible at common law
as evidence of the truth of their contents.
 In Kenya, this common law exception has been codified into section 33 of the
Evidence Act, although the section is not limited to statements of deceased
persons (as it also covers statements by persons who cannot be found, who
have become incapable of giving evidence, or whose attendance cannot be
procured without a degree of delay or expense that would be unreasonable in
the circumstances of each particular case).

a) DYING DECLARATIONS
 See

R vs. Woodcock [1789]

Eyre CB set out the principle of accepting dying declarations: ” the principle upon
which this species of evidence is admitted is, that they are declarations made in
extremity, when the party as at the point of death, and when every hope of this
world is gone, when every motive to falsehood is silenced, and the mind is induced
by the most powerful consideration to speak the truth; a situation so solemn and so
awful is considered by law as creating an obligation equal to that which is imposed
by a positive oath administered in a court of justice.”

 Under common law t he conditions of admissibility under this exception were:

i) The declarant must have been under a settled hopeless expectation
of death; and
ii) The declarant must have been competent as a witness.
 Under Section 33 (a) KEA when the statement is made by a person as to the
cause of his death or as to any circumstances of the transaction which
resulted in his death in cases in which the cause of that person’s death comes
into question, such statements are admissible whether or not at the time they
were made the maker was under expec tation of death.
 The following three conditions must be fulfilled for dying declarations to be
admissible.
i) The maker of the statement must be dead
ii) The statement must relate to the cause of his death or
circumstances of the transaction which resulted in his death

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 iii) The cause of that person’s death must be the subject or question in
the proceedings.
 The maker need not have been expecting death at the time the statement
was made. The KEA has amended the common law position that the marker
be in and settled and h opeless expectation of death.
 The locus classicus on this point is

Swami vs. King Emperor [1939] 1 ALL ER 396

Where the court examined the admissibility of a dying declaration relating to the
circumstances of the transaction which resulted in the death o f the deceased. The
deceased left his home one morning and told his wife that he was going to meet the
accused (Mr.X) who would pay a debt owed to him. The deceased set off and
bordered a vehicle to visit Mr. X and never returned. The next time the wife sa w the
husband, he was [Link].X was arrested and charged with murder. The wife gave
evidence of what the deceased had told her during the trial of [Link] statement
was held to be admissible by the trial court on the basis that it provided evidence of
the circumstances of the transactions i.e the reason for the visit and whom he was
going to meet. The accused was convicted. On appeal, it was held by the Privy
Council that the statement could indeed be made before someone dies or before the
cause of death is established or before a person has any reason to expect to be
killed.

 Admissibility of evidence of a dying declaration is justified on the basis that

although the statement was not made under oath the certainty of death is
such a strong inducement that it compels persons to say the truth before they
meet their maker.
 In

Pius Jasunga s/o Akumu vs. R [1954] 21 EACA

A witness the police inspector gave evidence that he saw the deceased lying on the
road with a wound in his chest. When he asked him who ha d injured him, the
deceased replied that Pius Jasunga had stabbed him. Later in hospital the deceased
made a statement by way of answering questions put to him by the police and
medical staff. His mind was clear, he started talking strongly at first but he got weak
with time and eventually died before he could sign the statement. The question was
whether the statement was admissible in evidence. It was held that admissibility of a
dying declaration is dependent in section 32 of the Evidence Act (Now Section 33 of
KEA) and the weight to be attached to such statement depended to a great extent on
the circumstances in which it was given. The court also noted that there was need
for caution to be exercised in the reception of such evidence as evidence of
identification especially when an attack occurred in darkness.

 Likewise in

Ajionzi vs Uganda [2002] 1 EA 6 (CAU)

The appellant the deceased and two other policemen were instructed to mount an
operation at about 3.30pm on 6 th April 1997,to find a motor vehicle which had been
reported stolen. In the cause of operation a shooting occurred as a result of which
the deceased was fatally injured. Before he died, however he was able to make a
dying declaration to one D/C Betungura in which he said that a fellow officer with

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whom he had been on duty had shot him. Following further inquiries, the appellant
was arrested and charged with murder. At the end of the trial, the trial judge found
him guilty as charged and sentenced him to death. He appealed on the grounds,
inter alia, that the trial judge had misdirected himself in relying on the
uncorroborated dying declaration of the deceased to establish his identity as the
person who killed the deceased. It was also submitted that the trial judge erred in
relying on exhibits that had been badly handled and in holding that there was
sufficient circumstantial evidence to establish that he (the accused) had shot the
deceased. The court held that although it is not a rule of law that there must be
corroboration of a dying declarat ion before it can support a conviction, it is generally
very unsafe to base a conviction solely on such a declaration unless there is
satisfactory corroboration. Evidence of a dying declaration must be received with
caution particularly where an attack too k place in darkness because the identification
of the assailant is usually more difficult then than it would be in daylight. The
circumstances in which the attack took place made a favorable identification difficult
meaning that the dying declaration requi red corroboration.

 Under common law the maker of the statement was required to be under
“settled and hopeless expectation of death” as per Chief Baron Erye in – King
vs. Woodcock . Hence the evidence of a dying declaration was admissible
only in a murder or manslaughter trial. The Chief Baron’s rationale of the
exception is open to criticism on a number of grounds
a) First the assumption that a sense of impending death invariably
creates a solemn obligation akin to that imposed by an oath
administered in court thereby affording some guarantee of the truth of
the statement made ignores the possibility that for some victims the
circumstances may create a desire to protect the guilty for example of
a relative or close friend or take vengeance on the innocent, for
example of an old enemy.
b) Second deliberate falsehood apart, the mental and physical condition
of the declarant will often be such as to cast serious doubt on the
reliability of his statement, those who have sustained fatal injuries
from which they expect to die are not surprisingly often in a weak,
confused, and frightened state, prone to errors of memory and
[Link], although such matters may affect the weight to be
attached to a dying declaration, they are no bar to its admissibility.
c) A third criticism accepting the subsistence of the exception stems from
the fact that it is confined to criminal proceedings in which the death
of the deceased is the subject of the charge and the cause of the death
the subject of the declaration. Thus although a dyin g declaration is
admissible in cases of murder and manslaughter and also arguably in
cases of causing death by reckless driving or abetting suicide it is
inadmissible to prove facts material to a charge of using an instrument
with intent to procure a misca rriage (even if the offence, in fact,
results in the death of the declarant), perjury, robbery or rape.
 The KEA has broadened the exception to incorporate any case in which the
death of the victim is a fact in issue. Indeed under our Act, the maker of the
statement may not be expecting to die at the time of the making of the
statement. Needless to say the case may either be civil or criminal.
 See

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Waugh vs. King [1950] AC 203

A statement, to be admissible as a dying declaration, must be [Link] re,a

statement made by a man who falls into a coma while making it and never recovers
is inadmissible because such statements is unacknowledged and there is no means
of knowing whether the deceased would have acknowledged its veracity or wo uld
have altered it had been able to do so. Further if on account of the information given
in a dying declaration it is reasonably possible to conclude that the deceased has
said all that he or she wished to say that statement is incomplete and inadmissible if
the deceased dies before completing it.

 See Also

R vs Charles Daki [1966] EA 34 (HCU)

The court noted that if a statement is not completed before death and there is
reason to believe that the utterances could have been qualified by other words which
the dying man wished to say but was prevented from uttering the value of the
statement made is impaired and as evidence may carry little or no weight.

In this case the deceased was admitted in hospital for gunshot wounds. While in
hospital he was interrogated by some p olicemen who asked him “Who shot you?”
and to which he answered “Charles Daki has killed me. He shot me with a gun. I saw
him with a gun. He was on a motor cycle…”The deceased was interrupted before
concluding his statement by a docter on the ground that t he patient was in pain,
hence unfit for further interrogation. The prosecution arrested Charles Daki and
charged him with the murder of the deceased. In support of the prosecution case,
the statement was referred to by one of the prosecution witnesses. It was held that
this statement was inadmissible because the deceased might have or might not have
added some words to the statement which would either have reinforced or
contradicted the statement.

 There must also be proximity in time of the events for stat ements made by
persons who cannot be found to be admissible.
 See

Barugahare vs. R

The accused was charged with the murder of the deceased .During the trial there ws
a witness who said that some 6 weeks before death, the accused had asked her to
marry him but she declined. The accused had also asked her to lend him some
money which she declined. Court of Appeal sympathized with him but held that the
evidence adduced went outside the scope of the provisions of section [Link] that
the facts alleged were not proximal to the cause of death.

b) STATEMENTS MADE IN ORDINARY COURSE OF DUTY (SECTION 33 (b))

 This exception is also adopted from English common law. At common law an
oral or written statement of fact made by a person in pursuance of a duty
owed to another, to report or record that act, is admissible even after the
death of that person as being evidence of the truth of its contents.
 The KEA has broadened this exception such that when the statement is made
by such a person in the ordinary course of bu siness and in particular when it

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 comes to an entry or memorandum made by him in books or records kept in
the ordinary course of business or in the discharge of his professional duties
such a statement is admissible.

Made in the course of business

33 (b) when the statement was made by such person in the ordinary course of business, and in particular when
it consists of an entry or memorandum made by him in books or records kept in the ordinary course of
business or in the discharge of professional duty; or of an acknowledgement written or signed by him of the
receipt of money, goods, securities or property of any kind; or of a document used in commerce, written or
signed by him, or of the date of a letter or other document usually dated, written or signed b y him;

 The justification for admissibility of this evidence is that there may be no

other evidence available concerning the actions of the deceased. Further the
statement was made in pursuance of a duty the maker owes to the employer
and was contemporan eous with the act done by the dead or deceased person.
This offers some degree of guarantee that the statement is true since there is
no motive to falsify the records i.e. the duty itself is a guarantee of reliability.
 There were six conditions for admissi bility under this common law exception:
i) The deceased must be shown to have been under a duty not only
to do the particular thing to which the declaration related but also
to report or record it;
ii) The duty must have been owed to another rather than self -
imposed;
iii) The declaration must relate to acts done by the deceased and not
by others;
iv) The act must have be en performed before the declaration was
made;
v) The declaration must have been more or less contemporaneous
with the performance of the act; and
vi) The declarant must have had no motive to misstate what occurred.

c) STATEMENTS AGAINST THE INTEREST PF THE MAKER (SECTION 33 (c))

 At common law, an oral or written statement against the interest of the
maker was admissible upon his death as the truth of its conte nts.
 The KEA has expanded this ambit to incorporate any statements pecuniary or
proprietary interest of the maker.
 Key things to note here is that the statement must affect an interest in the
money of the maker at the time of making it and the maker must h ave known
that the statement would be against his interest at the time of making the
statement.
 This exception arises in 3 instances
a. Statements made concerning the pecuniary interest of the maker
b. Statements made concerning the proprietary interest of the m aker
c. Statements which if true would expose the maker to criminal
prosecution or to suit for damages
 See Section 33 (c)

Against the interest of maker

33 (c) when the statement is against the pecuniary or proprietary interest of the person making it, or w hen, if true, it
would expose him or would have exposed him to a criminal prosecution or to a suit for damages;

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  The rationale for admissibility of such evidence lies the presumed unlikelihood
that a reasonable person would in ordinary course of human aff airs speak
falsely against his own interest unless the statements were true.

d) STATEMENTS OF OPINION AS TO THE EXISTENCE OF ANY PUBLIC RIGHT

OR CUSTOM

 The KEA provides that statements by persons who cannot be called as

witnesses are admissible if they g ive the opinion of any such person as to the
existence of any public right or custom or a matter of public or general
interest, the existence of which if it existed, he would have been likely to be
aware.
 The statement must have been made before any contro versy as to such right
or custom arose and before the institution of the suit.
 See Section 33 (d)

An opinion as to public right or custom

33(d) when the statement gives the opinion of any such person as to the existence of any public right
or custom or matter of public or general interest, of the existence of which, if it existed, he would have
been likely to be aware, and when such statement was made before any controversy as to such right,
custom or matter had arisen;

 Hence for instances an oral or written statement concerning the reputed

existence of a public or private right, such as right of access to the river using
a certain road, would be admissible as evidence of the truth after the maker’s
death where a dispute arises concerning the existence of such right of access.
However the statement must be made by a competent person who
demonstrably would have known of the existence of such public right or
custom if it ever existed.
 The justification for this exception was that other evidence, especiall y in the
case of ancient rights, is usually unavailable. To be admissible, such
declaration must have been made before any controversy arose on the
existence or non-existence of the public or general right or custom.
 NB: Public rights are those common to t he public at large, such as rights to
use paths, highways, ferries or landing places on the banks of a river. General
rights are those common to a section of the public or a considerable class of
such persons, such as the inhabitants of a parish or the ten ants of a manor.

e) STATEMENTS RELATING TO THE EXISTENCE OF A RELATIONSHIP

(PEDIGREE)
 Statements of persons who cannot be called as witnesses are admissible
when they relate to the existence of any relationship by blood, marriage or
adoption between perso ns as to whose relationship by blood, marriage or
adoption the persons making the statement had special means of knowledge.
 However such statements must have been made before the question in
dispute arose.
 There are two justification for this admissibility
i) First the maker of the statement had special means of knowledge
and
ii) Secondly the statement was made before the dispute arose

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 iii) Thirdly being that such declarations are often the only evidence
that can be obtained concerning facts which may have occurred
many years before the trial.
 At common law, such declarations were only admissible if made by a blood
relation as opposed to, say, a relation in law, domestic servants or intimate
acquaintances.
 Further, to be admissible, the declaration must have been made before any
controversy arose upon the matter (of pedigree) in question.
 See KEA 33 (e)

Relating to existence of relationship

33 (e) when the statement relates to the existence of any relationship by blood, marriage, or adoption
between persons as to whose relationship by blood, marriage or adoption the person making the
statement had special means of knowledge, and when the statement was made before the question in
dispute was raised;

4. STATEMENTS FORMING PARTS OF THE RES GESTAE

 Under the doctrine of res gestae a fact or a statement of fact or opinion which
is closely associated in time, place and circumstances with some act or event
which is in issue, that it can be said to form part of the same transaction, is
itself admissible in evidence.
 “Res gestae” is an omnibus phrase embracing a group of common law
hearsay exceptions which are loosely connected by the circumstance that a
statement is made roughly contemporaneously with an event to which the
statement relates.
 The justification for the res gesta e exception to the hearsay rule was based
on the spontaneity of the statement, the lack of opportunity to fabricate or
exaggerate and the light the statement sheds upon the act or event in issue:
in its absence, the transaction in issue may not be fully or truly understood
and may even appear meaningless, inexplicable or intelligible.
 Hence under this doctrine both the facts as well as the statements made
surrounding that fact may be received as part of the res gestae.
 These statements are normally admitted by way of an exception to the
hearsay evidence rule.
 Two res gestae exceptions which are of contemporary significance in criminal
cases are:
a. Excited utterances by participants in or observers of events
(see Thompson Trevanion v R (1693) Skin 402; Ratten v R
[1972] A. C.378 PC; R v Bedingfield (1879) 14 Cox CC 341);
and
b. Contemporaneous statements of the physical or mental state of
the declarant.

5. CONFESSIONS
 Since the development of this common law exception, and in Kenya, up to
2003, confessions presented problems rather different from those traditionally
associated with hearsay, dealing largely with the manner in which the
confession had been obtained.
 Most of the reliability challenges associated with informal or out-of-court
confessions in Kenya were resolved by Statute Law (Miscellaneous

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 Amendments) Acts Nos. 5 of 2003 and 7 of 2007 , which introduced the
current section 25A of the Evidence Act.

25. A confession comprises words or conduct, or a combination of words and conduct, from which, whether taken
alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person making it has
committed an offence.

25A. (1) A confession or any admission of a fact tending to the proof of guilt made by an accused person is not
admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or
before a police officer (other than the investigating officer), being an officer not below the rank of Chief Inspector of
Police, and a third party of the person’s choice.

(2) The Attorney General shall in consultation with the Law Society of Kenya, Kenya National Commission on
Human Rights and other suitable bodies make rules governing the making of a confession in all instances where the
confession is not made in court.

6. EVIDENCE GIVEN IN FORMER PROCEEDING

 Under Section 34 of the KEA evidence given by a witness in a judicial

proceeding is admissible in a subsequent judicial proceeding or at a later
stage in the same proceeding for the purp ose of proving the facts which it
states provided the following conditions are met
i) The witness is dead or cannot be found or is incapable of giving
evidence or is kept out of the way by the adverse party or where
his presence cannot be obtained without an amount of delay or
expense which in the circumstance of the case the Court considers
unreasonable.
ii) The proceedings in the subsequent case is between the same
parties or their representatives in interest; the adverse party, in
the earlier proceeding had the right and opportunity to cross -
examine the question in issue were substantially the same in the
earlier as in the current proceedings.
 See Section 34 of KEA

Admissibility of evidence given in previous proceedings.

34. (1) Evidence given by a witness i n a judicial proceeding is admissible in a subsequent judicial proceeding, or at a later
stage in the same proceeding, for the purpose of proving the facts which it states, in the following circumstances -
(a) where the witness is dead, or cannot be found , or is incapable of giving evidence, or is kept out of the way by
the adverse party, or where his presence cannot be obtained without an amount of delay or expense which in the
circumstances of the case the court considers unreasonable; and where, in the case of a subsequent proceeding -
(b) the proceeding is between the same parties or their representatives in interest; and
(c) the adverse party in the first proceeding had the right and opportunity to cross -examine; and
(d) the questions in issue were s ubstantially the same in the first as in the second proceeding.

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LECTURE 10: FRIDAY 22 nd FEBRUARY 2013 – SHERIA HALL 5.30-8.30 PM

DOCUMENTARY EVIDENCE

 Much as documentary evidence occupies such a prominent place in the trial

process, the KEA has not defined what a document is.
 In view of the silence we fall back to section 3 of the Interpretations and
General Provisions Act Cap 2 of Laws of Kenya, which defines a ‘document’ to
include: “Any publication and any mat ter written, expressed or
described upon any substance by means of letters, figures, or marks
or by more than one of those means, which is intended to be used or
may be used for the purpose of recording that matter”.
 The best definition of “document” for p urposes of evidence law is perhaps that
given by Darling J. in

R v Daye [1908] 2 KB 333 at 340:

“…any written thing capable of being evidence is properly described as a

document…it is immaterial on what the writing may be inscribed. It might be
inscribed on paper, as is the common case now; but the common case once was that
it was not on paper, but on parchment; and long before that it was on stone, marble,
on clay, and it might be, and often was, on metal ”.

 Adrian Kean further states (4th Edition at p. 198):“Today’s equivalent of

paper is often a disc, tape or film and conveys information by symbols,
diagrams and pictures as well as by words and numbers.”
 For purposes of this subject, therefore, the meaning of the word “ document”
should not be limited to the conventional/ordinary meaning of writing(s) on
paper.
 The definition of document is wide enough to incorporate documents not only
in writing but also maps, plans, graphs, drawings, discs, audio tapes, sound
tracks, photographs, negatives, video tapes and films.
 Electronic recording media is a form of modern documents that are currently
used in court proceedings.
 The Evidence (Out of Court Confessions) Rules, 2009 defines an electronic
recording media to include any removable or physical audio recordin g medium
(Rule 2).
 When an accused person wishes to make a confession, the recording officer
may record the confession of an accused person, in the open, on electronic
recording media. However he must notify the accused person of such
recording and of his right to object the same. His notification and response
must also be recorded (Rule 6 (2)).
 After recording the master recording (First Recording) is required to be
marked with reference number and sealed in the accused person’s presence
and kept in safe custody. The second recording is made and is used during
the prosecution as well as a copy being given to the accused upon request.
 The master record is then produced in court as evidence and then subjected
to the rules of admissibility of documentary evide nce including the
requirement to prove its authenticity.
 See

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Jane Betty Mwaiseje and 3 Others vs R [1992] eKLR Criminal Case No.47 of
1988

“ If video-taping is to be carried out, then the officer doing it must, at the very
commencement thereof, not onl y caution the accused about what is involved in the
process but also that the accused must be asked whether or not he wishes to
participate in the process. It must be made clear to him that he has the right to
refuse to participate and needless to say, all this must be video taped so that in
deciding on whether or not to admit such evidence, the trial Court would have before
it not only the visual picture of the accused but also his voice before the
commencement of the exercise. Video -taping all the aspects of the matter
considered relevant and important to the investigation may then follow.”

 The KEA has been amended to recognize electronic recordings as documents

strictly so called. See Section 65 (5)

65 (5) Notwithstanding anything contained in any other law for the time being in force -
(a) a micro-film of a document or the reproduction of the image or images embodied in such micro -
film; or
(b) a facsimile copy of a document or an image of a document derived or captured from the original
document; or
(c) a statement contained in a document and included in printed material produced by a computer
(hereinafter referred to as a “computer print -out”)

shall, if the conditions stipulated in subsection (6) of this section are satisfied, be deemed to also be a
document for the purposes of this Act and shall be admissible in any proceedings without further proof of
production of the original, as evidence of any contents of the original or of any facts stated therein of which
direct evidence would be admissible.

 The above-foregoing notwithstanding Section 65 (6) stipulates that a

computer print-out is only admissible if it meets the following four
qualifications

65 (6) The conditions referred to in subsection (5) in respect of a computer print -out shall be the following,
namely-
(a) the computer print-out containing the statement must have been produced by the computer
during the period in which the computer was regularly used to store or process information for
the purposes of any activities regularly carrie d on over that period by a person having lawful
control over the use of the computer;
(b) the computer was, during the period to which the proceedings relate, used in the ordinary course
of business regularly and was supplied with information of the kind contained in the document or
of the kind from which the information so contained is derived;
(c) the computer was operating properly or, if not, that any respect in which it was not operating
properly was not such as to affect the production of the docume nt or the accuracy of its content;
(d) the information contained in the statement reproduces or is derived from information supplied
to the computer in the ordinary course of business.

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CLASSIFICATION OF DOCUMENTS

 All documents are classified as either public or private documents.

 Hence the test for determining the category into which a document falls is
that if it falls under the list under section 79 (1) (a) and (b) then it is a public
document and if not it is a private document.

Part IV - Public Documents

Distinction between public and private documents.

79. (1). The following documents are public documents -

(a) documents forming the acts or records of the acts -
(i) of the sovereign authority; or
(ii) of official bodies and tribunals; or
(iii) of public officers, legislative, judicial or executive, whether of Kenya or of any other
country;
(b) public records kept in Kenya of private documents.

(2) All documents other than public documents are private.

 See Also Section 82 which has prima facie public documents.

Proof of certain public documents.L.N. 22/1965.

82. Without prejudice to any other mode of proof, prima facie evidence of the following public
documents may be given in the manner hereinafter shown, that is to say -
(a) (Deleted by L.N. 22/1965).
(b) (Deleted by L.N. 22/1965).
(c) proceedings of the East Africa Central Legislative Assembly, or of the legislature of any
country in the Commonwealth, by the journals thereof, or, in the case of such Assembly or
legislature as aforesaid, by copies of such journals purporting to be printed or published by or
under the authority of such Assembly or legislature, or by or under the authority of the
government of any such country;
(d) acts, orders or notifications of the executiv e government of Kenya, the High Commission or the
Organization or any service, thereof, or any local authority, or of a ministry or department of any
of the foregoing -
(i) by the records of the service, ministry or department certified by the head of the service or
department, or, in the case of a ministry, by the permanent secretary thereof; or
(ii) by any document purporting to be printed or published by the Government Printer;
(e) proceedings of any local authority, or of any corporate body created b y Act or Ordinance, by a
copy of the proceedings certified by the person having the lawful custody of the original thereof,
or by a public document purporting to be printed or published by or by the authority of such
authority or corporate body;
(f) proclamations, treaties and other acts of state of any foreign country or of any part of the
Commonwealth, and judgments, decrees, orders and other judicial proceedings of any court of
justice in such country or part, and all affidavits, pleadings and other lega l documents filed or
deposited in any such court, by the procedure required by section 7 of the Evidence Act, 1851, of
the United Kingdom.
(g) public documents of any other class in a foreign country, by the original, or by a copy thereof bearing a
certificate under the seal of a notary public or of a Kenya consular officer or diplomatic agent that the copy
is duly certified by the officer having the lawful custody of the original thereof, and upon proof of the
character of the document according to the la w of the foreign country.

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  The rationale for this classification is that there are different rules governing
admissibility and proof of the contents of the documents in a Court of law,
and the procedure to be followed in either case is different.e.g Seco ndary
evidence may be given of the existence, condition or contents of a public
document, whereas the rules concerning secondary evidence of a private
document are more restrictive.

THE GENERAL RULE AT COMMON LAW (PROVING THE CONTENTS OF A

DOCUMENT)-PRIMARY EVIDENCE

 The general rule at common law is that a party seeking to rely upon the
contents of a document must adduce primary evidence of those contents . In
effect, this means the party must adduce the original of the document:”
Primary evidence means th e document itself produced for the inspection of
the court” (see s.65 of the Evidence Act).

Primary Evidence.
65. (1) Primary evidence means the document itself produced for the inspection of the court.
(2) Where a document is executed in several parts, each part is primary evidence of the document.
(3) Where a document is executed in counterpart, each counterpart being executed by one or some of the
parties only, each counterpart is primary evidence as against the parties executing it.
(4) Where a number of documents are all made by one uniform process, as in the case of printing,
lithography or photography, each is primary evidence of the contents of the rest; but where they are all
copies of a common original they are not primary evidence of the cont ents of the original.
(5) Notwithstanding anything contained in any other law for the time being in force -
(a) a micro-film of a document or the reproduction of the image or images embodied in such micro -
film; or
(b) a facsimile copy of a document or an image of a document derived or captured from the original
document; or
(c) a statement contained in a document and included in printed material produced by a computer
(hereinafter referred to as a “computer print -out”)

shall, if the conditions stipulate d in subsection (6) of this section are satisfied, be deemed to also be a
document for the purposes of this Act and shall be admissible in any proceedings without further proof of
production of the original, as evidence of any contents of the original or o f any facts stated therein of which
direct evidence would be admissible.

 The general common law rule is reflected at section 67 of the Evidence Act: ”
Documents must be proved by primary evidence except in the cases
hereinafter mentioned .”
 The rule is often regarded as the only remaining instance of the ‘best
evidence rule,’ under which a party must produce the best evidence that the
nature of the case will allow.
 The rationale for the rule is to reduce the risks of fraud, mistake and
inaccuracy which mi ght result from proof by either production of a copy of the
document or parol evidence of its contents.
 This rule is however subject to several very important exceptions most
notably, public documents, contents of which may be proved by a certified
copy.

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GENERAL REQUIREMENTS OF PRIMARY EVIDENCE

 NB: According to section 65 of the Act:

1. Where a document is executed in several parts, each part is primary
evidence of the document ;
2. Where a document is executed in counterpart, each counterpart being
executed by one or some of the parties only, each counterpart is
primary evidence as against the parties executing it ;
3. Where a number of documents are all made by one uniform process,
as in the case of printing, lithography or photography, each is primary
evidence of the contents of the rest; but where they are all copies of a
common original they are not primary evidence of the contents of the
original;
4. Micro-films of a document, reproductions of the image, images
embodied in such micro -films, facsimile copies of a document and
images of a document derived or captured from the original document
are deemed to be documents and are admissible in any proceedings
without further proof of production of the original, as evidence of any
contents of the original or of any fac ts stated therein of which direct
evidence would be admissible;
5. A statement contained in a document and included in printed material
produced by a computer (i.e. a printer printout) is deemed to be a
document and admissible in any proceedings without furth er proof of
production of the original, as evidence of any contents of the original
or of any facts stated therein of which direct evidence would be
admissible if it meets the conditions set out in section 65 (6).

TYPES OF PRIMARY EVIDENCE OF CONTENTS OF A DOCUMENT

1. THE ORIGINAL

 This refers to the primary evidence par excellence of the contents of a

document.
 At times it is necessary to have regard to the purpose of the party against
whom the contents are tendered in evidence.
 It is not always easy to know when a document can be said to be the original
e.g. in the case of a telegram if contents are tendered against the sender the
original is the message handed in at the post office.

2. COPY OF DOCUMENT REQUIRING REGISTRATION OR ENROLMENT

 Where a document is required by law or practice or usage to be filed in a

court or post office, when thus filed, the copy issued by the court or other
office may be treated as the original.
 See Section 97 (2) (a) of KEA for example the probate is conclusive evidence
of the words of the will in respect whereof a grant was made: It constitutes
the primary evidence of the will.
 However the court may examine the original will if a question of construction
arises. Hence everything turns on the purpose for which the contents are
tendered.

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3. ADMISSIONS

 An informal admission by a party to the litigation constitutes primary

evidence against him of the contents of the original document.

Slatterie vs. Pooley

An action on a deed by which the defendant covenanted to indemnify the plaintiff

against certain debts contained in the schedule to another deed which was
inadmissible because not duly stamped, an oral admission by the defendant that a
particular debt was included in the schedule was held to be admissible against him.

It was held that parol admission by a party to a suit is always receivable in evidence
against him although it relates to the contents of a deed or other written instrument
and even though its contents be directly in issue in the cause.

In the words of Park e B “The reason why such parol statements are admissible,
without notice to produce or accounting for the absence of the written instrument is
that they are not open to the same objection which belongs to parol evidence from
other sources where the written evidence might have been produced: such evidence
is excluded from the presumption of its untruth, arising from the very nature of the
case, where better evidence is withheld; whereas what a party himself admits to be
true may reasonably be presumed to be so”.

LIMITATION TO THE GENERAL RULE

1. The rule as to production of primary evidence only applies where one

seeks to rely on the contents of the document; it does not apply where
one merely wishes to prove the fact of the existence of the document.
2. It is applied only to cases in which direct reliance is placed on the
words used in a document. For instance although relationships such as
those of a landlord and a tenant or partnership are typically created by
a document they can be proved by other evidence e.g . payment of
rent or witness’s assertion that someone is his partner.
3. The rule allows reference to be made to the terms of a document for
the purpose of identifying it. Here the distinction is made between
referring to a document as a means of identifying it and as a means of
communicating ideas.
4. If the existence of a document is in issue it may be proved without
recourse to the original. The general rule kicks in the moment when
reliance is placed upon the contents testimonially.

EXCEPTIONS TO THE GENERAL RULE

PROVING CONTENTS OF A DOCUMENT: WHEN SECONDARY EVIDENCE IS

ADMISSIBLE

 If the law were to strictly insist on primary evidence of a document, many

cases would fail, especially where the original is lost or is in the possession of
the party against whom the document is sought to be proved.
 Accordingly, section 68 (1) of the Evidence Act provides for the admissibility
of secondary evidence of the existence, condition or contents of a document
in the following cases:

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 1. When the original is shown or appears to be in the possession or
power of—
a) the person against whom the document is sought to be
proved; or
b) a person out of reach of, or not subject to, the process of the
court; or
c) any person legally bound to produce it; and when, after the
notice required by section 69 has been given, such person
refuses or fails to produce it;
2. When the existence, condition or contents of the original are proved to
be admitted in writing by the person against whom it is proved, or by
his representative in interest;
3. When the original has been destroyed or lost (see Sugden v Lord St.
Leonard's [1876] Probate 154), or when the party offering evidence of
its contents cannot, for any other reason not arising from his own
default or neglect, produce it in a reasonable time;

Sugden vs. Lord [Link]

The deceased made his will 5 years prior to his death. During the last 2 years of his
life, he was very sick and it is his daughter who kept the box that contained his last
will and testament. She constantly secretly opened the bo x and read its contents.
Unfortunately the will got lost and could not be found. At the probate hearing it was
claimed that she could recite the contents of the will. Her solicitors suggested that
she writes out the purport thereof.
The court held that the contents of a will just like those of any other lost document
may be proved by secondary evidence. Further that a declaration, written or oral,
made by a testor both before and after the execution of his will is admissible as
secondary evidence of its con tents in the event of its loss. Finally it was also held
that contents of a lost will may be proved by the evidence of a single witness though
interested, whose veracity and competency are [Link] the contents of a
lost will are not completely pro ved, probate will be granted to the extent to which
they are proved.
4. When the original is of such a nature as not to be easily movable (e.g.
a tombstone or a wall. See Mortimer v M’Callan (1840) 6 M & W 58);
5. When the original is a public document within the meaning of section
79, i.e. a document forming the acts or records of the acts —– of the
sovereign authority; or – of official bodies and tribunals; or – of public
officers, legislative, judicial or executive, whether of Kenya or of any
other country; or – public records kept in Kenya of private
[Link]: The rationale for this exception relating to public
documents is that production of the originals of public documents
might entail a high degree of public i nconvenience. Secondary
evidence of public d ocuments is normally given by way of certified
copies.
6. When the original is a document of which a certified copy is permitted
by the Evidence Act or by any written law to be given in evidence (see
sections 80 and 81 of the Evidence Act);
7. When the original consists of numerous accounts or other documents
which cannot conveniently be examined in court, and the fact to be
proved is the general result of the whole collection.

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Proof of documents by secondary evidence.

68. (1) Secondary evidence may be given of the existence, condition or contents of a document in the
following cases-
(a) when the original is shown or appears to be in the possession or power of -
(i) the person against whom the document is sought to be proved; or
(ii) a person out of reach o f, or not subject to, the process of the court; or
(iii) any person legally bound to produce it, and when, after the notice required by section 69 of
this Act has been given, such person refuses or fails to produce it;
(b) when the existence, condition o r contents of the original are proved to be admitted in writing by
the person against whom it is proved, or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents
cannot, for any other reason not arising from his own default or neglect, produce it in a
reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 79;
(f) when the original is a document of which a certified copy is permitted by this Act or by any
written law to be given in evidence;
(g) when the original consists of numerous accounts or other documents which cannot conveniently
be examined in court, and the fac t to be proved is the general result of the whole collection.
(2) (a) In the cases mentioned in paragraphs (a), (c) and (d) of subsection (1), any secondary
evidence of the contents of the document is admissible.
(b) In the case mentioned in subsection ( 1) (b), the written admission is admissible.
(c) In the cases mentioned in paragraphs (e) and (f) of subsection (1), a certified copy of the
document, but no other kind of secondary evidence, is admissible.
(d) In the case mentioned in subsection (1) (g) , evidence may be given as to the general result of the
accounts or documents by any person who has examined them, and who is skilled in the
examination of such accounts or documents.

Certified copies of public documents.

80. (1) Every public officer h aving the custody of a public document which any person has a right to
inspect shall give that person on demand a copy of it on payment of the legal fees therefor, together with a
certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case
may be, and such certificate shall be dated and subscribed by such officer with his name and his official
title, and shall be sealed whenever such officer is authorized by law to make use of a seal, and such copies
so certified shall be called certified copies.
(2) Any officer who by the ordinary course of official duty is authorized to deliver copies of public
documents shall be deemed to have the custody of such documents within the meaning of this section.

Proof by certified copies.

81. Certified copies of public documents may be produced in proof of the contents of the documents
or parts of the documents of which they purport to be copies.

MATTERS TO NOTE ABOUT SECONDARY EVIDENCE

1. Secondary evidence of the co ntents of a document may take the form

of a copy, a copy of a copy or oral evidence.
2. Where secondary evidence is admissible, there is a general rule that
“there are no degrees of secondary evidence”. Accordingly, although
less weight may attach to inferior forms of secondary evidence, there
is no obligation to tender ‘the best copy’ rather than an inferior copy or

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 a copy of a copy, and oral evidence of the contents is admissible even
if a copy or some other more satisfactory type of secondary evidence
is available.
3. The purpose of the Notice to Produce a Document provided for under
section 69 of the Evidence Act is not to notify the other partly that
reliance will be placed on the document so that he can prepare
evidence to explain or confirm it, but merely to give him sufficient
opportunity to produce the original if he wishes or, if he does not, to
enable the party giving the Notice to adduce secondary evidence.
4. A party who fails to comply with a Notice to Produce and thereby
obliges his adversary to give se condary evidence cannot subsequently
rely on the original;
5. A party who complies with a Notice to Produce may require the party
who served the Notice to put the original document in evidence.
Accordingly, a party who serves a notice to produce merely as a
means of inspecting a document runs the risk, should its contents
prove unfavourable to his case, of being compelled to use it.

PROOF OF THE DUE EXECUTION A DOCUMENT

 Proof of due execution of a document normally entails showing that the

document was written or signed by the person by whom it purports to have
been written or signed.
 There are many ways of proving the due execution of a document, including:
1. Direct oral evidence by the maker or signatory himself that he made or
signed the document; or
2. Direct oral evidence by any other person who witnessed the maker or
signatory of the document make or sign it; or
3. Admissible hearsay to the effect that the maker or signatory made or
signed the document, as the case may be; or
4. The opinion of a person who, alth ough not a witness to the execution
of the document, is acquainted with the handwriting of the maker or
signatory of the document; or
5. The comparison of the document in question with another document
which is proved or admitted to have been signed by the person in
question (see sections 48 and 76)

Opinions of experts.

48. (1) When the court has to form an opinion upon a point of foreign law, or of science or art, or as to
identity or genuineness of handwriting or finger or other impressions, opinions upo n that point are
admissible if made by persons specially skilled in such foreign law, science or art, or in questions as to
identity or genuineness of handwriting or finger or other impressions.

(2) Such persons are called experts.

Comparison of signatures, seals, etc.

76. (1) In order to ascertain whether a signature, writing or seal is that of the person by whom it
purports to have been written or made, any signature, writing or seal, admitted or proved to the satisfaction
of the court to have been written or made by that person, may be compared by a witness or by the court
with the one which is to be proved, although that signature, writing or seal has not been produced or proved
for any other purpose.

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 (2) The court may direct any person present in court to write any words or figures for the purpose of
enabling the court to compare the words or figures so written with any words or figures alleged to have
been written by such person.
(3) This section applies with necessary modifications to finger im pressions.

GENERAL RULE: PROOF OF THE DUE EXECUTION OF A DOCUMENT

 There is a general common law rule, applicable to both civil and criminal
proceedings, that a document will only be admitted in evidence upon proof of
due execution . In practice, the rule is seldom applied to public documents, as
the due execution of such documents is governed by presumptions (see, for
instance, section 77 (2) of the Evidence Act).

Reports by Government analysts and geologists .

77. (1) In criminal proceedings any docu ment purporting to be report under the hand of a Government
analyst, medical practitioner or of any ballistics expert, document examiner or geologist upon any person,
matter or thing submitted to him for examination or analysis may be used in evidence.
(2) The court may presume that the signature to any such document is genuine and that the person signing it
held the office and qualifications which he professed to hold at the time when he signed it.
(3) When any report is so used the court may, if it thin ks fit, summon the analyst, ballistics expert,
document examiner, medical practitioner, or geologist, as the case may be, and examine him as to the
subject matter thereof.

 Rules analogous to the above general rule are to be found in sections 70 to

76 of the Evidence Act.

Proof of allegation that persons signed or wrote a document.

70. If a document is alleged to be signed or to have been written wholly or in part by any person, the
signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting
must be proved to be in his handwriting.

Proof of execution of document required by law to be attested.

71. If a document is required by law to be attested it shall not be used as evidence until one attesting
witness at least has been called for the purpose of proving its execution, if there is an attesting witness alive
and subject to the process of the court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document
which has been registered in accordance with the provisions of any written law, unless its execution by the
person by whom it purports to have been executed is specifically denied.

Proof where no attesting witness found .

72. Where evidence is required of a document which is required by law to be attested, and none of the
attesting witnesses can be found, or where such witness is incapable of giving evidence or cannot be called
as a witness without an amount of delay or expense which the court regards as unreasonable, it must be
proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the
person executing the document is in the handwriting of that person.

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Admission of execution of attested document.

73. The admission of a party to an attested document, of its execution by himself, shall be sufficient proof
of its execution as against him, though it be a document required by law to be attested.

Proof where attesting witness denies execution.

74. If the attesting witness denies or does not recollect the execution of a document, its execution may be
proved by other evidence.

Proof of document not required to be attested .

75. An attested document not required by l aw to be attested may be proved as if it was unattested.

Comparison of signatures, seals, etc.

76. (1) In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to
have been written or made, any signature, wri ting or seal, admitted or proved to the satisfaction of the court
to have been written or made by that person, may be compared by a witness or by the court with the one
which is to be proved, although that signature, writing or seal has not been produced o r proved for any
other purpose.
(2) The court may direct any person present in court to write any words or figures for the purpose of
enabling the court to compare the words or figures so written with any words or figures alleged to have
been written by such person.
(3) This section applies with necessary modifications to finger impressions.

 Section 70 provides:” If a document is alleged to be signed or to have been

written wholly or in part by any person, the signature or the handwriting of so
much of the document as is alleged to be in that person’s handwriting must
be proved to be in his handwriting .”
 Section 76 provides:“(1) In order to ascertain whether a signature, writing or
seal is that of the person by whom it purports to have been written or m ade,
any signature, writing or seal, admitted or proved to the satisfaction of the
court to have been written or made by that person, may be compared by a
witness or by the court with the one which is to be proved, although that
signature, writing or seal has not been produced or proved for any other
purpose.(2) The court may direct any person present in court to write any
words or figures for the purpose of enabling the court to compare the words
or figures so written with any words or figures alleged to h ave been written
by such person.
 NB: This subsection envisions the comparison of “words or figures,” not
signatures. See court record in William Kabogo Gitau v George Thuo & 2
Others, Election Petition No. 10 of 2008). (3) This section applies with
necessary modifications to finger impressions.”

PROOF OF THE DUE ATTESTATION OF A DOCUMENT

 The law often requires that documents not only be signed or sealed (i.e.
executed) but also that the signature or seal be witnessed (or attested) by a
person other than the one signing/sealing/executing the document. Common
examples include deeds, wills and other testamentary documents and
documents transferring an interest in land.

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  Where attestation is required by law, proof of due execution of a document
often requires evidence of attestation.
 Generally, where a document is required by law to be attested, at least one of
the attesting witnesses must be called. Section 71 of the Evidence Act
provides:” If a document is required by law to be attested it shall not be used
as evidence until one attesting witness at least has been called for the
purpose of proving its execution, if there is an attesting witness alive and
subject to the process of the court and capable of giving evidence: Provided
that it shall not be necessary to call an attesting witness in proof of the
execution of any document which has been registered in accordance with the
provisions of any written law, unless its execution by the person by whom it
purports to have been executed is specifically denied.”
 Where all the attesting witnesses are dead, insane or beyond the jurisdiction
of the court or untraceable, secondary evidence of attestation by proof of the
handwriting of one of the attesting witnesses is required.
 NB: at common law, the proof of a will requ ires that one of the attesting
witnesses, if available, be called to proof its due execution. Where such a
witness is available, no other evidence will suffice to prove the due execution
of the will.

PRESUMPTIONS RELATING TO DOCUMENTS

 In practice, the du e execution of a document is frequently admitted or

presumed, thereby rendering proof of handwriting and attestation
unnecessary.
 The Evidence Act has some noteworthy provisions on presumptions relating to
documents, namely: -
1. Section 77 (2): presumption as to the genuineness of the signatures of
government analysts, medical practitioners, ballistic experts,
document examiners and geologists;
2. Section 78 (2): presumption as to the genuineness of the signatures of
officers appointed by the attorney general appearing on a certificate in
the form given in the Schedule to the Act (relating to photographic
evidence);
3. Section 83: presumptions as to genuineness of certified documents;
4. Section 84: presumption as to genuineness of documents purporting
to be records of evidence given in a judicial proceeding;
5. Section 85: presumption as to the due making or tenor of all written
laws or notices purporting to be published by the Government Printer
or contained in a copy of the Kenya Gazette;
6. Section 86: presumption as to th e genuineness of every document
purporting to be the London Gazette, the Edinburg Gazette, or the
official gazette of any country of the commonwealth, a newspaper or
journal or a document directed by any law to be kept by any person;
7. Section 89: presumption as to the publishing and accuracy of maps or
plans purporting to be made or published by the authority of the
Government, or any department of the Government, of any country in
the Commonwealth;
8. Section 90: presumption as to the genuineness of every book
purporting to be printed or published under the authority of the
government of any country or to contain any of the laws of that
country, and of every book purporting to contain reports of decisions
of the courts of any country;

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 9. Section 91: Presumption as to the due execution of every document
purporting to be a power of attorney;
10. Section 94: presumption that every document called for and not
produced after notice to produce was attested, stamped and executed
in the manner required by law; and
11. Section 96: presumption as to the due execution and attestation of
documents older than 20 years where such documents are produced
from any custody which the court in the particular case considers
proper.

THE STAMP DUTY ACT AND ADMISSIBILITY OF UNSTAMPED DOCUMENTS

 Part II of the Stamp Duty Act (Chapter 480 of the Laws of Kenya) requires
that certain documents (as set out in the Schedule) be stamped (e.g.
company memoranda and articles of association, charges & mortgages,
transfers etc).
 Section 19 (1) of the Stamp D uty Act provides as follows: – “Subject to the
provisions of subsection (3) of this section and to the provisions of sections
20 and 21, no instrument chargeable with stamp duty shall be received in
evidence in any proceedings whatsoever, except –
(a) In criminal proceedings; and
(b) In civil proceedings by a collector to recover stamp duty, unless it is duly
stamped.”

EXTRINSIC EVIDENCE AND DOCUMENTS

 As a general rule, extrinsic evidence ( often referred to as “parole evidence”

because it is usually oral, although it may consist of other documents ) is
inadmissible when it would, if accepted, have the effect of —
a) Adding to; or
b) Varying; or
c) Contradicting, the terms of a judicial record, a transaction required by
law to be in writing, or a document constituting a valid and effective
contract, or other transaction.
 See

Bank of Australasia v Palmer [1897] A. C. 540

The bank had agreed to offer an overdraft facility (for £2,000.00) to the Respondent
on certain written terms . The Respondent had sued the bank in the lower court for
dishonouring a cheque he had drawn during the currency of the overdraft facility.
The issue was whether the trial judge was in error in admitting evidence of a
conversation which had taken place bet ween the Respondent and a manager of the
Appellant, and a document which did not form part of the agreement but to which
the bank had appended the Plaintiff’s name after the agreement had already been
made. The Appellant appealed, contending that evidence of the conversation was
inadmissible in so far as it was offered in contradiction of the written agreement
between the Appellant and the Respondent.

Held (dismissing the appeal): Parol evidence cannot be said to be improperly

admitted as contradicting or varying a written agreement when it relates to the
circumstances under which the plaintiff’s name as appended to a document which

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was not part of the agreement, but which was placed before him for signature by the
defendant after the agreement had been con cluded.
NB: It was common ground between the parties that parol evidence could not be
adduced to add to, subtract from, vary or modify the terms of a written contract (see
p. 545), and therefore the Court did not have to rule on this aspect of the case .

 See Also

Angell v Duke (1875) 32 LT 320

The defendant agreed in writing to rent a house to the plaintiff together with the
furniture therein. The plaintiff tendered evidence that, before the execution of the
writing, the defendant had orally agreed to se nd in additional furniture.

Held: Evidence of the oral agreement was inadmissible because, having once
executed the writing, without making the terms of that agreement part of it, the
plaintiff could not afterwards set up the agreement since it contradict ed the
restriction of the written document to the furniture already in the house.

 The general rule is most frequently invoked with regard to contracts, but it
extends to all the other matters set out above.
 The rules as to (in) admissibility of extrinsic evidence are set out in Part VI of
the Evidence Act.
 Section 97 (1) of the Evidence Act states:” When the terms of a contract, or
of a grant, or of any other disposition of property, have been reduced to the
form of a document, and in all cases in which any matter is required by law to
be reduced to the form of a document, no evidence shall be given in proof of
the terms of such contract, grant or other disposition of property, or of such
matter, except the document itself, or secondary evidence of its contents in
cases in which secondary evidence is admissible under the provisions of this
Act.”
 Section 98 of the Evidence Act further provides: “When the terms of any
contract or grant or other disposition of property, or any matter required by
law to be reduced to the form of a document, have been proved according to
section 97, no evidence of any oral agreement or statement shall be admitted
as between the parties to any such instrument or their representatives in
interest for the purpose of contradicting, varying, adding to or subtracting
from its terms:
 Provided that
i) any fact may be proved which would invalidate any document,
or which would entitle any person to any decree or order
relating thereto; such as fraud, intimidation, illegality, want of
due execution, want of capacity in any contracting party, want
or failure of consideration, or mistake in fact or law;
ii) the existence of any separate oral agreement as to any matter
on which a document is silent, and which is not inconsistent
with its terms, may be proved, and in considering whether or
not this paragraph of this proviso applies, the court shall have
regard to the degree of formality of the document;
iii) the existence of any separate oral agreement constituting a
condition precedent to the attaching of an y obligation under
any such contract, grant or disposition of property may be
proved;

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 iv) the existence of any distinct subsequent oral agreement to
rescind or modify any such contract, grant or disposition of
property may be proved, except in cases in which such
contract, grant or disposition of property is by law required to
be in writing, or has been registered according to the law in
force for the time being as to the registration of such
documents;
v) any usage or custom by which incidents not expressly
mentioned in any contract are usually annexed to contracts of
that description may be proved, if the annexing of such incident
would not be repugnant to, or inconsistent with, the express
terms of the contract;
vi) any fact may be proved which shows in what manner the
language of a document is related to existing facts.”

 The Evidence Act further provides for the following exceptions to the rule
against the admission of extrinsic evidence:
i) Evidence to explain a patent ambiguity (section 99);
ii) Evidence to explain a la tent ambiguity (section 101);
iii) Evidence to show that a document applies to one or more of
several subjects, things or persons (section 102);
iv) Evidence to show that a document applies to one of several sets of
facts (section 103);
v) Evidence to explain the mea ning of special words (section 104);
 See

Re Rees, Williams v Hopkins [1950] Ch 204

A testator by his will appointed his friend and his solicitor (thereinafter referred
called his trustees) to be executors and trustees thereof. He devised and bequeathed
the whole of his property “( subject to payment of my funeral and testamentary
expenses and debts) unto my trustees absolutely, they well knowing my wishes
concerning the same… ”

An issue arose as to whether extrinsic evidence was admissible to show that th e

testator had orally expressed that he intended the trustees (i.e. the friend and
solicitor) to take the property beneficially.

Held: Extrinsic evidence is not admissible to show that a gift to a person in a will
which is fiduciary on the face of it is i ntended as a beneficial disposition in favour of
that person; on true construction of the will, the gift was to the trustees as trustees
and evidence was not admissible to show that the testator intended them to take the
estate absolutely and beneficially, subject to an obligation to give effect to the
testator’s wishers communicated to them during his life. Accordingly, the estate
subject to the purposes indicated by the testator was undisposed of by the will and
passed as intestacy.

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LECTURE 11: FRIDAY 22 ND MARCH 2013 – SHERIA HALL 5.30-8.30 PM

MATTERS NOT REQUIRING PROOF

 Oral evidence is the traditional method of proving facts.

 As a general rule all facts in issue must be proved and any condition
precedent must be proved by the person who seeks to adduce such evidence.
 Generally, the courts will treat facts in issue or relevant facts as established if
they are proved by evidence.
 However some matters need not be proved in evidence for three reasons
a) First some matters need not be proved because they are well known or
they have been already admitted by the parties.
b) Secondly proving some matters may jeopardize national security
especially matters which are considered classified.
c) Thirdly proving some matters may be prejudicial to a fair trial in the
way likely to mislead the Court and thereby jeopardize justice.
 In some instances, however, a party need not adduce evidence to establish
certain matters.
 The instances include (situations where)—
1. Presumptions-The law presumes a fa ct in issue in a party’s favour;
2. Judicial Notice-The law permits the court to take judicial notice of a
fact in issue;
3. Admissions-The adverse party has admitted a fact in issue; and
4. Estoppels-Where the law estops or precludes the adverse party from
contesting the existence of a fact in issue.

1. JUDICIAL NOTICE

 Judicial notice is often defined as the liberty accorded to a judicial officer

acting as such, to recognize the existence or non -existence of certain facts or
phenomena without calling for eviden ce.
 According to Black’s Law Dictionary, 8th Edition. Judicial notice refers to the
power of the court to accept, for purposes of convenience and without
requiring a party’s proof, of well -known and indisputable facts.
 The expression ‘judicial notice’ mean s recognition or notice of the truth of the
facts taken by a judge which do not require proof by any evidence because
the matters noticed are common notoriety. See Section 59 of the KEA.

Facts judicially noticed.

59. No fact of which the court shall take judicial notice need be proved.

RATIONALE UNDERLYING JUDICIAL NOTICE

1. Certain facts are beyond serious dispute, so notorious or of such

common knowledge that they require no proof or are open to no
evidence in rebuttal; and
2. To require proof of such fa cts, which in some cases could cause
considerable difficulty, would be to waste both time and money and
would result in inconsistency between cases in relation to which
common sense demands uniformity:
 See in

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United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd
[1985] KLR 898

The court was invited to take judicial notice of delays in resolution of disputes before
the Courts of Bombay. The dispute revolved around a choice of forum clause in a
contract.

Citing various English authorities, the Court made the following observations with
regard to judicial notice and its rationales:
1. “Sarkar on Evidence, 10th Ed P 517, tells us that some facts are so
notorious in themselves or of such public (knowledge) and universal
character that the court i s bound to recognize and take notice of them.
Such facts do not require proof. No exhaustive list of such notorious
facts has been or can be made for they are too numerous, and of an
increasing trend; no limit can be set to their numbers ’. 907.
2. “The doctrine of judicial notice “is an instrument of great capacity in
the hands of a competent judge…The failure to exercise it tends daily
to smother trials with technicality and monstrously lengthens them
out” (Thayer Pr. Treatise, 1898, p 309).__p. 908
3. “To require that a judge should affect a cloistered aloofness from facts
that every other man in court is fully aware of, and should insist on
having proof on oath of is a rule that may easily become pedantic and
futile”._p. 908

STATUTORY PROVISIONS OF JUDICIAL NO TICE IN THE KEA

 Sections 59 and 60 of the Evidence Act set out the Kenyan statutory law on
judicial notice.
 Section 59 provides: “No fact of which the court shall take judicial notice need
be proved”.
 Section 60 (1), on the other hand, requires the court to take judicial notice of
the following facts:

CHAPTER III - PROOF

Part 1 - Facts Requiring No Proof

Facts judicially noticed.

59. No fact of which the court shall take judicial notice need be proved.

Facts of which court shall take judicial notice .

60. (1) The courts shall take judicial notice of the following facts –

(a) all written laws, and all laws, rules and principles, written or unwritten, having the force of law,
whether in force or having such force as aforesaid before, at or after the commencement of this Act, in
any part of Kenya;

(b) the general course of proceedings and privileges of Parliament, but not the transactions in their
journals;

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(c) Articles of War for the Armed Forces;

(d) (Deleted by L.N. 22/ 1965).

(e) the public seal of Kenya; the seals of all the courts of Kenya; and all seals which any person is
authorized by any written law to use;

(f) the accession to office, names, titles, functions and signatures of public officers, if the fact of their
appointment is notified in the Gazette;

(g) the existence, title and national flag of every State and Sovereign recognized by the Government;

(h) natural and artificial divisions of time, and geographical divisions of the world, and public
holidays;

(i) the extent of the territories comprised in the Commonwealth;

(j) the commencement, continuance and termination of hostilities between Kenya and any other State
or body of persons;

(k) the names of the members and officers of the court and of their deputies, subordina te officers and
assistants, and of all officers acting in execution of its process, and also of all advocates and other
persons authorized by law to appear or act before it;

(l) the rule of the road on land or at sea or in the air;

(m) the ordinary course of nature;

(n) the meaning of English words;

(o) all matters of general or local notoriety;

(p) all other matters of which it is directed by any written law to take judicial notice.

 See Also Section 60 (2) and (3)

60 (2) In all cases within subsection (1), and also on all matters of public history, literature, science or art,
the court may resort for its aid to appropriate books or documents of reference.

60 (3) If the court is called upon by any person to take judicial notice of any fact, it may refuse to do so
unless and until such person produces any such book or document as it considers necessary to enable it to
do so.

MATTERS SO FAR NOTICED WITHOUT INQUIRY

 Case law indicates that judicial notice has been extended to many varied facts
without inquiry, including the fact that —
1. a fortnight is too short a period for human gestation (R v Luffe (1807)
8 East 193);

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 2. The advancement of learning is among the purposes for which the
University of Oxford exists (Re Oxford Poor Rate Case (1857) 9 E& B
184);
3. The duration of the normal period of human gestation is around 9
months (Preston-Jones v Preston-Jones [1951] A.C. 391 HL.
4. The streets of London are crowded and dangerous (Dennis [Link]
[1916] 2 K.B. 1).
5. Camels are mansaetae naturae (i.e. non dangerous animals-McQuaker
v Goddard [1940] 1 K.B. 687 and therefore the owners of a zoo were
not liable for personal injuries resulting from a camel bite in the
absence of evidence of scienter.
6. Cats are kept for domestic purposes ( Nye vs. Niblet [1918] 1 K.B. 23);
7. Men and Women sharing a bed are likely to have sexual intercourse
(Woolf v Woolf [1931] P 134 ;);
8. Criminals have unhappy lives ( Burns vs. Edman [1970] 1 All ER 886);
and
9. The court may be taken to know the meaning of ordinary expressions
in the English language (Chapman v Kirke [1948] 2 All ER 556).
10. A postcard is the sort of document which might be read by anyone
(Huth vs. Huth [1915] 3 K.B. 32, but not that husbands read their
wives’ letters);
11. There was an attempted military coup in Kenya on 1st August 1982
(Diego v Republic [1985] KLR 621);

MATTERS NOTICED AFTER INQUIRY

1. The doctrine of judicial notice applies to facts that are neither

notorious nor of common knowledge. Such facts (especially those
relating to political, historical, customary or p rofessional matters) may
be judicially noticed after inquiry.
2. Section 60 (3) of the Evidence Act permits the court to inquire into
certain matters before taking judicial notice of them. In making the
inquiry, the judge may consult a variety of sources, inc luding
certificates from Ministers and officials, learned treatises, works of
reference and the oral statements of witnesses.
 NB: According to Adrian Kean, the court should be careful in according judicial
notice to a non-notorious fact, as to do so would be to improperly usurp the
function of the jury as the tribunal of fact.

CASE LAW

Preston-Jones v Preston Jones [1951] H.L. (E) 391

A husband left his wife in the UK and resided overseas for about 9 months. There
was no marital coitus during this perio d. Three months after the husband’s return to
the UK, the wife gave birth to a child (the second born). The child was born
apparently full term and through normal [Link] husband contended that the
child was not his, and petitioned for divorce on the gr ound of adultery.

The Charge of adultery was based on the circumstances surrounding the child’s birth,
the husband contending that in the ordinary course of nature, the human gestation
period was 9 months and not 12 or [Link] wife denied the charge of adul tery.

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The first trial judge held that the charge of adultery was not proved (by
evidence).The Court of Appeal ordered a re -trial of the matter. The husband
appealed to the House of Lords.

Held (by the House of Lords): The onus of proof on the husband did not extend to
establishing the scientific impossibility of his being the father of the child, and that,
on the whole evidence, the wife's adultery had been proved beyond reasonable
doubt.

In the words of Lord Morton of Henryton (at p.413):“ In my opinion the court is
entitled to take judicial notice of the fact that the normal period from fruitful coitus
to birth does not exceed 280 days. That is one of the ordinary facts of nature as to
which no evidence is required. If a husband proves that a child has b een born 360
days after he last had an opportunity of intercourse with his wife, and that the birth
was a normal one, and if no expert evidence is called by either side, I am of opinion
that the husband has proved his case beyond reasonable doubt .”

Nye v Niblett & Others [1918] K.B. 23

The appellants, three boys, were charged with maliciously killing two cats, contrary
to the provisions of section 41 of the Malicious Damage Act, 1861:“ whosoever shall
unlawfully an maliciously kill, main or wound any dog, bird, best or other animal, not
being cattle, but being either the subject of larceny at common law, or being
ordinarily kept in a state of confinement, or for nay domestic purpose, shall be guilty
of an office punishable on summary conviction .”

An issue arose as to whether it was necessary to prove that the cats were “ ordinarily
kept for a domestic purpose .”

The trial judge dismissed the case on the ground that the prosecution had not
adduced evidence to show that the cats were kept for a domestic purpo se (it was
argued the cats might have been wild), but the prosecution claimed that they
belonged to a Mr. William Smith and a Mr. Charles. The prosecutor appealed.

Held: It was not necessary for the prosecution to prove that the particular animal
killed was in fact kept for a domestic purpose if it belonged to a class of animals
which are ordinarily so kept. In the words of Avory J (at p. 25):“Cats being to a
genus or class of animals that are ordinarily kept for domestic purposes. There is no
doubt that that is the usual description of cats. “Domestic cats” is a well known
expression. That being so, it was not necessary to prove that the particular cats in
question were at the time being kept for domestic purposes.”

Burns v Edman [1970] 2 Q.B. 541

The plaintiff’s husband was killed in a motor accident for which he was 25% to
blame. The plaintiff filed, on behalf of her deceased husband, an action for personal
injuries and loss of expectation of life. The plaintiff also filed a separate claim for
herself and her children for the loss of dependency arising from the death of the
deceased. Records from the Home Office indicated that the deceased had received
two prison sentences in respect of robbery and being an accessory to a felony.

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There was no evidence t hat the deceased had, during his lifetime, any honest
employment or any capital assets. The plaintiff was aware that such money as her
husband gave her came from the proceeds of crime.

Held:
1. The court was entitled to take judicial notice of the fact th at the life of a criminal
was not a happy one. Accordingly, damages for loss of expectation of life, in reality
were damages for loss of the element of happiness in life, would be assessed at one -
half of the maximum sum awarded; and
2. As regards the separ ate claim of the plaintiff and her children under the Fatal
Accidents Act 1846, since the “injury” resulting to them from the death of the
deceased was a deprivation of support flowing directly from criminal offences; it was
a turpi causa which was not maintainable under the Act of 1846.

Duff Development Co Ltd v Government of Kelantan [1924] A.C. 797

The defendant applied for an order against the enforcement of an arbitral award on
the ground that Kelantan was an independent sovereign state. The Secretar y of
State for the Colonies, in reply to an inquiry from the court, wrote that Kelantan was
a sovereign state and that the Sultan was its ruler.

Held: “It has been the practice of the courts, when such a [political] question is
raised, to take judicial no tice of the sovereignty of a state, and for that purpose (in
case of any uncertainty) to seek information from a Secretary of State and when
information is so obtained the court does not permit it to be questioned by the
parties [by way of evidence].

 Although section 60 (1) (a) of the Evidence Act empowers the court to take
judicial notice of “all written laws, and all laws, rules and principles,written or
unwritten, having the force of law …in Kenya,” the courts have consistently
held that a party who seeks to rely on African customary law must proof it by
(expert) evidence.
 See

Earnest Kinyanjui Kimani v Muiru Gikanga & Another [1965] EA 735

The question whether customary law should be judicially noticed arose in this case.
The issue was whether Kikuyu customary law was capable of being judicially
[Link] was father of both the respondents and uncle to the appellant and
was the owner of 100 acres of land by the time he died in [Link] the appellant
was in detention, the respondent registered t he title under his name. Later on,the
appellant sued them arguing that they held 30 acres in trust for him under the
Muhoi custom ( a kikuyu customary law practice whereby a squatter acquires a
right and title to some land after many years of labour in co ntribution towards and
on behalf of the land owner ).He argued that the court should take judicial notice of
the Kikuyu custom of muhoi as the basis for which he got land.

Judges were of the opinion that the party that seeks to rely on the customary law
should prove that custom as a matter of fact. This is because of the difficulty of
establishing what the customary law is at any given time since it is unwritten.

It was considered the problem of proof of customary law in Kenya Courts. The
question arose as a result of interpretation of section 60 (1) of the Evidence Act

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which provides that “Courts shall take judicial notice of all written laws, and all laws,
rules and principles written or unwritten, having the force of law, whether in force or
having such force as aforesaid before, at or after the commencement of this Act, in
any part of Kenya”. The Court observed that “Customary law is part of our law in
Kenya” .It was held that where African customary law is neither notorious nor
documented it must be est ablished for the court’s guidance by the party intending to
rely on it and then the appellant had failed to do [Link] was stated that as a matter of
practice and convenience in civil cases, relevant customary law, if it is incapable of
being judicially noti ced should be proved by evidence or expert opinion evidence
adduced by the party.

 The rationale for the decision in Kimani v Gikanga is the difficulty of

establishing the status of customary law at any given time, since it is
unwritten and dynamic.
 Under section 17, a magistrate’s court may call for and hear evidence of the
African Customary Law applicable to any case before it.

IMPORTANCE OF TAKING JUDICIAL NOTICE

1. First, It ensures that there is uniformity in decision of the courts

2. Second, it reduces th e incidents of embarrassments of the state by the
Court taking individual views on foreign matters as well as political
issues such as the nature of diplomatic relationship that exists
between parties.
3. Third, it saves time and expenses involved in proving matters which
could be proved easily and with certainty.

2. PRESUMPTIONS

 According to Phipson, presumptions are devices by which courts are entitled

to pronounce on an issue not withstanding that there is no evidence or that
there is little evidence to support it.
 Sarkar defines presumptions as an inference, affirmative or disaffirmative of
the existence of some facts, drawn by a judicial tribunal by a process of
probable reasoning from some matter of fact either judicially noticed,
admitted or establish ed legal evidence to the satisfaction of the tribunal.
 Presumptions are legal inference or assumptions or positions established in
law and based on the proven sets of facts. They are conclusions of truth of
some fact in question which may or must be drawn from other facts until the
contrary is proved.
 Presumptions refer to inferences/conclusions that a court is legally
empowered (sometimes, required) to draw in respect of certain facts. For the
most part, presumptions are based on considerations of public p olicy and
common sense, but not necessarily those of logic.
 Where the court is required to make the inference, it will do so
notwithstanding the availability/non-availability or insufficiency of evidence on
the fact in issue.
 Where the Court is merely empo wered or has discretion, rather than required,
to presume the existence of a fact, it may decline to do so where there is
evidence to the contrary.
 Depending on the circumstances of the case, the inferences/conclusions that
the courts make by way of presum ptions could be in the affirmative (i.e. on
the “yes”) or on the negative (i.e. on the “no”).

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  Where a presumption is made in favour of a party, its effect is to lower,
reduce or even extinguish the burden of proof he would otherwise have had
with respect to the fact in issue that is presumed. i.e presumptions have the
effect of placing on one or the other party the burden of proof in relation to a
fact or issue regardless of where the general burden of proof in the case lies.
 In other words, a presumption ma y or must be drawn in the absence of
evidence to the contrary, primarily the effect is to lower, drastically reduce or
altogether extinguish the burden or proof incumbent upon the person in
whose favour a presumption is drawn.

CATEGORIES OF PRESUMPTIONS

 There are three main categories of presumptions, namely —

1. Rebuttable presumptions of law.
2. Irrebuttable presumptions of law; and
3. Presumptions of fact.

 One must be keen enough to notice the difference between a presumption of

fact and a presumption of law. The difference is as follows:
a) Presumption of law derive their force from law while the presumption
of fact their force from common sense and logic.
b) A presumption of law applies to a class, the conditions of which are
fixed and uniform; a presumption of fac t applies to individual cases,
the conditions of which are inconsistent and fluctuating. Thus the
presumption of death arises whenever 7 years unexplained absence is
proved, but when it is necessary to establish the time of the death
more precisely the que stion must be decided on the evidence adduced
in each specific case.
c) Presumption of law are made by the court and in the absence of
opposing evidence are conclusive for the party in whose favour they
operate and for the purpose for which they operate; pres umptions of
fact result in inferences drawn by the tribunal of fact, who may
disregard them however cogent. In practice however these distinctions
are by no means easy to discern.

1. REBUTTABLE PRESUMPTIONS OF LAW

 These are inferences that may be drawn i n the absence of conclusive

evidence to the contrary.
 To rebut this presumption you need conclusive evidence.
 They are presumptions that are decreed by law.

COMMON EXAMPLES OF REBUTTABLE PRESUMPTION OF LAW

a) The presumption of genuineness in a document pur porting to be the

Kenya gazette. See Section 85 of KEA
b) There is the presumption of innocence that every person accused of a
crime is innocent until proved guilty and there is conclusive evidence
dispelling the innocence of the accused person such as circum stantial
evidence
c) There is presumption of sanity. The court is entitled to presume the
continuance of this state of affairs until the contrary is proved. See
Section 11 of the Penal Code.

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 d) The presumption that a child proved or admitted to have been born or
conceived during lawful wedlock (the basic facts) is legitimate (the
presumed fact);and
e) The presumption that a child aged between 8 and 12 years is not
criminally liable unless it can be shown that the child knew that its
action was morally and legally wrong.

KEY EXAMPLES OF REBUTTABLE PRESUMPTIONS

a. PRESUMPTION OF DEATH

 From time to time the court may be called upon to infer the fact of death from
circumstantial evidence.
 Such conclusion may be reached by the application of logic and known facts.
 The presumption of death is rebuttable presumption premised on the length
of time of the absence of the person presumed to be dead. The greater the
length of time, the weaker the support for the inference that she/he is alive.
 It is provided for under section 118 A of the KEA

Presumption of death

118A. Where it is proved that a person has not been heard of for seven years by those who might be
expected to have heard of him if he were alive, there shall be a rebuttable presumption that he is dead.

 For the presumption to hold, the following factors have to be considered:

1. There are persons who would be likely to have heard of him over that
period;
2. Those persons have not heard of him; and
3. All due enquiries have been made appropriate to the circumstances,
that person will be presumed to have died at some time within that
period.
CASE LAW

Chard v Chard [1956] All ER 259

The parties to a marriage celebrated in 1933 sought a decree of nullity on the ground
that the husband had contracted an earlier marriage in [Link] husband’s first wife
had last been heard of in 1917, and had reasons which might have led her not to
wish to be heard of by the husband or his family between 1917 and 1933 ( in
particular because the husband was in prison ).

An issue arose as to w hether the presumption of death applied to the first wife. If the
presumption of death applied the second marriage (of 1933) would have been valid.
It was not possible to trace anyone who, since 1917, would naturally have heard of
the first wife, as she wa s an orphan with no known parents, brothers, sisters or other
relatives. There was equally no evidence that her death had been registered
anywhere.
It was held:
1. The court could not accept the 1933 marriage certificate as evidence of
the validity of the mar riage and was put on inquiry as to the possibility
of the 1909 wife being alive in 1933.

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 2. Any presumption as to the continuance of life was one of fact.
3. The inference as to the life or death of the 1909 wife, therefore, fell to
be drawn from the facts of th e present case.
4. The correct inference being that she was alive in 1933, decrees of
nullity must be granted.

Prudential Assurance Co. v Edmonds [1877] 2 AC 487

A policy on the life of a Mr. Robert Nutt was granted in 1863. A suit was brought
upon the policy in 1874, and the question was whether Nutt was then alive or dead.

Mr. Nutt had been absent from his former home for more than seven years, having
left it in 1867. [Link]’s sister and brother -in-law, who lived where he had formerly
lived, gave evidence as to his absence, and said that they had not heard of him for
more than seven years.

On cross-examination, Mr. Nutt’s sister and brother -in-law said that a niece of his
had said that when she was in Melbourne, in December, 1872, or January, 1873, she
saw a man whom she believed to be her uncle, but he was lost in the passing crowd
before she was able to get to speak to him. No effort appeared to have been made to
find him at Melbourne, and the other relatives believed the niece to have been
mistaken. The jurymen expressed a similar opinion.

The trial Judge directed the jurymen that they " could not say that the man had not
been heard of during the last seven years when one of his relatives declared that she
had seen him alive and well within the last th ree years; and still less could they say
that he had never, been heard of, when all the members of the family stated that
they had heard what she had stated," and that “the ground for the presumption of
death from a man having been absent for seven years w as entirely removed by the
direct evidence that every relative had heard that he was alive ."

Held: The presumption of death did not apply because the basic facts had not been
established.

 A person seeking to establish the date of another person’s death m ust do so

by evidence proving that date. Therefore those who found a right upon person
having survived a particular date must establish that fact affirmatively by
evidence.

b. PRESUMPTION OF MARRIAGE

 There are three main distinctive presumptions relating to marriage, namely-

i) The presumption of formal validity;
ii) The presumption of essential validity; and
iii) The presumption of marriage arising from cohabitation.

i) The Presumption of Formal Validity

 The formal validity of a marriage depends on upon the law of the place where
the marriage is celebrated ( lex loci celebrationis).

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  A marriage may thus be held void for non-observance of the formalities
required by law (e.g. failure to duly publish banns or obtain a requisite
license).
 The presumption of formal vali dity of marriage holds that on the proof or
admission of the basic fact that a marriage was celebrated between persons
who intended to marry, the formal validity of the marriage will be presumed
in the absence of evidence to the contrary.
 See

Piers v Piers [1849] 2 HL 331

A man and a woman got married in a private dwelling without obtaining a special
license as required by the law. When the marriage turned sour, its validity was
questioned (on the ground that the special license had not been obtained).

It was held:
1. The question of the validity of a marriage cannot be tried like any
other question of fact which is independent of presumption, for the law
will presume in favour of marriage.
2. There is a strong legal presumption in favour of [formal validity] of
marriage, particularly after the lapse of a great length of time, and this
presumption must be met by strong, distinct, and satisfactory
disproof.
3. Where, therefore, two persons had shown a distinct intention to marry,
and a marriage had been, in form, ce lebrated between them, by a
regularly ordained clergyman, in a private house, as if by special
license, and the parties, by their acts at the time, showed that they
believed such marriage to be a real and valid marriage, the rule of
presumption was applied in favour of its validity, though no license
could be found, nor any entry of the granting of it, or of the marriage
itself, could be discovered; and though the Bishop of the diocese
(during whose episcopacy the matter occurred),when examined many
years afterwards on the subject, deposed to his belief that he had
never granted any license for such marriage.

 See also

Maherdervan vs. Maherdavan [1964] P 233

The parties celebrated a marriage in Ceylon. Two of the requirements of the local law
(lex loci celebrationis) were solemnization of the marriage by a registrar in his office
or other authorized place and, during the ceremony, an address by the registrar to
the parties as to the nature of the union.

The parties cohabited as if man and wife for a short period of time and the husband
acknowledged the wife as such. Seven years after the first ceremony, the husband
went through a second ceremony of marriage with another woman in England and
the validity of the first marriage came into question.

According to the marriage certificate, the marriage had been solemnized by the
registrar in his office, but the wife testified that the marriage had taken place at her
parents’ house and there was no evidence of the requisite address by the registrar to
the parties.

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Counsel for the husband argued that there was no presumption of formal validity of a
foreign marriage the establishment of which would invalidate a subsequent English
one.
It was held: The presumption of formal validity applied to the first (foreign)
marriage. The argument by counsel for the husband was no more than mere legal
chauvinism. A formally valid marriage ( i.e. one that complies with formalities
required by lex loci celebrationis) may be invalidated by factors like lack of capacity
or being within the prohibited degrees of consanguinity.

ii) The Presumption of Essential Validity

 The presumption of essential validity of marriage holds that on the proof or

admission of the basic fact that a formally valid marriage was celebrated; the
essential validity of the marriage will be presumed in the absence of sufficient
evidence to the contrary.
 Essential validity captures aspects of a marriage such as capacity. A marriage
may be declared void if the parties had no capacity to marry at the time of
marriage.
 A party may lack capacity to marry if already married, if the parties are within
the limited degrees of consanguinity and affinity or if they are below the legal
age of the marriage. If it is proved that a marriage is formally valid, it will
then be presumed subsequently that it is essentially valid in the absence of
any evidence to the contrary.
 See

R vs. Shaw [1943] Times Law Report 344

There was proof of celebration of a prior marriage and the accused did not give
evidence to rebut this evidence. The man, though he denied it, did not bring
evidence to rebut his alleged bigamy. It was held that there was a presumption of
validity of the first marriage which had not been rebutted. The court refused to grant
leave to call evidence to show that the accuse d was already married at the date of
celebration.

iii) Presumption of a Marriage arising from Cohabitation

 The presumption of marriage arising from cohabitation holds that on the proof
of the basic fact that a man and a woman have cohabited as if man and wife,
it is presumed, in the absence of sufficient evidence to the contrary, that they
were living together in consequence of a valid marriage rather than in a state
of concubinage.
 It must be noted that the validity of a marriage does not depend on the
conduction of the ceremony but on consummation of marriage after the
ceremony. If the marriage is not consummated after the ceremony technically
there is no marriage.
 See

Aronegary v Sembecutty [1881] 6 A.C. 364

The plaintiffs sued the defendants to recov er a portion of the property of a certain
[Link], who had since died. The 2nd Plaintiff had voluntarily gone through
some form of a marriage ceremony with the deceased with the intention to get

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married, and proceeded to cohabit with him as man and w ife. The 2nd Plaintiff and
the deceased had had a child, who had also died.

The plaintiffs contended that the disputed property had devolved from the deceased
to the 2nd Plaintiff in her capacity as his widow.

The Supreme Court of Ceylon held that the 2 nd Plaintiff was not married to the
deceased because she had not proved [by evidence] that certain necessary rites of
the Tamils had not been performed (following a row involving the deceased and one
of his male relatives who also wanted to marry her).

The Plaintiffs appealed to the Privy Council (of the House of Lords).It was held:

1. According to the law of Ceylon, as in England, where a man and a

woman are proved to have lived together as man and wife, the law will
presume, until the contrary is proved, th at they were living together in
consequence of a valid marriage and not in a state of concubinage;
and
2. Where it is proved that a man and a woman have gone through a form
of marriage, and thereby shown an intention to be married, they are
not bound to prove that all the necessary ceremonies have been
performed.
 See Also

Hottensiah Wanjiku Yawe vs. Public Trustee [CA 13 of 76]

Yawe a man from Uganda resident of Nairobi was killed in a road accident in Uganda
in [Link] was a pilot with the then East Africa n Airways and lived in Nairobi West.
After his death the appellant, Wanjiku Yawe, claimed to be his widow and claimed
that they had 4 children together. The Ugandan relatives of the deceased claimed
that she was not his wife and that the deceased was not m arried. Evidence was
called which showed that the deceased lived with the appellant as a wife and had
cohabited as husband and wife for 9 years. The Court held that long cohabitation as
husband and wife gives rise to presumption of marriage and only cogent evidence to
the contrary could rebut such a presumption.

 Evidence of cohabitation must be led and this means doing things which
ordinarily can only be done by husband and wife e.g living under one roof,
having children together, buying property together and holding themselves
out as man and wife.
 NB: case law indicates that evidence in rebuttal of any of the three
presumptions of marriage must meet a high standard of proof; it must be
“clear and firm” or “of the most cogent kind” .(Adrian Keane)

c. PRESUMPTION OF NEGLIGENCE (RES IPSA LOQUITOR)

 Negligence will be presumed if the circumstance of a case show that in the

ordinary course of the event, it does not happen if those in charge exercise
proper care and due diligence.
 The presumption is also known as the doctrine of res ispa loquitor which is
the latin terminology for this presumption of negligence meaning that the
thing speaks for itself.

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  The presumption is invoked where the plaintiff suffers damage in
consequence of one or more things which were u nder the exclusive control of
the defendant or his servant.
 This doctrine provides that in some circumstances the mere fact of an
accident’s occurrence raises an inference of negligence so as to establish a
prima facie case.
 When this doctrine is pleaded t he conditions precedent to the applicability of
the doctrine must be proved. Once this is done all the other facts need not be
proved.
 In practical terms the doctrine of res ipsa loquitor shifts the evidentiary
burden of proof to the party against whom it applies so that if this evidentiary
burden is not discharged then the doctrine stands and negligence is presumed
against the party. To put it otherwise would place a very heavy burden on a
plaintiff who may quite know the exact cause of the accident.
 On the prove or admission of the basic facts that
i) Some thing was under the management of the defendant or his
servants; and
ii) An accident occurred, being an accident which in the ordinary course
of things does not happen if those who have the management use
proper care; it may or must be presumed, in the absence of evidence
to the contrary, that the accident was caused by the negligence of the
defendant.

 NB: The maxim res ipsa loquitur only applies where the cause of the accident
is unknown but the inference of negligence is clear from the nature of the
accident; it does not apply where the cause of the negligence is known, and
will be displaced where the cause of the accident has been explained.
 Under the doctrine res ipsa loquitur, therefore, a plaintiff esta blishes a prima
facie case of negligence where-
i) It is not possible for him to prove precisely what was the relevant act
or omission which set in motion the events leading to the accident;
and
ii) On the evidence as it stands at the relevant time, it is more likely than
not that the effective cause of the accident was some act or omission
of the defendant or of someone for whom the defendant is responsible,
which act or omission constitutes a failure to take proper care for the
plaintiff's safety.

2. IRREBUTABLE PRESUMPTION OF LAW

 These are also known as conclusive presumptions (See Section 4 (3) of KEA.

4. (1) Whenever it is provided by law that the court may presume a fact, it may either regard such fact
as proved, unless and until it is disproved, or may c all for proof of it.
(2) Whenever it is directed by law that the court shall presume a fact, it shall regard such fact as
proved, unless and until it is disproved.
(3) When one fact is declared by law to be conclusive proof of another, the court shall, o n proof of
the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of
disproving it.

 These presumptions must be drawn on proof of a basic fact showing the

occurrence or existence of the presumed fact.

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  Once you establish the basic fact pertaining to the presumption then you have
to draw the inference that will give credence to the presumption and they will
usually be drawn from statutory provisions.
 They are public policy pronouncements which decree that in the i nterest of
the public certain matters be dealt with in a certain way. For example

1. The presumption that a person under the age of eight is not criminally
liable for any act or omission (s. 14 (1) of the Penal Code); and
2. The presumption that a male person under the age of 12 is incapable
of having carnal knowledge (s. 14 (3) of the Penal Code)
 Facts which are covered under irrebutable presumption of law need not be
proved in evidence.
 Here once the basic fact is proved the presumed fact is deemed to have be en
proved.
 A conclusion that the presumed fact exists must be drawn and all rebutting
evidence is deemed inadmissible.

a) PRESUMPTION OF LEGITIMACY
 At common law the presumption of legitimacy was regarded as a rebuttable
presumption that states that a child born within the subsistence of a marriage
is deemed to be the child of the husband.
 The KEA has since upgraded it to the status of an irrebutable presumption
See Section 118
Conclusive proof of legitimacy.

118. The fact that any person was born during th e continuance of a valid marriage between his mother and
any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall
be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the
marriage had no access to each other at any time when he could have been begotten.

 On the proof or admission of the basic fact that a child was born or conceived
during lawful wedlock, it is presumed, in the absence of sufficient evid ence to
the contrary, that the child is legitimate.
 The presumption may be rebutted by evidence showing (inter alia) that—
i) the husband and the wife did not have sexual intercourse as a result of
which the child was born;
ii) the husband was impotent;
iii) Use of reliable contraceptives;
iv) Blood tests (see B. (B. R.) v. B. (J.) & Another [1968] 2 All ER 1023
CA)
v) Genetic fingerprint tests;
vi) The wife has cohabited with another man for an appropriate period of
time before the birth of the child (see Cope v Cope)

 NB: Evidence of adultery by the wife will not rebut the presumption of
legitimacy unless it is proved that at time of conception sexual intercourse
between the husband and the wife did not take place.

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CASE LAW

Gordon vs. Gordon & Another [1903] AC 141

The husband brought divorce proceedings against the wife on the grounds of
adultery. Divorce was granted and the custody of the children was given to the
husband. Prior to the grant of the decree absolute, the wife applied for variation on
the grounds that the c hild of the marriage was not the natural child of the father but
a son of the co-respondent. It was held that once marital intercourse is proved, a
child born in valid wedlock would not be declared illegitimate even if the mother
“were shown to have committed adultery with any number of men ”.

Bowen v Norman [1938] 1 K.B. 689 DC

A married woman (the respondent), obtained against her husband a maintenance

order on the ground of desertion on 17th October [Link] maintenance order did
not contain a provisio n that she was no longer bound to cohabit with the husband.

On 20th June 1937, about 20 months after the maintenance order, the woman gave
birth to a child, her husband being then still alive.

Held:Proof of the maintenance order was not sufficient to reb ut the legal
presumption of access of the husband and of the legitimacy of the child born during
the respondent's marriage.

Ettenfield v Ettenfield [1940] P 96 CA

It was held that-

1. The rule that evidence cannot be given by either spouse tending to

bastardize or legitimatize a child conceived and born during wedlock is
absolute;
2. The rule applies not only when the parties are living together, but also
when they are separated either by a decree of a Court of competent
jurisdiction or by their own volition;
3. Where the only evidence of adultery in support of a husband's petition
for divorce is the birth of a child to the wife, if the parties have been
separated by the decree or order of a competent Court, the husband
need prove no more than the date of the decree or order and the date
of the birth of the child. If it must have been conceived after the date
of the decree or order, there is a presumptio juris that it is a bastard.
The wife may rebut this presumption, if she can, but she must do it by
evidence other than her own.
4. Where the only evidence is the birth of a child to the wife and the
parties have voluntarily separated, whether by deed, writing under
hand, oral agreement, or agreement implied from conduct, the
husband cannot give evidence of non-access, but can prove that fact
by any means open to him other than his own evidence. The
presumption is that the child is legitimate. If the husband leads
evidence to rebut that presumption, the wife can call, but cannot
herself give, evidence in support of the child's legitimacy.

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3. PRESUMPTIONS OF FACTS

 Where a presumption of fact applies, on the proof of a basic fact, another fact
may be presumed in the absence of sufficient evidence to the contrary.
 Presumptions of fact are discretionary; the court is not obliged to accept the
presumed fact as established even where the basic fact is established.
 According to Adrian Kean, therefore, presumptions of fact are no more than
examples of circumstantial evidence (see Adrian Kean, Modern Law of
Evidence, 4th Edition at p. 584).
 Examples of presumptions of fact include:
1. The presumption of intention (a man intends the natural consequences
of his acts and omissions);
2. The presumption of guilty knowledge (if a person found in possession
of goods which have been recently s tolen does not offer an
explanation, the court is entitled, but not compelled, to infer guilty
knowledge or belief and to find him guilty of handling stolen goods).
3. The presumption of the continuance of life (where a person is proved
to have been alive on a certain date, an inference may be drawn, in
the absence of sufficient evidence to the contrary, that he was alive on
a subsequent date).
4. The presumption of seaworthiness (where a ship sinks or is unable to
continue her voyage shortly after putting to sea, an inference may be
drawn, in the absence of sufficient evidence to the contrary, that she
was unseaworthy on leaving port.
 NB: Some presumptions are not dependent on the prove of any basic fact
before they can be drawn. Examples include:
1. The presumption of innocence in criminal cases;
2. The presumption of sanity (see s. 11 of the Penal Code); and
3. The presumption that mechanical instruments of a kind that are
usually in working order were in working order at the time when they
were used.

SELECTED STATUTOR Y PROVISIONS OF PRESUMPTION IN THE KEA

1. Section 4 of the KEA gives the general rules of presumption

Presumptions of fact
4. (1) Whenever it is provided by law that the court may presume a fact, it may either regard such fact as
proved, unless and until it is disproved, or may call for proof of it.
(2) Whenever it is directed by law that the court shall presume a fact, it shall regard such fact as proved,
unless and until it is disproved.
(3) When one fact is declared by law to be conclusive proof of another, the court shall, on proof of the one
fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.

2. Section 77 (2)

Reports by Government analysts and geologists .

77 (2) The court may presume that the signature to any such document is genuine and that the person
signing it held the office and qualifications which he professed to hold at the time when he signed it.

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3. Section 92

Certified copies of foreign judicial records .

92. The court may presume that any document purporting to be a copy of a judgment or judicial record of
any country not forming part of the Commonwealth is genuine and accurate, and that such judgment or
record was pronounced or recorded by a court of competent jurisdict ion, if the document purports to be
certified in any manner which is certified by a Kenya consular officer or diplomatic representative in or for
such country to be the manner commonly in use in that country for the certification of copies of judgments
or judicial records.

4. Section 93

Books, maps and charts.

93. The court may presume that any book, to which it may refer for information on matters of public or
general interest, and that any published map or chart, the statements of which are admissib le facts and
which is produced for its inspection, was written and published by the person and at the time and place by
whom or at which it purports to have been written or published.

5. Section 94

Telegraphic messages.

94. The court may presume that a message forwarded from a telegraph office to the person to whom such
message purports to be addressed, corresponds with a message delivered for transmission at the office from
which the message purports to be sent; but the court shall not make any presu mption as to the person by
whom such message was delivered for transmission.

6. Section 95

Presumption as to due execution, etc.

95. The court shall presume that every document called for and not produced after notice to produce was
attested, stamped and executed in the manner required by the law.

7. Section 119

Presumption of likely facts.

119. The court may presume the existence of any fact which it thinks likely to have happened, regard being
had to the common course of natural events, human co nduct and public and private business, in their
relation to the facts of the particular case.

 In

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Kanji v Kanji [1961] EA 411 CA

An employee lost his hand to a sisal decorticator in April 1960. An inspection

conducted in September 1960 revealed the re was no barrier/fence between the
machine and employees.

It was held: it was unlikely that there was a barrier in April which had disappeared
by September but the factory owners were at liberty to bring evidence to prove that
there had been a barrier.

8. Section 118

Conclusive proof of legitimacy.

118. The fact that any person was born during the continuance of a valid marriage between his mother and
any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall
be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the
marriage had no access to each other at any time when he could have been begotten.

 NB: though styled as “conclusive,” this presumption is subject to any

evidence that the parties to the marriage had no access to each other at any
time when the person whose paternity is in issue could have been begotten.

9. Section 118 A

Presumption of death.

118A. Where it is proved that a person has n ot been heard of for seven years by those who might be
expected to have heard of him if he were alive, there shall be a rebuttable presumption that he is dead.

EFFECTS OF PRESUMPTION ON THE BURDEN OF PROOF

1. Presumptions shifts the burden of proof so tha t the person in whose

favour the presumption is made has nothing to prove and the person
against whom it operates has the burden to adduce evidence in
rebuttal.(This applies especially so when the presumption is rebuttable
so that the effect thereof is to discharge burden of proof with respect
to the presumed fact)
2. With regard to irrebutable presumptions once the basic facts give rise
to the presumption have been proved the irrebutable presumption sets
and no evidence can be called to rebut the same.
3. Presumptions also have the effect of reducing the time it would take
proving certain matters; certain matters are known to everyone and it
would be a waste of time to discuss that in court

3. ADMISSIONS

 An admission is a statement oral or written which suggest s an inference to a

fact in issue or a relevant fact made by one of the parties in a proceeding.
 An admission, verbal or written made by a party in the course of the
proceedings in the same case, does not require proof.

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  The admissions may be contradicted o nly by a showing that it was made
through palpable mistake or under duress or that no such admissions was
made.
 Admissions are classified into two categories

a. Formal Admissions

 Formal admissions are made in the context of specific proceedings and the
effect of formal admissions is that they dispense with proof with regard to the
matters admitted.
 They will be made in answer to a notice to admit and they could also be made
by Affidavit.
 A fact may be formally admitted in the following ways
i) Express admissions on the pleadings
ii) By default of pleading
iii) By failure to traverse it in a pleading
iv) By letter written by a legal advisor prior to trial
v) In answer to a notice to admit under Order 12 of the Civil Procedure
Rules
vi) By affidavit in answer to admit to an interroga tory.

b. Informal Admissions

 Informal admissions are those admissions that are made before any
proceedings are anticipated.
 See Section 17-24

Part II - Admissions

Admissions defined generally.

17. An admission is a statement, oral or documentary, which suggests any inference as to a fact in issue or
relevant fact, and which is made by any of the persons and in the circumstances hereinafter mentioned.

Statements by party to suit or agent or interested person.

18. (1) Statements made by a party to the proceeding, or by an agent to any such party, whom the court
regards in the circumstances of the case as expressly or impliedly authorized by him to make them, are
admissions.
(2) Statements made by parties to suits, suing or sued in a representative char acter, are not admissions
unless they were made while the party making them held that character.
(3) Statements made by -
(a) persons who have any proprietary or pecuniary interest in the subject -matter of the proceeding, and
who make the statement in the character of persons so interested; or
(b) persons from whom the parties to a suit have derived their interest in the subject -matter of the suit, are
admissions if they are made during the continuance of interest of the persons making the statements.

Statements by persons whose position or liability must be proved as against party to suit.

19. Statements made by persons whose position or liability it is necessary to prove as against any party to a
suit, are admissions if such statements would be admi ssible as against such persons in relation to such
position or liability in a suit brought by or against them, and if they are made whilst the person making
them occupies such position or is subject to such liability.

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Statements by persons expressly refe rred to by party to suit.

20. Statements made by persons to whom a party to the suit has expressly referred for information in
reference to a matter in dispute are admissions.

Proof of admissions against persons making them, and by or on their behalf.

21. Subject to this Act, an admission may be proved as against the person who makes it or his
representative in interest; but an admission cannot be proved by or on behalf of the person who makes it or
by his representative in interest, except in the fol lowing cases -
(a) when it is of such a nature that, if the person making it were dead, it would be admissible as
between third persons under section 33;
(b) when it consists of a statement of the existence of any state of mind or body, relevant or in iss ue,
made at or about the time when such state of mind or body existed, and is accompanied by conduct
rendering its falsehood improbable;
(c) if it is relevant otherwise than as an admission.

Oral admissions as to contents of documents.

22. Oral admissions as to the contents of a document may not be proved unless and until the party
proposing to prove them shows that he is entitled to give secondary evidence of the contents of such
document under this Act or unless the genuineness of a document produced is in question.

Admissions made without prejudice in civil cases.

23. (1) In civil cases no admission may be proved if it is made either upon an express condition that
evidence of it is not to be given or in circumstances from which the court can infer that the parties agreed
together that evidence of it should not be given.
(2) Nothing in subsection (1) shall be taken to exempt any advocate from giving evidence of any matter of
which he may be compelled to give evidence under section 134.

Effect of admissions.

24. Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels
under the provisions hereinafter

 The distinction between the two sets of admission is that formal admission
are made with respect to procee dings while informal admission are made
with respect to anticipated proceedings and are thus not conclusive.
 See Section 61

Facts admitted in civil proceedings.

61. No fact need be proved in any civil proceeding which the parties thereto or their agents agree to admit
at the hearing, or which before the hearing they agree, by writing under their hands, to admit, or which by
any rule of pleading in force at the time they are deemed to have admitted by their pleadings:

Provided that the court may in its d iscretion require the facts admitted to be proved otherwise than by such
admissions.

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  The main principle is that once you admit certain facts you will not be
required to prove those facts but the court may by discretion require those
facts to be proved.

ADMISSIONS GENERALLY

1. Admissions save the adverse party the trouble and expense of proving
the admitted facts;
2. A formal admission is conclusive and binding upon the person making
it. Put differently, a fact which is formally admitted ceases to be in
issue (Adrian Kean, p. 611);
3. An informal admission is not conclusive and binding on the person
making it, as such a person may adduce evidence at the trial with a
view to explaining it away.
4. A party who fails formally to admit facts about which there is no rea l
dispute may be ordered to pay the costs incurred by his adversary in
proving them. A lawyer, therefore, owes a duty to his client to
consider if any formal admissions can properly be made.
5. In criminal law, admissions fall under what are known as confessi ons,
governed by sections 25-32 of the Evidence Act.
6. Since admissions may be used against a party, it is common practice
for parties and advocates, especially with a view to resolving a dispute
amicably, to engage in “without prejudice” negotiations.
7. Under section 23 of the Evidence Act, admissions made on a “ without
prejudice” basis cannot subsequently be proved in court against the
party making them.

ADMISSIONS IN CIVIL PROCEEDINGS

1. The general rule on admissions with regard to civil proceedings is set

out in section 61 of the Evidence Act, which states—– “No fact need be
proved in any civil proceeding which the parties thereto or their agents
agree to admit at the hearing, or which before the hearing they agree,
by writing under their hands, to admit, or which by any rule of
pleading in force at the time they are deemed to have admitted by
their pleadings:– Provided that the court may in its discretion require
the facts admitted to be proved otherwise than by such admissions.”
2. As is evident from the foreg oing, a party to a civil proceeding may by
his pleading admit the whole or part of his adversary’s case ( as stated,
it should be noted that unnecessary denial of an incontestable fact
might lead one to pay his adversary's costs in proving the fact ).
3. Under the Civil Procedure Rules, any allegation of fact by the adverse
side that is not specifically traversed is deemed to be admitted.
4. Order 2 Rule 11 of the Civil Procedure Rules 2010 provides:

[Order 2, rule 11.] Admissions and denials.

11. (1) Subject to sub-rule (4), any allegation of fact made by a party in his pleading shall be deemed to be
admitted by the opposing party unless it is traversed by that party in his pleading or a joinder of issue under
rule 10 operates as a denial of it.
(2) A traverse may be made either by denial or by a statement of non -admission and either expressly or by
necessary implication.
(3) Subject to sub-rule (4), every allegation of fact made in a plaint or counterclaim which the party on
whom it is served does not intend to ad mit shall be specifically traversed by him in his defence or defence

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to counterclaim; and a general denial of such allegations, or a general statement of non -admission of them,
shall not be a sufficient traverse of them.
(4) Any allegation that a party has suffered damage and any allegation as to the amount of damages shall be
deemed to have been traversed unless specifically admitted.

5. Order 13 of the Civil Procedure Rules, 2010 (titled “Admissions”)

provides as follows:

ORDER 13
ADMISSIONS
[Order 13, rule 1.] Notice of admission of case.
1. Any party to a suit may give notice by his pleading, or otherwise in writing, that he admits the truth of
the whole or part of the case of any other party.

(Order 13, rule 2.] Judgment on

2. Any party may at any sta ge of a suit, where admission of facts has been made, either on the pleadings or
otherwise, apply to the court admissions for such judgment or order as upon such admissions he may be
entitled to, without waiting for the determination of any other question between the parties; and the court
may upon such application make such order, or give such judgment, as the court may think just.

ADMISSIONS CRIMINAL PROCEEDINGS

 As stated, admissions in criminal cases are normally referred to as

“confessions.” The relevant rules are to be found at sections 25 -32 of the
Evidence Act.
 Section 25 of the Evidence Act defines a “confession” in the following terms: –
“A confession comprises words or conduct, or a combination of words and
conduct, from which, whether taken al one or in conjunction with other facts
proved, an inference may reasonably be drawn that the person making it has
committed an offence .”
 Until 2003, confessions made to police officers by suspects while in custody
were generally admissible against the accused person.
 By 2003, however, concerns had escalated on confessions obtained by law
enforcement officers through torture or other inhuman treatment or unfair
means (in spite of the provisions of section 26 of the Evidence Act).
 This necessitated changes in the law (Statute Law (Miscellaneous
Amendments Acts Nos. 5 of 2003 and 7 of 2009).
 The result of the changes was the insertion/enactment of a new section 25A
into the Evidence Act, which states as follows: “25A. (1) A confession or any
admission of a fact tending to the proof of guilt made by an accused person is
not admissible and shall not be proved as against such person unless it is
made in court before a judge, a magistrate or before a police officer (other
than the investigating officer), being an of ficer not below the rank of Chief
Inspector of Police, and a third party of the person’s choice.(2) The Attorney
General shall in consultation with the Law Society of Kenya, Kenya National
Commission on Human Rights and other suitable bodies make rules governing
the making of a confession in all instances where the confession is not made
in court.”
 Under section 26 of the Evidence, confessions induced by inducements,
threats or promises are inadmissible.

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  Section 27 provides, however, that here a confession is made after the
impression caused by the inducement, threat or promise has, in the opinion of
the court, been fully removed, it is admissible.

4. ESTOPPEL

 Estoppel is a legal principle that prevents a party from denying or alleging a

certain fact owing to that party’s earlier allegation, conduct, or denial.
 Estoppel in principle simply means that what a person has stated earlier
he/she should not be allowed to deny them later.i.e Therefore a party to
litigation is stopped from asserting or denying a fac t they previously
acknowledged.
 In common parlance, the word “estoppel” means “stopped.”
 The rationale underlying the doctrine of estoppel is that what a man has once
alleged/represented, by his words or conduct, he should not subsequently be
allowed to contradict.
 Effectively, therefore, estoppel operates to prevent a party to litigation from
asserting or denying certain facts.

GENERAL RULES OF ESTOPPEL

1. Estoppel is only a rule of evidence you cannot found an action upon

estoppel.

 See

Low vs. Bouverie [1891] 3 ch 82

The plaintiff lent money to a borrower on the security of the borrower’s beneficial life
interest in certain property. The plaintiff’s solicitor’s wrote to the defendant who was
one of the trustees of the property, to inquire whether the borrower had mortgaged
or parted with his life interest in the property. In his reply the defendant disclosed
the existence of two encumbrances on the property but failed to disclose the
existence of several others which he had received notice but forgotte n. On the faith
of that assurance the plaintiff entered into the proposed transaction. The borrower
was subsequently declared bankrupt and as a result of the prior mortgages, the
plaintiff’s security was worthless. The plaintiff’s security being insufficie nt he sued
the defendant for the declaration that he was liable for the amount due on the
security alleging that the advance to the borrower was made upon the faith of the
defendant’s written representations. The court held that the defendant was not liabl e
either on the grounds of fraud, breach of duty, warranty or estoppel and that for an
estoppel to operate it must be clear and unambiguous. It was further held where no
fraud is alleged the representee must show “that the statement was of such a nature
that it would have misled any reasonable man”. In this case the representee failed to
discharge that onus since ‘only fair meaning’ which could be attributed to the
representors’ statements was that the encumbrances disclosed were all the
representor was awa re of at the time of writing.

2. Facts covered by estoppel need not be proved

 It is a rule of law whereby a party to proceedings is precluded by some

previous act, words or conduct to which he was party or privy from asserting
or denying a fact. See Sect ion 120 of KEA

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General estoppel.

120. When one person has, by his declaration, act or omission, intentionally caused or permitted another
person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be
allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth
of that thing.

 Estoppel is a rule of exclusion making evidence of a relevant fact admissible.

3. An estoppel must be pleaded to be taken advantage of.

 See Order 2 Rule 4 of the Civil Procedure Rules 2010.

[Order 2, rule 4.] Matters which must be specifically pleaded.

4. (1) A party shall in any pleading subsequent to a plaint plead specifically any matter, for example
performance, release, payment, fra ud, inevitable accident, act of God, any relevant Statute of limitation or
any fact showing illegality —
(a) which he alleges makes any claim or defence of the opposite party not maintainable;
(b) which, if not specifically pleaded, might take the opposite party by surprise; or
(c) which raises issues of fact not arising out of the preceding pleading.

(2) Without prejudice to sub -rule (1), a defendant to an action for the recovery of land shall plead
specifically every ground of defence on which he relies, and a plea that he is in possession of the land by
himself or his tenant shall not be sufficient.

(3) In this rule “land” includes land covered with water, all things growing on land, and buildings and other
things permanently affixed to land.

4. For estoppel to apply the party who purposes to rely on it must raise it in
proceedings.

 If the person fails to raise estoppel in the pleadings it can amount to waiver of
the estoppel.
 See

Crabb vs. Arun District Council [1976] 1 Ch 179

The plaintiff owned a piece of land which had access at point A on to a road owned
by the [Link] the plaintiff also had a right of way from that point A along
this road. To enable him to sell his land in two parts, the plaintiff sought from the
defendant a second acc ess point and he also wanted a further right of way from
point [Link] a site meeting held between the plaintiff, his architect and a
representative of the defendant the additional access point B was agreed to.
Subsequently the defendants fenced the boundary between their road and the
plaintiff’s land erecting gates at B and A. After the plaintiff sold part of the land
together with the right of access at A and also going with the right of way onto the
road, the defendants removed the gate at B and fenced it off. Essentially that
blocked the access to the said road thereby rendering his property uneconomical.

The plaintiff sued for a declaration and injunction claiming that the defendants were
estopped by their conduct from denying him a right of access at B and a right of way

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along the road. The trial court held that in the absence of a definite assurance by the
defendant no question of estoppel could arise. Consequently the plaintiff’s action was
dismissed. On appeal it was held that defendant knowing the pl aintiff’s intention to
sell his land in separate portions by their representation led the plaintiff’s to believe
that he had been granted a right of access at point B and by erecting the gates and
failing to disabuse him of his belief encouraged the plaint iff to act to his detriment in
selling part of his land without reservation over it of any right of way thereby giving
rise to an equity in his favour.

The Court also held that equity should be satisfied by granting the plaintiff a right of
access at point B and a right of way along the road. In view of the sterilization of the
plaintiffs land for a considerable period resulting from the defendant act, the right
was granted without any payment by the plaintiff.

5. All estoppel operate subject to the gener al rule that they cannot be set up
to contravene a statute

 An estoppel if illegal by virtue of being contrary to a statute or common law

will not be enforceable e.g. where a statute requires a particular formality, no
estoppel will cure that defect.
 Likewise where a statute denies a court jurisdiction it cannot be given to it by
an estoppel.
 Debate abounds, and authorities differ, however, on whether estoppel is a
rule of evidence or a rule of substantive law.
 Judges who holds the view that estoppel is a r ule of evidence will not permit
an estoppel to be pleaded to defeat the express provisions of a statute.
 In

Maritime Electric Co. Ltd v General Diaries Ltd [1937] A.C. 610

The respondents, who carried on a dairy business in Fredericton, bought from the
appellant’s electric energy which they used in the manufacture of butter, ice -cream
and other milk products.

To arrive at the correct amount of electric energy supplied it was necessary to

multiply the meter dial reading by ten, but owing to a mistake on the part of the
appellants that was not done over a period of twenty -eight months, with the result
that during that time the respondents were charged with only one tenth of the
electric energy supplied to them.

When sued for the nine tenths of the consump tion, the respondent claimed that the
power company was estopped from making the claim.

It was held:
1. An estoppel is only a rule of evidence, and could not avail to release
the appellants from an obligation to obey the statute, nor could it
enable the respondents to escape from the statutory obligation to pay
at the scheduled rates. The duty of each party was to obey the law.
2. The appellants were not estopped from recovering the sum claimed.
The duty imposed by the Public Utilities Act on the appellants to
charge, and on the respondents to pay, at scheduled rates, for all the
electric current supplied by the one and used by the other could not be

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 defeated or avoided by a mere mistake in the computation of
accounts.
3. The relevant sections of the Act were enacte d for the benefit of a
section of the public, and in such a case where the statute imposed a
duty of a positive kind it was not open to the respondents to set up an
estoppel to prevent it.

 In

Mills v Cooper [1967] 2 Q.B. 459

Criminal proceedings were p referred against the defendant that he, being a gipsy did
without lawful excuse or authority encamp on a highway contrary to section 127 of
the Highways Act, 1959. The proceedings were dismissed on a submission of no case
to answer on the grounds that the court was not satisfied that he was a gipsy.

Ten weeks later, subsequent criminal proceedings were preferred against the
defendant alleging that he was a gipsy on March 13, 1966.
The defendant contended that, since the issue of whether he was a gipsy had been
decided in his favour in the first proceedings, there was an issue estoppel debarring
the justices from reopening that question and that the later proceedings were
oppressive and an abuse of the process of the court.

It was held: Issue estoppel is a particular application of the general rule of public
policy that there should be finality in litigation; that general rule applies also to
criminal proceedings, but in the form of the rule against double jeopardy .

GENERAL PRINCIPLES OF ESTOPPEL

 The following are the principles that guide the doctrine of estoppels:
2. Estoppel has to be mutual or reciprocal and consequently has to bind
both parties; a stranger can neither take advantage of nor be bound
by Estoppel.
3. Estoppel cannot be used to circumvent the la w so you couldn’t invoke
estoppel to render an invalid act valid or vice versa,
4. Estoppels must be certain and that is to say that the statement which
forms the basis of an estoppel should be precise, clear and
unambiguous. It should be incapable of being r ead in more than one
way. It should lead a person to just one conclusion.
5. It is immaterial whether the make -up of the statement or the
representor believes it to be true or false.i.e if you make a reckless
statement which leads people to do certain acts to their detriment ypu
will be estopped.
6. The representation which is the basis of an estoppel must be a
statement or representation of fact which existed in the past or is
existing at the time of the making of the statement or representation.
It should not be a promise in the future.

STATUTORY PROVISIONS OF ESTOPPEL

 The rules on estoppel are to be found at sections 120-123 of the Evidence

Act.
1 Section 120

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General estoppel.

120. When one person has, by his declaration, act or omission, intentionally caus ed or permitted
another person to believe a thing to be true and to act upon such belief, neither he nor his representative
shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny
the truth of that thing.

 As with most other rules in the Act, section 120 of the Evidence Act has its
origins in the English common law.
 The rationale for the rule is that it is unfair to allow a person who has induced
another to believe in the truth of a thing, and to act on t he belief, to deny the
truth of that thing.

2. Section 121

 Section 121 of the Evidence Act estops tenants and licensees from denying
the title or possession of the landlord and licensor respectively:

Estoppel of tenant or licensee.

121. No tenant of immovable property, or person claiming through such tenant, shall, during the
continuance of the tenancy, be permitted to deny that the landlord of such tenant had at the beginning of the
tenancy a title to such immovable property; and no person who came upon any immovable property by the
license of the person in possession thereof shall be permitted to deny that such person had a right to such
possession at the time when the license was given.

3. Section 122

 Section 122 estops persons who have accepted a bill of exchange from
denying the authority of the drawer to draw the bill:

Estoppel of acceptor of a bill of exchange.

122. No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority to draw such
bill or to endorse it:

Provided that the acceptor of a bill of exchange may deny that the bill was in fact drawn or endorsed by the
person by whom it purports to have been drawn or endorsed.

4. Section 123

 Section 123 of the Evidence Act bars agents, bailees and licensees from
denying the right of the principal,bailor and licensor respectively:

Estoppel of a bailee, licensee or agent.

123. No bailee, agent or licensee shall be permitted to deny that the bailor, principal or licensor, by whom
any goods were entrusted to any of them respectively, was entitled to those goods at the time when they
were so entrusted:

Provided that any such bailee, agent or licensee may show that he was compelled to deliver up any such

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goods to some person, who had a right to them as against his ba ilor, principal or licensor, or that his bailor,
principal or licensor, wrongfully, and without notice to the bailee, agent or licensee, obtained the goods
from a third person who has claimed them from such bailee, agent or licensee.

TYPES OF ESTOPPEL

 There are three main types of estoppel, namely —

1. Estoppel by record;
2. Estoppel by deed; and
3. Estoppel by conduct

1. ESTOPPEL BY RECORD

 This refers to estoppel arising from a judgment entered by a court of

competent jurisdiction.
 Once such a judgment has b een entered and the time for raising an appeal
has elapsed it will be taken that the judgment was rightly made.
 The general rule is that the order of a court of competent jurisdiction is
conclusive proof of the issues decided therein between the parties th ereto and
their privies as to the material issue decided there.
 Estoppel by record, also known as “estoppel by record inter parties” or
“estoppel per rem judicatam ,” arises from court judgments, and is premised
on the following two rationales, namely —

a. The first is that there needs to be finality to litigation i.e the

‘interest rei publicae ut sit finis litium’ principle which
means it is for the common good (public interest) that there
should be an end to litigation.
b. Secondly is that ni one should be haras sed for the same cause
twice i.e ‘ nemo debet bis vexari pro aedem causa’ which
means no one should be sued twice on the same grounds.

 Under the doctrine of estoppel by record, a final judgment of a court of

competent jurisdiction is conclusive; such a ju dgment estops a party to
litigation from giving evidence to contradict it.
 NB: A party may avoid the conclusive effect of a judgment by showing that it
was obtained by fraud.
 Accordingly, once an issue of fact is adjudicated upon and finally determined
by a court of competent jurisdiction, the parties and their privies cannot
subsequently re-open the matter.
 For purposes of estoppel by record, there are two types of judgments,
namely-

i) Judgment in Rem

 This refers to an adjudication on the status of a perso n or a thing and

examples of judgments in rem include judgments in the following proceedings
i.e. divorce ,probate,bankruptcy,electoral etc
 All these have implication for the status of persons or things.
 Section 44 (1) of the KEA defines judgment in rem as

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Judgments in rem.

44. (1) A final judgment, order or decree of a competent court which confers upon or takes away from any
person any legal character, or which declares any person to be entitled to any such character, or to be
entitled to any specific thing, not as against any specified person but absolutely, is admissible when the
existence of any such legal character, or the title of any such person to any such thing, is admissible.

(2) Such judgment, order or decree is conclusive proof -

(a) that any legal character which it confers accrued at the time when such judgment, order or decree
came into operation;

(b) that any legal character to which it declares any such person to be entitled accrued to that person at
the time when such judgment, or der or decree declares it to have accrued to that person;

(c) that any legal character which it takes away from any such person ceased at the time from which
such judgment, order or decree declared that it had ceased or should cease;

(d) that anything to which it declares any person to be so entitled was the property of that person at the
time from which such judgment, order or decree declares that it had been or should be his property.

 See

Allen v Dandas (1789) Term Rep 125

The defendant was inde bted to [Link] P’s death, the X obtained probate of what
appeared to be P’s will. The defendant paid to X the amount he owed P.

The grant of probate to X was subsequently set aside in favour of the plaintiff, on the
ground that X had forged P’s will. The pl aintiff, upon vacating the grant of probate to
X, sought to recover from the defendant the amount he had owed P while he was
alive.

Held: the defendant was not liable to pay the debt over again to the plaintiff, as
everyone was bound to give credit to the probate (a judgment in rem) until it was
vacated, which meant that the plaintiff was estopped from denying X’s executorship
at the material time.

ii) Judgment in Personam

 These are judgments that do not fall within the definition in section 44 i.e do
not affect the status of person or thing e.g. judgments involving contracts or
torts.
 They are conclusive proof as to the matters adjudicated upon and the reasons
for the judgement as between the parties to the proceedings.
 They do not bind the whole world but o nly the parties to the proceedings.

CATEGORIES OF ESTOPPEL BY RECORD

 Both judgments in personam and in rem give rise to two kinds of estoppel,
hence there are two categories of estoppel by record namely

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 i) Cause of Action Estoppel

 Cause of Action estoppe l is based on the notion that a course of action has
been dealt with on a judgment and the parties to the action will be prevented
from asserting or denying as against what was found.
 Therefore if a particular course of action was found to exist or not to exist,the
same parties will not be allowed to revist the same issue.
 Cause of action estoppel itself gives rise to a plea of res judicata meaning
that the matter has been heard and determined by the courts.
 Once a decision has been arrived at it binds the parties and becomes
judicatum in [Link] none of the parties should be able to raise the
issue again.
 So pervasive is the doctrine that there is now a tendency to extend the idea
underlying cause of action estoppel to claims which though not the su bject of
formal adjudication could have been brought forward as part of the cause of
action in the proceedings which resulted in the judgment constituting an
estoppel.
 A litigant is required, therefore, to plead the whole of their claim (i.e. all
causes of action) arising from the same facts in a single suit.
 Failure to plead the whole case in a single suit may lead to a cause of action
or issue estoppel where the plaintiff files a subsequent suit arising from the
same transaction.
 See the statement of Wigr am VC in

Henderson v Henderson (1843) 3 Hare 100 at 114:

“where a matter becomes the subject of litigation in, and of adjudication by a court
of competent jurisdiction, the court requires the parties to that litigation to bring
forward their whole case, and will not permit the same parties to pen the same
subject of litigation in respect of matter which might have been brought forward as
part of the subject in contest, but which was not brought forward, only because they
have, from negligence, inadvertenc e or even accident, omitted part of their case.

The plea of res judicata applies, except in special cases, not only to points upon
which the court was actually required by the parties to form an opinion and
pronounce a judgment, but to every point which p roperly belonged to the subject of
litigation, and which the parties, exercising reasonable diligence, might have brought
forward at the time.”

 In civil cases the rule is captured at Order 3 Rule 4 of Civil Procedure Rules
2010 and Section 7 of Civil Proc edure Act

[Order 3, rule 4.] Suit to include the whole claim

4. (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of
action; but a plaintiff may relinquish any portion of his claim.

(2) Where a plaintiff omits to sue in respect of or relinquishes any portion of his claim, he shall not afterwards sue in
respect of the portion omitted or relinquished.

(3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such
reliefs; but if he omits, except with the leave of the court, to sue for all such reliefs he shall not afterwards sue for any
relief so omitted.

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Res judicata.

7. No court shall try any suit or issue in which the matter directl y and substantially in issue has been
directly and substantially in issue in a former suit between the same parties, or between parties under whom
they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or
the suit in which such issue has been subsequently raised, and has been heard and finally decided by such
court.

Explanation. (1) - The expression “former suit” means a suit which has been decided before the suit
in question whether or not it was inst ituted before it.

 See

 See

Wood v Luscombe [1966] Q.B. 169

There was a collision between two motor cyclists L and W, the latter of whom had a
pillion passenger. All the three persons involved in the collision received injuries.L
sued W in respect of injuries received in the collision.

The court found both parties were equally to blame. The pillion passenger on W's
motor cycle subsequently sued L, who joined W as a third party claiming contribution
against him under the Law Reform (Married Women and T ortfeasors) Act, 1935.

The plaintiff's claim was settled for £4,500. In his third party notice, L claimed that
W was estopped from denying that he was equally to blame with the defendant, the
issue being res judicata.

Held: since the issue to be determin ed in the third party proceedings was the same
as that in the previous suit between L and W., namely, who was to blame for the
accident, and as the same evidence would support both suits, the issue of liability
between L and W was res judicata.– *Remember the point about issue estoppel and
cause of action estoppel? Which of them is embodied in this decision?

 In criminal cases issue estoppel gives rise to the plea of either autrefois
acquit or atrefois convict i.e. when a court has convicted the accused or
acquitted an accused in a particular case.

 With regard to criminal proceedings Section 47A of the KEA amplifies this
position

Proof of guilt.

47A. A final judgment of a competent court in any criminal proceedings which declares any person to be
guilty of a criminal offence shall, after the expiry of the time limited for an appeal against such judgment or
after the date of the decision of any appeal therein, whichever is the latest, be taken as conclusive evidence
that the person so convicted was guilty of that offence as charged.

NB: Section 47A applies for both Civil and Criminal proceedings

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 ii) Issue Estoppel

 This type of estoppel operates with regard to the issues for trial before the
court.
 It arises when a particular fact or issue has been d etermined on merit by
Court.
 Once the issue is determined the chapter is closed and issue of estoppel
applies.
 The essential ingredients for the plea of issue estoppel to succeed are as
follows.
1. There must be a final judgment between the same parties.
2. The parties must be litigating in the same capacity as before.
3. The issue before the Court must be same as that in a previous
proceeding
4. Estoppel must be pleaded.

DISTINCTION BETWEEN CAUSE OF ACTION ESTOPPEL AND ISSUE ESTOPPEL

1. Issue estoppel unlike cause of action estoppel applies only on issues raised and
actually determined in the earlier proceedings and does not extend to issues
which a party by exercising reasonable diligence could have raised but did not.

2. Issue estoppel cannot be raised where a party ha s come into possession of fresh
evidence which brings into question the findings in their earlier proceedings.

3. In Arnold vs. National Westminster Bank Plc [1991] 3 AULR 41 it was held
that a change in the law between the date of the earlier and later proc eedings,
although it cannot prevent a party from raising a cause of action estoppel may
prevent a party from raising an issue estoppel dependent upon the circumstances
of the case and issue determined.

 However in both types of estoppel it is required that the parties must be the
same ones involved in the prior judgment. It does not have to be them in
person but it could also be their agents.
 It is a general rule that the party alleging estoppel must plead the former
suit. Failure to do so will render it me rely an item of evidence in his favour to
be considered by the court.
 In civil cases, a matter which with due diligence could have been raised as a
ground of attack or defence in the former suit but was not actually raised is
deemed to have been “constructively in issue.”
 In criminal cases, cause of action estoppel will ordinarily be pleaded by the
plea of autre fois acquit or autre fois convict.
 A person who relies on the plea of res judicata must establish three things,
namely-The judgment in the earlier court creating an estoppel was
i) of a court of competent jurisdiction;
ii) final and conclusive; and
iii) on the merits;
 The parties (or privies) in the earlier action relied on as creating an estoppel
and those in the later action in which that estoppel is raised as a bar are the
same; and
 The issue in the later action in which the estoppel is raised as a bar is the
same as the issue decided by the judgment in the earlier action.

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2. ESTOPPEL BY DEED

 A party who has executed a deed and those claiming through him are
estopped from denying the truth of the facts stated in the deed or its recitals.
 The principle underlined here is that persons who make solemn assertions or
covenants under seal must be bound by those covenants.
 The doctrine of estoppel by deed is of l imited scope as it can only be raised in
actions brought on the deed. This arises when there is a written document
signed by two parties if one of the parties acted in reliance of the deed and
altered his position then the other party cannot be allowed to challenge the
deed or document. See Carpenter vs. Buller .
 See also

Bowman v Taylor (1834) 4 LJKB 58

The plaintiff had granted to the defendant a license to use looms by a deed which
recited that the plaintiff and invented improvements and obtained letter s patent for
them. The plaintiff sued the defendant for breach of a covenant to pay royalties.

It was held: The defendants were estopped from denying that the plaintiff was the
inventor.

 This rule is subject to the following conditions

1. Estoppel by deed can only be raised in actions brought on the deed i.e.
it only applies between parties’ privy to the deed and only in
proceedings on the deed.
2. Estoppel will not operate to prevent a party from relying on fraud,
illegality, mistake or any fact entitling him to rescission or rectification
of the deed.
3. No estoppel will arise upon recitals or descriptions which are
immaterial or not intended to bind. For a recital to a deed to form the
basis of estoppel by deed it has to contain.
a. Unequivocal statement of facts
b. It has to prove that there has been a contract as a result
of the unequivocal statement.
c. The statement is from the parties themselves or their
representatives.

3. ESTOPPEL BY CONDUCT

 Where a person has by his word or conduct willfully caused another to be lieve
in the existence of a certain state of things and induced him to act on that
belief or alter his position, he is estopped from asserting against that other
person that a different state of things existed at the relevant time.
 There are many distinct forms of estoppel by conduct, the most important of
which are
a. Estoppel by Representation

 Where a person by his words or conduct has made a representation of fact

(NB: not representation of law) with the intention, whether actual or
presumed, of inducing a nother on the faith of that representation to alter his
position to his detriment and as a result that other person has been led so to

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 alter his position, the first person is subsequently estopped from denying, as
against the other person, that the facts w ere as represented.
 This is captured in Section 120 of the KEA

General estoppel.
120. When one person has, by his declaration, act or omission, intentionally caused or permitted another
person to believe a thing to be true and to act upon such belief, nei ther he nor his representative shall be
allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth
of that thing.
 If a person intends his representation to be acted upon and is acted upon,
that person will be precluded from denying the truth.
 Estoppel by representation can only be pleaded if it meets the following
qualifications
i) First the representation either by act, omission or conduct must be
willful and deliberate.
ii) Second the representation must be clear and unambiguous to a
reasonable person.
iii) The representation must be a fact or of future conduct. It must be
such as to force someone to do something in future.
iv) The representation must be of fact not law. A person can only be
estopped from doing a factual a ct but not a legal thing.

b. Promissory Estoppel.

 Where a person by his words or conduct has made an unambiguous

representation as to his future conduct, with eh intention that it will be relied
upon by another person and affect the legal relations between them, and as a
result that the person does alter his position in reliance upon the
representation, the first person is precluded from acting inconsistently with
his representation if the other person would be prejudiced thereby.
 Promissory estoppel also known as equitable estoppel,deals with the future
state of affairs and occurs where a person makes a representation to another
about the state of their future legal relations or their future conduct and other
person acts upon that.
 In this instance an equit able estoppel arises such that the representor is
estopped from denying the representation.
 See

Hughes vs. Metropolitan Railway

A landlord gave a tenant 6 months notice to carry out repairs failure to do so would
result in forfeiture of the lease. The la ndlord and tenant then entered into
negotiations for the tenant to purchase the freehold of the property. It was thought
by both parties that a conveyance of the property would take place. The tenant had
not carried out the repairs as they believed they wo uld be purchasing the freehold
and the repairs required by the landlord were not essential to his use of the
property. At the last minute negotiations broke down and the Landlord gave the
tenant notice to quit for failure to carry out the repairs.

The land lord then filed suit seeking an order, to evict the tenants from the premises.
The courts held that to allow him do so would be inequitable in the circumstances. It
would have been inequitable because by commencing negotiations for the sale of the

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premises to the tenants the land lord had impliedly promised not to enforce the
notice.

Central London Property Ltd vs. High Trees House Ltd

High Trees leased a block of flats from CLP at a ground rent of £2,[Link] was a new
block of flats at the time the leas e was taken out in 1937.

The defendant had difficulty in getting tenants for all the flats and the ground rent
left High Trees with no profit. In 1940 many of the flats were still unoccupied and
with the conditions of the war prevailing, it did not look as if there was to be any
change to this situation in the near future. CLP agreed to reduce the rent to £1,250
during the war years.

The agreement was put in writing and High Trees paid the reduced rent from 1941.
When the war was over the flats became ful ly occupied and the claimant sought to
return to the originally agreed rent.

Held: The rent would be returned to the originally agreed price for the future only.
CLP could not claim back the arrears accrued during the war years. This case is
important as Denning J (as he then was) established the doctrine of promissory
estoppel. Promissory estoppel prevented CLP going back on their promise to accept a
lower rent despite the fact that the promise was unsupported by consideration.

 In Century Automobiles Ltd vs. Hutchings Biemer Ltd the issue of

promissory estoppel was also discussed. It was stated that for estoppel of this
kind to arise:
a) There must be a clear and unequivocal representation
b) There should also be an intention that it is acted on
c) There has to be action upon the representation in the belief that it is
true.

 The effect of the doctrine was suspended legal rights.

 Promissory estoppel differs from estoppel by representation in the following

ways:
1. Promissory estoppel may be founded on a representatio n of intention
while estoppel by representation can only be founded on past or current
facts;
2. In the case of promissory estoppel, the requirement of detriment to the
representee may be satisfied where all he has been led to do is to take a
cause of action different from that which he would otherwise have taken;
and
3. Except in cases where it is impossible to restore the representee to his
original position, the doctrine of promissory estoppel I not permanent in
effect but only serves to suspend and not to ex tinguish rights by giving
the representee a reasonable opportunity of resuming his original position
(see the High Trees case, earlier).

c. Estoppel by Negligence

 When the negligence of the defendant causes a person to believe in the

existence of suppressed fact and that person acts in the belief thereof with

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 the result that he or she suffers damage the defendant is estopped from
denying the existence of the suppressed fact.
 Estoppel by negligence will only apply where there is a relationship of contract
or agency between the parties.
 Estoppel by negligence can only arise where it can be shown that the party
against whom the estoppel operates was in breach of a duty owed to the
victim and it is well settled law that the owner of property who loses that
property may take it back or find a bona fide purchaser for value.
 See

Moorgate v Twitchings [1976] A.C. 890

A car dealer who was a member of HPI, a central register recording about 98% of all
hire purchase agreements relating to motor vehicles,was offered a car for sale by M.

The seller informed the car dealer that the car was free of all hire purchase liability.
The car dealer inquired of the matter from HPI, who informed him that their files
contained no recorded hire purchase agreement in respect of that particular car. On
the strength of the information from HPI, the car dealer purchased the car from M.

The car was in fact subject to a hire purchase agreement made with the plaintiffs, a
finance company who was also a member of HPI. There was no entry in HPI records
of the hire purchase agreement, although it was the practice of the plaintiff to
immediately notify HPI of any hire purchase agreement relating to a car.

When M defaulted on payments, the plaintiff sued the other dealer (the one who
bought the car from M) for conversion.

The defendant claimed that by failing to record the hire purchase agreement with
HPI, the plaintiff was estopped from claiming damages for conversation. A clause in
HPI’s membership agreements with both parties exempted HPI fr om all liability for
inaccurate or incomplete information supplied.

Held: the plaintiffs were under no legal duty to the defendant to register or to take
reasonable care in registering with HPI the hire -purchase agreement in question and
accordingly that an estoppel by negligence could not arise to prevent them from
proving their claim against the defendant.

SELECTED ILLUSTRATIVE CASE LAW ON ESTOPPEL

Doge v Kenya Canners Ltd [1989] KLR 127

The defendant permitted his employee, the plaintiff; to occupy a certain house and
the parcel of land surrounding it on the understanding that legal disposal of the same
would be made at a later date.

The defendant dismissed the plaintiff and required him to vacate the house, arguing
that that his occupation of the ho use was independent of and not conterminous the
contract of employment.

Held (inter alia):

1. It is a principle of justice and equity that when a man by his words or conduct has
led another to believe that he may safely act on the faith of them and the ot her does

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act on them, he will not be allowed to go back on what he has said or done when it
would be unjust or inequitable for him to do so.

2. If a transact is void for lack of consent of the relevant Land Control Board it is void
and there is nothing th e courts can do to help the person who entered into such
transaction made void by the provisions of the act. However in this case there is no
transaction as in envisaged by the Act. In this case there was a promise to do
something in future when the occasi on arose.

Gatune vs. Headmaster of Nairobi Technical High School & Another [1988]
KLR 561

A secondary school teacher suffered severe eye injuries (eventually culminating in

blindness) while conducting an experiment in a school laboratory.

The Plaintiff entered into negotiations with the Attorney General with a view to
settling his claim out of court, but the negotiations lagged for so long that the
limitation period within which he ought to have filed his suit expired.

The Plaintiff’s suit against the Attorney General was met with the claim that it was
time barred. The High Court dismissed his application for extension of time. He
appealed to the court of appeal.

Held (inter alia):

1. The Attorney-General occupies a crucial role in litigation and protr acted
negotiations with him for payment of damages are taken seriously.
2. A reasonable lay claimant would feel that by negotiating with the Attorney
General, the Attorney -General had invited him to delay court proceedings and that
he would not be prejudic ed by the delay.
3. There was a delay of ten months which appeared to have been due to
negotiations. The Attorney -General should have informed the appellant that it was in
his interests to file an action within time and that by doing so, he would not be
prejudicing negotiations out of court.
4. Having not done so and therefore having caused the appellant to continue with
the negotiations, the appellant was not to be penalized and the Attorney -General
was barred [read “estopped”] from setting up the provisio ns of the Limitation of
Actions Act.
– *Is estoppel being upheld against a statute in this case?

Nguyai v Ngunayu [1985] KLR 606

The Plaintiff filed a suit against two Defendants in which he averred that in 1958, he
concluded an agreement for the purchas e a portion of the suit land from the 1st
Defendant as a result of which he (the Plaintiff) moved into possession of the
portion.

In 1964, the 1st Defendant transferred the entire piece of land, including the
Plaintiff’s portion, to the 2 nd Defendant who in turn refused to transfer the Plaintiff’s
portion to him.

The 2nd Defendant had filed a previous suit against the Plaintiff for eviction in which
it was decided that the Plaintiff (then the Defendant) was to vacate the land.

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The Plaintiff prayed for a declaration that he was entitled to the portion of the land
which he had purchased from the 1st Defendant and that the 2nd Defendant be
ordered to transfer that portion to him.

The Defendants pleaded that the Plaintiff’s claim was res judicata by virtue of the
decision of the court in the 2 nd Defendant’s suit against the Plaintiff.

Held (inter alia): The doctrine of res judicata could not apply against the Plaintiff and
the 1st Defendant as the 1 st Defendant had not been a party to the previous suit and
therefore the issues between him and the Plaintiff were neither investigated nor
resolved in that suit. The present case was founded on the sale agreement between
the Plaintiff and the 1st Defendant, which was distinct from the issue of eviction on
which the previous suit was founded.

Combe v Combe [1951] K.B. 215 CA

A wife petitioned for divorce and obtained a decree [Link] the decree could be
made absolute, the husband promised to pay her some 100 a year free of income
tax. The wife promised, withou t any prompting from her husband, not to apply for
maintenance from the divorce court.
The husband reneged on the promise to pay the sum of 100 a year. Seven years
later, the wife sued on the promise.

It was Held:
1. The principle stated in Central London Property Trust Ltd v High Trees House Ltd
and Robertson v Minister of Pensions is that, where one party has, by his words or
conduct, made to the other a promise or assurance which was intended to affect the
legal relations between them and to be acted on accordingly, then, once the other
party has taken him at his word and acted on it, the party who gave the promise or
assurance cannot afterwards be allowed to revert to the previous legal relationship
as if no such promise or assurance had been made by hi m, but he must accept their
legal relations subject to the qualification which he himself has so introduced, even
though it is not supported in point of law by any consideration, but only by his word.

2. The principle stated in Central London Property Tru st Ltd v High Trees House Ltd
and Robertson v Minister of Pensions (of promissory estoppel) does not create any
new cause of action where none existed before; so that, where a promise is made
which is not supported by any consideration, the promisee cannot bring an action.

*NB: This case is an illustration of the general rule that estoppel cannot found a
cause of action where none exists; estoppel can only be used as a shield, not as a
sword.

Greenwood v Martin’s Bank [1933] A.C. 51

The plaintiff and his wife had a joint account with bankers who undertook to honour
cheques signed by both customers. Afterwards, that account was closed and an
account was opened in the sole name of the plaintiff, the wife having no authority to
draw cheques upon it.
During the currency of both accounts the wife repeatedly forged the plaintiff’s
signature to cheques, and drew out money which she applied to her own uses.

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During the currency of the sole account the plaintiff became aware of the forgeries,
but, being persuaded b y his wife to say nothing about them, he kept silence for eight
months.
When the plaintiff finally determined to disclose the forgeries to the bank, the wife
committed suicide.

The plaintiff sued the bankers to recover the sums paid out of the sole accoun t on
cheques to which his signature had been forged by the wife.

Held:
1. The plaintiff owed a duty to the defendants to disclose the forgeries when he
became aware of them and so enable the defendants to take steps towards
recovering the money wrongfully paid on the forged cheques.
2. The plaintiff was estopped from asserting that the signatures to the cheques were
forgeries, and was not entitled to recover.
*NB: Estoppel by conduct arises in this case because the plaintiff’s representation
(by conduct/silence/omission) had led to detrimental reliance on the part the bank.

Lowe v Lombank [1960] 1 WLR 197

The plaintiff, a widow of 65 years of age, agreed to purchase a motor -car on hire-
purchase terms from the defendants, a hire purchase company.

The hire- purchase agreement consisted of a printed form, Clause 8 of which

provided that the only warranties should be those implied under the Hire -Purchase
Acts, 1938 and 1954, in respect of hire -purchase transactions within the Acts.

Clause 9 (ii) provided ( inter alia) that the hirer acknowledged that he had examined
the goods and that they were of merchantable quality and, further, that he had " not
made known to the owners expressly or by implication the particular purpose for
which the goods are required ," and that the goods were fit for the purpose for which
they were in fact required.

When the plaintiff signed the hire - purchase agreement she did not read it and had
not seen the car, but the salesman assured her that it was “perfect" or nearly so.

When the car was delivered she signed a delivery receipt which contained a
statement that she acknowledged that she had read the hire -purchase agreement
and, further, that she had examined the goods and that they were in good order and
condition.

The car, in fact, was not roadworthy, and the plaintiff claimed damages for breach of
the implied condition of fitness for purpose in section 8 (2) of the Hire -Purchase Act,
1958 1:—
It was Held:
1. The plaintiff had by implication made known to the defendants that she r equired
the car for the purpose of driving about in.
2. The defendants were not entitled to rely on clause 9 (ii) of the agreement, which
was an attempt to evade the provisions of section 8 (2) and (3) of the Hire -Purchase
Act, 1938.
3. The plaintiff was n ot estopped by signing the delivery receipt from relying on the
breach of the implied condition that the car was reasonably fit for use as a means of

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transport, since the defendants had failed to prove the three requirements necessary
to establish estoppel , namely
(a) That the statement in the receipt was clear and unambiguous;
(b) That the plaintiff had intended that the defendants should act upon it; and lastly,
(c) That the defendants had believed the representation in the receipt to be true and
had acted upon it.
4. Accordingly, the plaintiff was accordingly entitled to damages.

*NB: This case is good illustration of the general rule (which is controverted by some
judges and authors) that an estoppel can not be set up against the law or, more
accurately, against clear statutory provisions.

Purser & Co. Ltd v Jackson [1977] 1 Q.B. 166

The Plaintiffs purchased a new bungalow which had been warranted by the builders
to comply with all the requirements of the National House -Builders' Registration
Council.

The agreement between the parties provided, inter alia, that the builder should make
good any defects within a reasonable time after receipt of the purchaser's report and
that the purchaser should report any defects as soon as possible after they
appeared.

The agreement also provided that any disputes concerning defects in the building
should be referred to arbitration.

In August 1970, the Plaintiffs referred a dispute concerning a ceiling defect in the
main bedroom to arbitration.

In June 1972, a surve yor wrote to the arbitrator on behalf of the Plaintiffs about
other defects in the roof which it was estimated would cost £800 to put right.

In August 1972, the arbitrator awarded £105 to the Plaintiffs. The Plaintiffs
maintained that the roof defects had not been considered by the arbitrator when he
made the award of £105 and requested the appointment of a second arbitrator to
adjudicate upon the roof defects.

The builders contended that the Plaintiffs were estopped per rem judicatam from
raising the question of the roof defects as there had already been an award on the
first complaint and that all defects were or should have been before the first
arbitrator.

Held:
a. In arbitration proceedings, the matters which determined the issues to
be decided by the a rbitrator were those matters which had been
included in the terms of reference and it was only if a matter had been
before the arbitrator that that there was an estopel per rem judicatam.

b. By providing in the contract for disputes to be settled by arbitrat ion,

the parties intended serial arbitration as they envisaged that disputes
about building defects would arise from time to time; consequently
there could not be a bar by estoppel per rem judicatam to the raising

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 on a subsequent occasion of a defect which was not covered by a first
arbitration.

The following should be noted with regard to estoppel:

1. Estoppel has to be mutual or reciprocal and consequently has
to bind both parties; A stranger can neither take advantage of
nor be bound by Estoppel.
2. Estoppel cannot circumvent the law. Accordingly, one cannot
invoke estoppel to validate an invalid act or vice versa.
3. Estoppels must be certain; the statement which forms the
basis of an estoppel should be precise, clear, unambiguous
and incapable of being read in more than one way.
4. It is immaterial whether the maker of the statement or the
representor believes it to be true or false; if he makes
reckless statements to the detriment of another person, he
will be estopped from denying the truth of the statements.
5. Generally, the representation which is the basis of an
estoppel must be a statement or representation of fact which
existed in the past or is existing at the time of the making of
the statement or representation; It should not be a promise
in [Link] is not essential that intention to deceive or
defraud must be there for estoppel to be there. Suffice it that
you made the representation and a person has changed their
statement then estoppel will arise.
6. The effect of estoppel is to bind a party and to prevent them
from relying on certain facts and denying certain facts.

 A good example is the case of

Moorgate v. Twitchings

Where an owner of property entrusted his property to the care of another person. By
his conduct that other party had, albeit unintentio nally, by his conduct led a third
party to believe the owner had no title to the property.

The third party acted in reliance to that belief and the owner was held estopped from
asserting his title against that third party who had acted in the belief that the owner
had no title because of the representation through conduct of the owner who had
been left in charge of property. This person acted on the best evidence that he had.
Only the person in charge of the property would have known better. And the court
held that the owner was estopped from asserting his title against the third party.

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LECTURE 12: FRIDAY 29 TH MARCH 2013 – SHERIA HALL 5.30-8.30 PM

BURDEN AND STANDARD OF PROOF

 Burden of proof comes from the lati n word ‘onus probandi’

 It means an obligation to adduce the evidence of a fact.
 It can also be described as a matter of law and pleading and as a matter of
adducing evidence.
 Or it can be described as the duty which lies on one or other of the parties
either to establish the facts upon a particular issue.
 This quote from Sir John Woodrooffs is most useful he says : “Burden of proof
means the burden of establishing a case whether by preponderance of
evidence or beyond reasonable doubt and the duty or necessi ty of introducing
evidence either to establish such a case or to meet an adverse amount of
evidence sufficient to constitute a prima facie case”

THE DIFFERENT TYPE S OF BURDEN OF PROOF

 We have described burden of proof above as the duty which lies on one or
other of the parties either to establish the facts upon a particular issue, this
brings out two fundamental meanings i.e.

a) The Legal or Persuasive Burden of Proof

 The legal or persuasive burden of proof in pleadings refers to
the obligation on a party t o prove to a court of law the truth of
some proposition of a fact in issue whether by a preponderance
of evidence or beyond reasonable doubt.
 The penalty of failing to determine the legal burden of proof in
a case is the certainty of failure in the whole a ction.

b) The Evidential Burden of Proof

 The evidential burden refers to the obligation on a party to
adduce sufficient evidence of a particular fact in order to justify
a finding on the fact in favour of the party who is under the
obligation. (Burden of add ucing evidence).
 Failure to discharge the evidential burden carries with it the risk
but not the certainty of failure in the whole or some part of the
action.
 The evidential burden is considered in two stages
i) Firstly at the beginning of the proceedings in order to
determine which party begins.
ii) Secondly at any time during trial to determine whether
enough evidence has been adduced in support of an
asserted fact for it to become a justiciable issue (One
which requires the opposing party adduce evidence in
rebuttal).

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DIFFERENCE BETWEEN LEGAL OR PURSUASIVE AND EVIDENTIAL BURDEN
OF PROOF
 That the legal burden of proof and the incidence thereof is a question of law
and it is static since it rests only on one party.
 But the evidential burden is a question of mixed law and fact and it shifts in
the entire course of the proceedings.i.e it does not rest on one party
designated by the pleadings but on the party whether the plaintiff or the
defendant against whom the tribunal at the time when the question is to be
determined would give its judgment in favour of a prima facie basis.

SCOPE OF THE BURDEN OF PROOF

1. CRIMINAL CASES

a) The Persuasive or Legal Burden

 The legal burden in criminal cases rests on the prosecution to prove the
defendant’s guilt beyond reasona ble doubt.
 This proposition is firmly settled and it never shifts except where there is an
express statutory provision or impliedly vests the legal burden on another
party.
 This position is also cemented in the constitution Article 50 (2) (b) the rights
of an accused person which right is based on the presumption of innocence.
 When some one is said to be presumed innocent until proven guilty the
prosecution is obliged to prove the case against him beyond reasonable
doubt, this is a fundamental rule of crimi nal procedure.
 See

Woolmington vs. DPP [1935] ALL ER 1 AC 462 (HL)

The accused was charged with the murder of his wife. He pleaded not guilty and
testified that though he had shot his wife ,the shooting was accidental .The trial
court directed the jury t hat once it was proved and admitted that the accused shot
his wife the accused bore the burden of disproving malice aforethought. The accused
was convicted and appealed.

The House of Lords in the now famous words of Lord Sankey LC said: Throught the
web of English criminal law one golden thread is always to be seen, that it is the duty
of the prosecution to prove the prisoner’s guilt subject to what I have said as to the
defence of insanity and subject to any statutory exception. No matter what the
charge or where the trial, the principle that the prosecution must prove the guilt of
the prisoner is part of the English Common Law and no attempt to whittle it down
can be entertained…..

From the above quote there is a submission that the accused bears no lega l burden
in respect of the essential ingredients of an offence be they positive or negative and
whether or not he denies any or all of them.

It is the duty of the prosecution to proof the case beyond reasonable doubt if at the
conclusion of the trial ther e exists a doubt on the whole of the case, created by
evidence given by either the prosecution or the prisoner as to whether the prisoner
killed the deceased with a malicious intent, the prosecution has not made out its
case and the prisoner is entitled to acquittal.

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  An exception to this rule occurs in cases where there are express statutory
provisions or where insanity and intoxication are pleaded as a defence.

WHERE THE ACCUSED ALLEGES ALIBI

 The rule is so clear that even when an accused person alleges alibi as a
defence this does not alter the general principle as to the burden of proof in
criminal cases.
 A prosecutor must find a competent witness to place the accused exactly at
the scene of the crime at the material time.
 The accused must be placed at the scene armed with motive, means and
opportunity.
 See

Ssentale vs. Uganda [1968] EA 366

The appellant was convicted of robbery with violence on a charge of attacking the
complainant and by violently removing and running off with her sweater. He
appealed on grounds that there was no proper evidence of identification and that the
Magistrate had not properly directed herself on the question of burden of proof
relating to an alibi raised by the accused. On appeal the court held that an accused
who puts forward an alibi as an answer to charge does not assume the burden of
proving that answer and that the Magistrate had misdirected herself on this point.
The appeal was allowed and the conviction quashed.

WHERE THE ACCUSED REMAINS SILENT

 It is worth noting t hat silence by an accused does not mean acceptance of

guilt.
 See

Joseph Mbithi and Anor vs. R [Criminal Appeal No 77/79]

The appellants were charged and convicted of handling stolen cattle. In the trial
court none of the accused disputed the ownership or identity of all the cattle
mentioned in the three counts before the court and they had been stolen from their
[Link] convicted them based on this evidence. On appeal court held that it
was for the prosecution to prove beyond reasonable doubt that the cattle had been
stolen and that mere silence on the part of the accused did not amount to proof that
the accused had stolen the cattle.

b) The Evidential Burden

 The evidential burden may shift constantly as evidence is adduced by either

side.
 The onus of discharging this burden rest upon he who would fail if no
evidence at all was given ob either side.
 The best exemplification of evidential burden is demonstrated in criminal
cases where the prosecution is required by law to establish a prima facie case
or a case sufficient to require the accused to enter a defence.

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CIVIL CASES

a) Persuasive or Legal Burden

 The general rule on the legal burden in civil cases lies on the
party who asserts the affirmative of an issue.
 This burden is fixed at the beginning of the trial by the state
of pleadings and remains unchanged it never shifts during the
trial.
 This is settled as a question of law and failure to discharge
this duty results in a judgment being made against him.
 The legal burden thus lies on the party who su bstantially
asserts the affirmative of the issue and not upon the party
who denies it.e.g in an action for negligence the plaintiff
bears the legal burden of proving duty of care, breach of such
duty and the loss suffered in consequence.
 In the case of breach of contract the plaintiff bears the legal
burden of proving the contract, its breach and the
consequences while the defendant bears the legal burden of
proving the defence of frustration or discharge if any.
 The only exception to this general rule ari ses where negative
assertion is an essential aspect of the plaintiff’s claim. For
example in a suit for damages for malicious prosecution, the
plaintiff must prove the defendant prosecuted him
unsuccessfully and in the absence of reasonable and
probative cause.

b) The Evidential Burden

 Both the legal and evidential burden in civil cases is closely

tied together.
 Whoever desires any court to give judgment as to any legal
right or liability dependent on the existence of facts which he
asserts must prove that t hose facts exists.i.e he must adduce
evidence to prove the alleged fact.
 In a civil suit there is no burden cast on any party similar to
the criminal prosecutions which requires the prosecution in all
fairness to produce even evidence against its case.
 However the onus of discharging this burden still rests upon
the party who would fail if no evidence at all was given on
either side.e.g the burden of satisfying that a consent decree
ought to be set aside on the ground of fraud rests on the
plaintiff.

THE GENERAL RULE ON THE BURDEN OF PROOF

1. The general rule is that the burden of proof lies on the party who avers
and failure to discharge the obligation to prove the facts may result in
failure in the whole or part of the litigation.
2. The incidence of the burde n of proof in a suit lies on that person who
would fail if no evidence at all were given on either side.
3. In criminal cases the incidence of the burden lies on the prosecution to
prove the case beyond reasonable doubt while in civil cases it is

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 usually lies on the plaintiff to prove his case on a balance of
probabilities.
4. Sir John Woodroffe summarized “He who invokes the law must prove
his case”.

EXCEPTIONS TO THE GENERAL RULE

IN CRIMINAL CASES

1. An Express Statutory Exception

 This exception becomes applic able only in instances where Parliament has
relieved the prosecution of its original burden and placed it upon the accused.
 A few Examples

a) Section 15 of the Immigration Act Cap 172

Burden of proof

15. Whenever in any legal proceedings under or for any o f the purposes of this Act any one or
more of the following questions is in issue, namely -

(a) whether or not a person is a citizen of Kenya;

(b) whether or not a person is one of the persons mentioned in section 4 (3);
(c) whether or not there has been issued or granted to any person a passport, certificate,
entry permit, pass, authority, approval or consent, whether under this Act or under the
repealed Acts;
(d) whether or not any person was at any time entitled to any such issue or grant as is
referred to in paragraph(c),

the burden of proof shall lie on the person contending that that person is a citizen of Kenya, or
one of the persons mentioned in section 4 (3), or a person to whom such an issue or grant
was made, or a person who was entitled to suc h an issue or grant, as the case may be.

b) Section 16 (1) of the Stock Produce Theft Act Cap 355

Prohibition of sale of stock or produce in proclaimed district at night.

16. (1) No person shall sell or deliver any stock or produce in a proclaimed distric t between
sunset and sunrise, and any person so doing and any person buying or taking delivery of any
stock or produce which is sold in contravention of this section shall be guilty of an offence if he
fails to satisfy the court that he has it lawfully and shall be liable to a fine not exceeding one
hundred shillings or to imprisonment for a term not exceeding six months, or to both such fine
and imprisonment.

c) Section 20 (2) of the Public Order Act Cap 56

Proof of instigation, lawful authority or excuse.

20 (2) For the avoidance of doubt, it is hereby declared that the burden of proving lawful or
reasonable excuse or lawful authority shall be upon the person alleging the same, and
accordingly in any proceedings for an offence under this Act or any regula tions made
thereunder it shall not be incumbent on the prosecution to prove the lack of any such excuse
or authority.

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 d) Section 30 (1) and (2) of the Bill of Exchange Act Cap 27

Presumption of value and good faith

30. (1) Every party whose signature a ppears on a bill is prima facie deemed to have become
a party hereto for value.

(2) Every holder of a bill is prima facie deemed to be a holder in due course; but if in an
action on a bill it is admitted or proved that the acceptance, issue or subsequent negotiation cf
the bill is affected with fraud, duress or force and fear, or illegality, the burden of proof is
shifted, unless and until the holder proves that, subsequent to the alleged fraud or illegality,
value has in good faith been given for the bil l.

2. An Implied Statutory Exception

 For example diplomats are not subject to the criminal and traffic laws of the
country in which they serve and it is therefore incumbent upon them to prove
this fact.
 See Section 111 (1) of KEA

Burden on accused in certain cases.

111. (1) When a person is accused of any offence, the burden of proving the existence of circumstances
bringing the case within any exception or exemption from, or qualification to, the operation of the law
creating the offence with which he i s charged and the burden of proving any fact especially within the
knowledge of such person is upon him:

Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by
the prosecution, whether in cross -examination or otherwise, that such circumstances or facts exist:

Provided further that the person accused shall be entitled to be acquitted of the offence with which he is
charged if the court is satisfied that the evidence given by either the prosecution or the defence creates a
reasonable doubt as to the guilt of the accused person in respect of that offence.

3. Defence of Insanity or Intoxication

 Section 11 of the Penal Code makes a presumption that every one is sane
until otherwise proved.
 The onus of provi ng otherwise therefore lies on the person who claims
insanity. This is further stated in Section 111 (2) (c) of the KEA.
 See

Kamau s/o Njoroge vs. R

It was held that the burden of proving insanity rests on the accused who is deemed
to have discharged thi s burden if the preponderance of evidence supports his
defence.

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IN CIVIL CASES

 In civil cases the exceptions apply to the effect that the burden of proof lies
on the respondent.
 These exceptions are provided for in the KEA as follows:

Proof of special knowledge in civil proceedings.

112. In civil proceedings, when any fact is especially within the knowledge of any party to those
proceedings, the burden of proving or disproving that fact is upon him.

Disproving apparent special relationship.

115. When the question is whether persons are partners, landlord and tenant, or principal and agent, and it
has been shown that they have been acting as such, the burden of proving that they do not stand, or have
ceased to stand, to each other in those relation ships respectively, is on the person who affirms it.

Disproving ownership.

116. When the question is whether any person is owner of anything of which he is shown to be in
possession, the burden of proving that he is not the owner is on the person who af firms that he is not the
owner.

Proof of good faith.

117. Where there is a question as to the good faith of a transaction between parties, one of whom
stands to the other in a position of active confidence, the burden of proving the good faith of the tr ansaction
is on the party who is in a position of active confidence.

SHIFTING THE BURDEN OF PROOF

 The burden of proof shifts only in so far as the burden of adducing evidence is
concerned.
 This means that the burden of establishing a case remains throu ghout the
entire case where the pleading originally put it.
 However the burden of adducing evidence is the obligation to prove a
particular set of facts and it shifts between the prosecution and the defence
depending on how each side introduces its evidenc e against the other
party.e.g if the courts finds that the prosecution has established a prima facie
case against the accused, the burden of adducing evidence to the contrary
shifts to the defence.
 Therefore the shifting burden of proof refers to the burde n of adducing
evidence and it does not affect the incidence of the original legal burden of
proof.
 See Section 109 of KEA

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Proof of particular fact.
109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its
existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

 Therefore the burden of establishing a case should not be confused with the
burden of adducing evidence because the former never shifts but the latter
does shift occasionally.
 See Section 107,108 and 109

Burden of Proof

107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the
existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies
on that person.

Incidence of Burden

108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all
were given on either side.

Proof of Particular Fact

109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its
existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

 Under section 110 no one is entitled to give evidence of any fact without first
showing that he is legally entitled to do so. This means that if there is
conditions precedent to the admission of certain kinds of evidence, then the
requirements for admission of the evidence must be proved before the
evidence is admitted.

Proof of Admissibilty
110. The burden of proving any fact necessary to be proved in order to enable any person to give evidence
of any other fact is on the person who wishes to give such evidence.

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LECTURE 13: FRIDAY 5 TH APRIL 2013 – SHERIA HALL 5.30-8.30 PM

EVIDENCE OF CHARACTER

DEFINITION

 Character refers to the qualities which distinguish a person from another i.e
the moral nature and the fame either good or bad.
 Character evidence therefore refers to the testimony concerning the
reputation of a person in his community i.e. among those persons who know
him best, regarding a particular trait.
 Section 58 of the KEA off ers a working attempt to define “character”

Definition of “character”

58. In sections 55, 56 and 57 the word “character” includes both reputation and disposition; but,
except as provided in section 57, evidence may be given only of general reputation an d general disposition,
and not of particular acts by which reputation or disposition were shown.

 As per section 58 character refers to both reputation and disposition

a) Disposition

 The disposition of a person is his inclination, proclivity or inner ten dency i.e
his propensity to act, think or feels in a given way.
 Disposition also refers to a general tendency of character or behaviour e.g.
one can be said to have a happy disposition.

b) Reputation

 Reputation on the other hand refers to the opinion held b y others about
someone or something.
 The estimation, in which a person is held in the community where he/she
lives, works or is generally known.
 It is the degree to which one is thought of either positively or negatively by
others.

RATIONALE

 Evidence of character is based on the rationale that indeed reputation and

disposition are relevant in deciding a case.
 When the evidence of character is admissible then it may have an inclination
towards the credibility of a witness who appears in court.
 Under common law witnesses as to character were only allowed to testify on
the general reputation of the accused and were not allowed to give evidence
of specific aspects of the characters of an individual when given the
opportunity to testify as a witness.
 This rule was to give everyone a chance of having a free and fair trial on
issues in court without bias that would otherwise result from specific incidents
and in turn influence the jury or judge.
 See

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R [Link] [1865] Le & Ca 520

The defendant was charged with in decent assault of a young boy. He called several
witnesses to testify as to his moral character and the prosecution was allowed to
produce two witnesses who were formerly his students in rebuttal. When he was
asked about the defendant’s general character f or decency and morality the witness
replied:

“ I have no knowledge of what the neighborhood thinks of him, because I was only a
boy in school when I knew him; but my own opinion and that my brother who was
also his pupil, is that his character is that of a man capable of the grossest
indecencies and the most flagrant immorality”

The evidence was admitted and the accused raised an objection on the grounds that
the evidence adduced was specific as it impugned on his character. On appeal the
court held that whenever evidence of a good character has been given in favour of a
prisoner, evidence of his general bad character may be called in reply. As to the
question whether the evidence in rebuttal should be evidence of general reputation
or evidence of disposit ion it was held that evidence in rebuttal should be evidence of
his general reputation in the neighborhood in which he lives and should not include
evidence of specific good or bad acts of an accused. Further that any evidence in
rebuttal should be confine d to evidence of the reputation of the accused amongst
those whom he is known and should not include evidence of specific credible acts of
an accused nor evidence of a witness opposing his disposition.

In the words of Cockburn CJ:

“I am of the opinion th at it means evidence of general reputation. What you want to

get at is the tendency and disposition of the man’s mind towards committing or
abstaining from committing the class of crime which he stands charged; the only way
of getting at it is by giving ev idence of his general character founded on his general
reputation in the neighborhood in which he lives”.

 See also

R vs. Redgrave [1982] 74 Cr App R 10, CA

The appellant was charged with persistently importuning for an immoral purpose
contrary to section 32 of the Sexual Offences Act (1956).The jury disagreed at the
first trial and on re-trial the appellant sought to tender detailed evidence of his
heterosexual relationship with girls to rebut inferences from his conduct as observed
by police officers th at he had been making homosexual advances to them. The judge
ruled that the evidence was admissible and the appellant was convicted.

The appellant appealed inter alia on the grounds that the ruling of the jury was
wrong. It was held on appeal that a defen dant could call evidence to show that he
did not commit the acts alleged against him. However a defendant is not allowed by
reference to particular facts to call evidence that he is of a disposition which makes it
unlikely that he would have committed the offence charged as the appellant in the
instant case was trying to do. Further that the trial judge was correct in ruling as he
did for the production of that sort of evidence. It would have been both inadmissible
as a matter of law and undesirable. Conseq uently the appeal was dismissed.

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CHARACTER EVIDENCE IN CIVIL CASES

 The general rule in civil cases is that the evidence of character of parties is
inadmissible in order to render probable or improbable any fact in issue or
conduct imputed to any person.
 See Section 55 (1) of KEA

Character in civil cases.

55. (1) In civil cases, the fact that the character of any person concerned is such as to render probable
or improbable any conduct imputed to him is inadmissible except in so far as such character app ears from
facts otherwise admissible.
(2) In civil cases, the fact that the character of any person is such as to affect the amount of damages,
is admissible.

 It should be noted that the tribunal or the Court is not concerned with trying
the character of the parties but with the facts of the case and the relevance
and admissibility of the evidence before it.

EXCEPTIONS TO THE GENERAL RULE

1. Character as a Fact in Issue

 Character evidence is admissible where such character appears from the facts
as otherwise admissible.
 Vide Section 55 (1) the evidence of character of a party or non -party is
admissible if it is in issue or of direct relevance.
 For Example in a defamation claim where the defence of justification is
tendered, the character of the plaintiff directly comes into issue. To justify the
reception of a defamatory statement already made the defendant must prove
that the statement was true and was not merely made.

2. Character which affect Quantum of Damages

 This is a specific exception provided unde r section 55 (2) of the KEA and
applies where character evidence adduced in any proceeding affects the
quantum of damages to be awarded in court.
 Again in a defamation case in order to rebut the defence of justification a
plaintiff would have to call inter -alia cogent evidence of character to
demonstrate what a reputable and upright character he is, likewise the
character of a plaintiff in an action for defamation is also of direct relevance if
he succeeds to the quantum of recoverable damages.
 The damages awardable are dependent on the estimation in which he is held
by the society.

3. Character Relevant to Fact in Issue

 Evidence of disposition of the defendant towards wrongdoing or commission

of a particular kind of civil wrong may be admissible if it is of sufficient
relevance or probative force in relation to the facts in issue.
 Such evidence relates to particular acts of misconduct on other occasions and
is designated “Similar Facts Evidence”.

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  See

Mood Music Publishing [Link] vs. De Wolfe Ltd [1976] [Link] A (CA)

The plaintiffs were owners of the copyright in a musical work called ‘Sogno
Nostalgico”.They alleged that the defendants had infringed such copyright by
supplying for broadcasting a work entitled “Girl in the Dark”. It was not disputed that
the works were similar, but the defendants argued that the similarity was
coincidental and denied copying even though “Sogno Nostalgico” was composed prior
to the “Girl in the Dark”. The plaintiffs were permitted to adduce evidence to show
that on the other occas ions, the defendant had reproduced works subject to
copyright. The defendants appealed and it was held that

a) In civil cases the courts will admit evidence of similar facts if it is

logically probative that is logically relevant in determining the matter
which is in issue; Provided that it is not oppressive or unfair to the
other side. Further that the other side has a fair notice of it and is able
to deal with it.
b) Upon the issue in dispute in this case it is relevant to know that there
are other cases of mu sical works which are undoubtedly the subject of
copyright but that the defendants have nevertheless produced musical
works bearing close resemblance to them.

4. Character Relevant to Credit

 In civil proceeding any witness who gives evidence whether or not party
thereto is liable to cross -examination as to his credibility as a witness that is
his/her character will be probed in cross -examination. See Section 148 of the
KEA.

Witness to character.
148. A witness to character may be cross -examined and re-examined.

 As a general rule the cross -examining party is not allowed to adduce evidence
to contradict a witness’s answer to a question concerning his credit or
character.
 This is because questions as to the character/credit of a witness are collateral
to the issues before the court. See Section 157 (1)

Discretion of court to compel witness to answer question as to credit.

157. (1) If any question asked relates to a matter not relevant to the suit or proceeding except in so far as it
affects the credit of the witness by injuring his character, the court shall decide whether or not the witness
shall be compelled to answer it, and may, if it does not so compel him, warn the witness that he is not
obliged to answer.

CHARACTER EVIDENCE IN CRIMINAL CASES

 At common law as well as under the Evidence Act, the general rule is that the
prosecution is not allowed to adduce evidence of the accused person’s bad
character or to cross -examine witnesses for the defence with a view of
eliciting such evidence. See Section 57 (1) of the KEA

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Bad character in criminal cases.

57. (1) In criminal proceedings the fact that the accused person has committed or been convicted of or
charged with any offence other than that with which he is then charged, or is of bad character, is
inadmissible unless -
(aa) such evidence is otherwise admissible as evidence of a fact in issue or is directly relevant to a fact
in issue; or

(a) the proof that he has committed or been convicted of such other offence is admissible under
section 14 or section 15 to show that he is guilty of the offence with which he is then charged; or

(b) he has personally or by his advocate asked questions of a witness for the prosecution with a view
to establishing his own character, or has given evidence of his ow n good character; or

(c) the nature or conduct of the defence is such as to involve imputations on the character of the
complainant or of a witness for the prosecution; or

(d) he has given evidence against any other person charged with the same offence :

Provided that the court may, in its discretion, direct that specific evidence on the ground of the exception
referred to in paragraph (c) shall not be led if, in the opinion of the court, the prejudicial effect of such
evidence upon the person accused w ill so outweigh the damage done by imputations on the character of the
complainant or of any witness for the prosecution as to prevent a fair trial.

(2) Notwithstanding the provisions of subsection (1), evidence of previous conviction for an offence may
be given in a criminal trial after conviction of the accused person, for the purpose of affecting the sentence
to be awarded by the court.

 Indeed it is this general rule that informs the first limb of the statement by
Lord Herschell in

Makin vs. AG of New South Wales [1894] AC 57 (PC)

Mr. and Mrs. Makin were tried and found guilty of the murder of an infant named
Amber Murray, whom they had adopted.
The Appellants had represented to the mother of the infant that they wished to adopt
it as their own ch ild, but they did not mind receiving a small premium of £[Link]
mother of the infant gave them the child upon payment of the premium. The
premium was insufficient for the support of the child, except for a limited period.
The Makin’s pleaded that they had h ad a bona fide intention to adopt the baby, and
that it had died accidentally. There was no direct evidence to show that they
Had murdered the deceased infant. To counter the defences of bona fide adoption
and accidental death, the prosecution adduced evid ence that—
a. The Makin’s had adopted several other babies under similar
circumstances (for a small fee premium) whom they could not account
for; and
b. Bodies of several other infants had been found buried (in a similar
manner as the body of Amber Murray) at th e backyards of three
residences previously occupied by the Makin’s

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The Makin’s appealed against conviction, arguing that the trial judge had erred in
admitting evidence of the finding of other bodies than the body of the child alleged to
be Amber Murray.

Held (by Lord Herschell LC, at p. 65):

1. It is undoubtedly not competent 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 c onclusion that the accused is a
person likely from his criminal conduct or character to have
committed the offence for which he is being tried.
2. The mere fact that the evidence adduced tends to show the
commission of other crimes does not render it inadmiss ible if it be
relevant to an issue before the jury, and it may be so relevant if it
bears upon the question whether the acts alleged to constitute the
crime charged in the indictment were designed or accidental, or to
rebut a defence which would otherwise be open to the accused.
3. Their Lordships “cannot see that it was irrelevant to the issue to be
tried by the jury that several other infants had been received from
their mothers on like representations, and upon payment of a sum
inadequate for the support of the child for more than a very limited
period, or that the bodies of infants had been found buried in a similar
manner in the gardens of several houses occupied by the prisoners.”
4. The evidence of other bodies was admissible.

 The significance of this ruli ng is that the Privy Council recognized that as a
general rule evidence of the bad character of an accused was not admissible
in order to prove that he was guilty of the offence with which he was
presently charged.
 In criminal proceedings the fact that the person accused is of a good
character is admissible in evidence. See Section 56 KEA

Good character in criminal cases.

56. In criminal proceedings, the fact that the person accused is of a good character is admissible.

EXCEPTIONS TO THE GENERAL RULE I N CRIMINAL CASES

 These exceptions make admissible evidence of bad character that would

otherwise be inadmissible. They are as follows:

1. Evidence which forms part of a fact in issue or is directly relevant to the

fact in issue.

 See

Mugo vs. [1966] EA 124

In this case it was argued that based on the wording of Section 57 (1) (a), where the
accused were charged with more than one count,a court should direct itself that any
evidence which showed an accused was guilty of an offence on any one of the

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counts, was inadmissible and could not be taken into account when considering any
of the other counts.

In this case the appellants were each convicted of five counts of robbery with
violence in allegations that they were involved in the raid of five petrol st ations in
Nairobi. The accused persons were found in possession of a stolen motor vehicle that
they had used to get away. Their identification were established at identification
parades where the identifying witness also misidentified innocent men. They we re
convicted.

On appeal the appellants argued that the discrepancies made the identifications
unreliable. Further that the trial court should have directed itself that any evidence
which showed that an accused was guilty of an offence on any of the other counts
was inadmissible and could not be taken into account when considering the count in
question. The prosecution asked for the sentences to be enhanced. The court of
appeal after lengthy and critical look at the law, held that an identifying witness
could be relied on, only in so far as they identified a particular appellant in respect of
a particular count.

The count went on to hold that Section 57 (1) (a) of the KEA OF 1963 when properly
construed in conjunction with the marginal notes was intended to prevent evidence
of previous offences or charges, the accused’s character not being in issue, where
the only effect thereof would demonstrate a tendency or propensity to commit the
offence in question.

The section could not be used to exclude evidence of the commission of another
offence, when such evidence was admissible as evidence of a fact in issue or
evidence related to a fact in issue.

2. Similar Fact Evidence Exception

 Similar facts evidence is evidence of disposition of the accused towards

wrongdoing or of specific acts of misconduct on other occasions whether or
not they resulted in previous convictions.
 Such evidence is exceptionally admissible where it is sufficient probative force
in relation to the question of guilt on the charge before the court.
 Section 57 (1) (a) read together with section 14 and 15 states that evidence
which proves that the accused person has committed or been convicted of
such offence is admissible to show that he is guilty of the offence with which
he is then charged.

Bad character in criminal cases.

57. (1) In criminal proceedings the fact that the accused person has committed or been convicted of or
charged with any offence other than that with which he is then charged, or is of bad character, is
inadmissible unless -

(aa) such evidence is otherwise admissible as evidence of a fact in issue or is directly relevant to a fact
in issue; or

(a) the proof that he has committed or been convicted of such other offence is admissible under
section 14 or section 15 to show that he is guilty of the offence with which he is then charged; or

Facts showing state of mind or feeling.

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 14. (1) Facts showing the existence of any state of mind, such as intention, knowledge, good faith,
negligence, rashness, ill-will or good-will towards any particular person, or showing the existence of any
state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily
feeling is in issue or relevant.

(2) A fact relevant within the meaning of subsect ion (1) as 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.

(3) Where, upon the trial of a person accused of an offence, the previous commission by the accused of an
offence is relevant within the meaning of subsection (1), the previous conviction of such person is also
relevant.

Facts showing system

15. When there is a question whether an act was accidental or intentional, or done with a particular
knowledge or intention, 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.

 In such cases the rule is that evidence which would show that the accused
did what he did as part of a system advertently or with guilty knowledge is
admissible (Note evidence of non -criminal immorality is not admissible
and only evidence of previous convictions is admissible.)
 See

R [Link] [1960] 2 QB 207

This case involved the trial of an appellant for entering a dwelling house by night
with intent to steal. The appellant admitted climbing in through an open window of
the house at midnight where he was found shortly afterwards by the occupant asleep
in a chair before the fire. The defenc e was that the appellant had entered merely for
warmth and in order to sleep. Despite defence objections, the prosecution was
permitted to cross-examine the appellant as to a previous occurrence when he had
been charged with burglary but was acquitted to s how that he knew it was no
offence to be found on private premises for an innocent purpose. He was convicted
and sentenced to 18 months imprisonment. The COA quashed the conviction holding
that cross-examination as to previous proceedings resulting in an a cquittal was
contrary to relevant statute. Statute completely prohibited any questioning advanced
to an accused person about a charge in respect of which he had been acquitted.

( Note the appellant had been acquitted of his previous charges yet trial cour t
convicted him based on the evidence of his previous [Link] appealed on the
grounds that the conviction was based on admission of inadmissible evidence of
previous offence. The appellate court quashed the conviction because matters
relating to charges which did not result in a conviction were outside the purview of
the sections in the statute, equivalent with Section 57 (1) (a) of KEA).

3. Integral Part of Defence Theory (The Inevitable Loss of Shield)

 If the accused person has personally or by hi s advocate asked questions of a

witness for the prosecution with the view to establishing his own good
character or has given evidence of his own good character then evidence

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 showing that the accused person has committed or been convicted of or
charged with any offence other than that with which he is then charged or
that he is of bad character will be admissible.
 See Section 57 (1) (b) and Section 56 (which is to the effect that in criminal
proceedings the fact that the person accused is of good character is
admissible).
 In

Maxwell vs. DPP [1935] AC 309, 32 LGR 335

A doctor was charged with manslaughter of a lady who died while procuring an illegal
abortion .In his defence he stated that he had lived a good moral and clean life with
the result that the pr osecution successfully applied to cross -examine the accused on
his past antecedents. The prosecution produced evidence which was admitted and
which showed that the doctor had earlier been acquitted of a charge of abortion. In
the words of the court: “If a prisoner by himself seeks to give evidence of his own
good character for the purposes of showing that he is unlikely to have committed the
offence with which he is charged, he may fairly be cross -examined on such issues in
order to prove the contrary”.

The question whether a line of cross -examination followed or evidence given by an

accused person of a certain character is an issue of fact and not one which the law
can decide. What is fair and proper can only be a function of logic and experience
and not legislative prescription.

 At common law and under the KEA if the accused does not put his own
character in issue evidence of his bad character (other than admission of
similar facts evidence) is inadmissible.
 Section 57 (1) (b) or (c) seem to amend the com mon law position such as not
to require the accused person to testify. The exception therefore should not
be taken as an attempt by the courts to deprive an accused person of a
chance to develop his line of defence or that protestation of his innocence be
taken as offers of evidence of good character.

Ali bin Hassan vs.R [1960] EA 171 (Z)

In this case the appellant was convicted of aiding a prisoner to escape and
obstructing a police officer in due execution prisoner of his duties. He was tried in the
course of cross-examination of a police constable he elicited the assertion: “ Yes I
know that you have recently come out of jail where you were sent for being found in
possession of a big quantity of date wine”. In his evidence the applicant said his work
was to sell date wine.(This was away of showing bias on the part of the police
constable).The prosecution witness agreed and thereupon the prosecution was
allowed to question the accused on his antecedents.

He was cross-examined as to his bad character and previous convictions. He was

convicted and on appeal, contended that the trial magistrate had wrongly admitted
such evidence. The appellate court held that the trial magistrate should not have
permitted the appellant to cross -examine the police constable i n the way he did.

From the time it became obvious that the appellant was bringing his bad character
into issue (and at which stage his bad character was inadmissible evidence),the trial

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magistrate should have stopped him and warned him of danger of pursui ng such line
of defence.

Further that the line of cross -examination adopted by the prosecutor was
indefensible and that there was a substantial miscarriage of justice on account of
failure by the trial magistrate to observe the rules of evidence.

 See Also

R vs. Winfield [1939] Vol 4 All ER164 (CCA)

Where the appellate court held that an accused person may be cross -examined on
any evidence adduced that puts his whole past record in issue

“Any accused person who wishes to put his previous good character in issue must be
prepared for any resulting questions as to his character and any previous
antecedents that prove the contrary”.

4. If The Nature Or Conduct Of The Defence Is Such As To Cast Or Make

Imputations On The Character Of The Complainant Or Of A Witness For The
Prosecution (Section 57 (1) (C) Of The KEA ).

 This exception renders admissible any evidence in proof of the accused

person’s bad character or of his previous convictions, when the conduct of the
defence is such as to make imputations on th e character of the complainant
or a witness for the prosecution.
 The question is always whether the accused person is attacking the evidence
of the prosecution witnesses outside the evidence given. This is a question of
fact wherein only knowledge and expe rience would come to the aid of the
court.
 See this Locus Classicus

Royston vs. R [1953] EA Vol 20 EACA

Where the appellant was charged among others on some nine counts including theft
by agent trying to obtain money by false pretences. In the course of the hearing and
cross-examination of certain prosecution witnesses, imputations were made involving
the character of certain prosecution witnesses. The trial court allowed the appellant
to be cross-examined as to his previous criminal history. He was convi cted. On
appeal the appellant argued that the evidence on character was improperly admitted.

It was held that there where imputations involving the character of prosecution
witnesses are an integral part of defence, without which the accused cannot put hi s
case before the court fairly and squarely the accused cannot be cross -examined on
his previous criminal history.

 See Also

Omondi and Another vs. R [1967] EA 802 (K)

The appellants were charged with robbery with violence. During cross-examination
the first appellant suggested that a police sergeant who had given evidence against
him was ‘deliberately committing perjury’. There after the court allowed the

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prosecution to put questions to the first appellant touching on past convictions. The
appellants were convicted and they appealed.

The first appellant’s main issue was whether question put to him about previous
convictions should have been permitted by the court. The prosecutor put the details
of the first appellant’s past convictions which questions we re allowed by the
Magistrate on the grounds that the first appellant had put his own character in issue
by accusing the sergeant of lying on oath.

The court held that challenging the evidence of a witness for the prosecution is not
“to conduct the defence so as to impugn the character of a witness”. That the line of
cross-examination which was adopted in this case was unfair to the first appellant
and the questions should have been allowed by the trial magistrate”.

The appellant’s appeal was allowed.

 There has to be a clear borderline between a reasonable line of defence and

the casting of imputations on a prosecution witness.
 See the dictum in

R vs. Jones [1923] 19 CAR

“A clear line is drawn between words which are an emphatic denial of the evidence
and words which attack the conduct or character of the witness. Applying this ratio
decidendi to the present case, it appears to this court that it comes within the line of
what is forbidden. It is one thing fir the appellant to deny that he had made the
confession, but it is another thing to say that the whole thing was deliberate and
elaborate concoction on the part of the Inspector that seems to be an attack on the
character of the witness”.

 The court may in its discretion direct that specific evidence on the ground of
this exception shall not be led if in the opinion of the court, the prejudicial
effect of such evidence upon the person accused will outweigh the damage
done by imputations on the character of the complainant or of witness for the
prosecution as to prevent a fair trial.
 The cardinal points upon which a court should exercise its discretion are the
trial judge must weigh the prejudicial effect of the questions against the
damage done by the attack on the prosecution witnesses by the defence and
must generally exercise his discretion, so as to secure a trial that is both fair
to the prosecution and defence.
 This was set out in the case of

Selvey vs. DPP [1970] AC 304 HL

The appellant was charged with [Link] denied the charge and declined to
answer the questions put to him. His defence was that the complainant was a male
prostitute who was soliciting the appellant. At trial the appellant while denying the
charge stated that the complainant had told him in his room on the afternoon in
question, that he had already on the same day allowed an act of buggery in his
person for money and would do the same again. He also suggested that indecent
photos found in his room were planted on him. The trial court allowed the appellant
to be cross-examined on previous convictions of indecency.

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The trial Judge ruled that in view of the attack on the complainant’s character the
jury ought to know the appellant’s previous records which include a number of
previous convictions. When it was put to him he kept quie t. The record was not
formally proved, but the appellant’s attitude was treated as admission. He was
convicted. On appeal he argued that when the defence necessarily involved
imputation on the character of the complainant the judge should have exercised hi s
discretion under section 1 (f) (ii) CEA 1898 in his favour by excluding previous
record.

Dismissing the appeal the House of Lords held that a judge had an unfettered
discretion under the Act to admit or exclude the previous record or character of an
accused and to allow or prohibit cross -examination on it, depending on the
circumstances of each case and the over -riding duty of the Judge to ensure a fair
trial; there is no general rule that the discretion should be exercised in favour of the
accused even where the nature of his defence necessarily involved his making an
imputation on a prosecution witness.

There was a real issue about the conduct of an important witness which the jury
exercised his discretion correctly to enable them to know the previous record of a
man on whose word the complainant’s character had been impugned. Further the
jury was entitled to treat the appellant’s attitude as tantamount to an admission of
the record although the same had not been proved.

 NB in Kenya this discretion is the subject of statutory intervention in the

proviso to section 57 (1) KEA.

5. Evidence Against a Co -Accused

 This exception arises where the accused has given evidence against any other
person charged with the same offence. See Section 57 (1) (d) of the KEA.
 The rationale here is that evidence tendered by a co -accused to show the
mis-conduct of the co-accused on behalf of the prosecution if relevant to the
defence of the accused is admissible whether or not it prejudices the co -
accused.
 Similarly where the co-accused has given evidence against the accused the
accused in seeking to defend himself should not be fettered in any way from
cross-examining the co-accused.
 An accused person who feels that he has wrongly framed by a co -accused can
challenge the admissibility of such evidence.
 See

Murdoch vs. Taylor [1964] 49 CAR 119

Murdoch who had a criminal record jointly tried with Lynch who was previously of
good character. Each was charged with receiving stolen property. Lynch gave
evidence implicating Murdo ch and Murdoch gave evidence alleging that it was Lynch
alone who was in control and possession of a box containing stolen cameras. The
Judge held that Lynch’s counsel was entitled to cross -examine Murdoch and indeed
allowed him to cross examine him as to his previous convictions. Murdoch was
convicted based on that evidence.

The Court of Appeal had to determine whether Murdoch had given evidence against a
co-accused. It was held that in determining whether an accused has given evidence

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against a co-accused the test to apply is objective not subjective. Secondly the court
held that evidence against the co -accused means evidence not necessarily given with
hostile intent, but which supports the prosecution case against a co -accused in a
material respect or wh ich undermines the defence of the co -accused.

Finally the court held that once the Judge has ruled that the witness has given
evidence against his co -accused, the co-accused has a right to cross -examine the
person who gave the evidence in order to show th at he has previous convictions or is
of bad character and where it is the co -prisoner who desires to exercise the right the
court has no discretion to disallow the cross -examination.

The court emphasized that a co -accused can only be cross -examined if his evidence
either materially improved the prosecution case or undermined the defence of the
co-accused person i.e It is the effect of the evidence upon the minds of the jury
which is material and not the state of mind of the person who gives it or his
motivation the test applied is objective and not subjective.

 According to [Link] the rationale here is that as far as an accused is

concerned if a co-accused gives evidence against him, he/she should be
viewed as being in very much the same position as a w itness for the
prosecution. Sound policy and common sense demands that an accused
should have a chance to challenge any testimony given by a co -accused.
 It is important to note that cross -examination under section 57 (1) (d) is
directed towards the charact er and the credit of the co -accused and not his
guilt i.e. the sub-paragraph confers upon an accused the right to discredit a
co-accused who assumes the role of a prosecution witness and give evidence
against him. The law allows the accused person to show by reference to the
bad criminal record of the co -accused that his testimony is not worthy of
belief.
 It is noteworthy that in criminal case, the character evidence rule applies in
the course of a proceeding that is prior to conviction. After conviction in a
criminal trial the prosecution is allowed to adduce evidence of previous
convictions of an accused person, in order to enable the court assess the
applicable sentence to be meted out upon an accused. See Section 57 (2) of
the KEA.


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