LESSON FIVE-MATTERS NOT REQUIRING PROOF

• ©MUTHOMI THIANKOLU
 Lecturer, University of Nairobi School of Law
 Advocate of the High Court of Kenya
 Partner, Muthomi & Karanja Advocates

• University of Nairobi School of Law (LLB II Class)

• Tuesday, May 27, 2025
• *NOTE: Students are strongly advised that this presentation
is not a substitute for attending lectures or reading the
cases and materials set out in the Course Outline.
LESSON FIVE-MATTERS NOT REQUIRING
PROOF
• SCOPE OF THE LESSON:
Introductory remarks (not everything in
controversy need be proved by way of
evidence).
Judicial Notice.
Presumptions.
Admissions.
Estoppel.
LESSON FIVE-MATTERS NOT REQUIRING PROOF
(INTRODUCTORY REMARKS)
 Generally, the courts will treat facts in issue or
relevant facts as established if they are proved by
evidence.
 In some instances, however, a party need not adduce
evidence to establish certain matters. The instances
include situations where—
 the law presumes a fact in issue in a party’s favour;
 the law permits the court to take judicial notice of a
fact in issue;
 the adverse party has admitted a fact in issue; and
 where the law estops or precludes the adverse party
from contesting the existence of a fact in issue.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(JUDICIAL NOTICE)
 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 __ Black’s Law Dictionary, 8th Edition.
 The rationales underlying judicial notice are that—
 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
 to require proof of such facts, 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:
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(JUDICIAL NOTICE)
 In 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:
– “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 is bound to recognise 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.”___p. 907.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(JUDICIAL NOTICE)
 “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
 “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
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(JUDICIAL NOTICE—THE EVIDENCE ACT)

 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:
1. 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;
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(JUDICIAL NOTICE—THE EVIDENCE ACT)

2. the general course of proceedings and

privileges of Parliament, but not the
transactions in their journals;
3. articles of War for the Armed Forces;
4. 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;
5. the accession to office, names, titles, functions
and signatures of public officers, if the fact of
their appointment is notified in the Gazette;
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(JUDICIAL NOTICE—THE EVIDENCE ACT)
6. the existence, title and national flag of every State and
Sovereign recognized by the Government;
7. natural and artificial divisions of time, and geographical
divisions of the world, and public holidays;
8. the extent of the territories comprised in the
Commonwealth;
9. the commencement, continuance and termination of
hostilities between Kenya and any other State or body of
persons;
10. 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;
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(JUDICIAL NOTICE—THE EVIDENCE ACT)

11.the rule of the road on land or at sea or in the

air;

12.the ordinary course of nature;

13.the meaning of English words;

14.all matters of general or local notoriety;

15.all other matters of which it is directed by any

written law to take judicial notice.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(JUDICIAL NOTICE—THE EVIDENCE ACT)
 NB:
1. Section 60 (2) permits the court, in respect of any
of the above matters, and any matters of public
history, literature, science or art, to resort for its
aid to appropriate books or documents of
reference.
2. Section 60 (3) empowers the court, whenever
called upon by any person to take judicial notice
of a fact, 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(JUDICIAL NOTICE—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. Every technology is rarely perfect and hence
susceptible to failure (Raila Odinga v IEBC & Others,
Presidential Election Petition No. 5 of 2013)
2. A division of Revenue Bill has significant financial
implications on the operations of county governments
(Speaker of the Senate & Another v Attorney General &
Others, Supreme Court Advisory Opinion Reference No.
2 of 2013).
3. a fortnight is too short a period for human gestation (R
v Luffe (1807) 8 East 193);
4. 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);
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(JUDICIAL NOTICE—MATTERS SO FAR NOTICED WITHOUT INQUIRY)

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 v White [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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(JUDICIAL NOTICE—MATTERS SO FAR NOTICED WITHOUT INQUIRY)

6. cats are kept for domestic purposes (Nye v

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 v
Edman [1970] 1 All ER 886); and
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(JUDICIAL NOTICE—MATTERS SO FAR NOTICED WITHOUT INQUIRY)

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 v 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);
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(JUDICIAL NOTICE—MATTERS NOTICED AFTER INQUIRY)
 NB:
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 professional matters) may be judicially
noticed after inquiry — See Adrian Kean, 4th Edition at
p. 606.
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, including certificates from
Ministers and officials, learned treatises, works of
reference and the oral statements of witnesses.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(JUDICIAL NOTICE—MATTERS NOTICED AFTER INQUIRY)
 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. See Adrian Kean, 4th Edition at p. 606.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(JUDICIAL NOTICE—ILLUSTRATIVE CASES)
 In 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 period.
 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 labour.
 The husband contended that the child was not his,
and petitioned for divorce on the ground of adultery.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(JUDICIAL NOTICE—ILLUSTRATIVE CASES)

 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 3.

 The wife denied the charge of adultery.

 The first trial judge held that the charge of

adultery was not proved (by evidence).
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(JUDICIAL NOTICE—ILLUSTRATIVE CASES)
 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)
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(JUDICIAL NOTICE—ILLUSTRATIVE CASES)

 “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 been
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.”
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(JUDICIAL NOTICE—ILLUSTRATIVE CASES)
 In 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.”
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(JUDICIAL NOTICE—ILLUSTRATIVE CASES)
 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 purpose (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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(JUDICIAL NOTICE—ILLUSTRATIVE CASES)
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.”
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(JUDICIAL NOTICE—ILLUSTRATIVE CASES)
• 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.
• In Earnest Kinyanjui Kimani v Muiru Gikanga &
Another [1965] EA 735 it was held that:
– “where African customary law is neither
notorious nor documented it must be established
[by expert evidence] for the courts guidance by
the party intending to rely on it.”
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(JUDICIAL NOTICE—ILLUSTRATIVE CASES)
• 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:
– “Although s. 60 of the Evidence Act (Cap. 80) would
enable the court to take judicial notice of specific
customary law, this requires much care, as the
details of such customary law may not be clear, or it
may be in a process of fundamental adaptation and
change which necessitates that any claim that a
custom is operative, requires proof.” See [2006]
Esther Wanjiku Njau & Another v Mary Wahito eKLR.
• NB: the substantive issue in Kimani v Gikanga was
whether a Muhoi can acquire title to land by adverse
possession.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(JUDICIAL NOTICE—ILLUSTRATIVE CASES)

• In 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(JUDICIAL NOTICE—ILLUSTRATIVE CASES)

• 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.
• There was no evidence that 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(JUDICIAL NOTICE—ILLUSTRATIVE CASES)
• Held:
1. The court was entitled to take judicial notice of
the fact that 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 separate 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(JUDICIAL NOTICE—ILLUSTRATIVE CASES)
• In 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 Secretary 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 notice
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].
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS)
 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 policy 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 empowered 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS)
Depending on the circumstances of the case,
the inferences/conclusions that the courts
make by way of presumptions could be in
the affirmative (i.e. on the “yes”) or on the
negative (i.e. on the “no”).
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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS)

 There are three main categories of

presumptions, namely—

1. rebuttable presumptions of law;

2. irebuttable presumptions of law; and

3. Presumptions of fact.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-REBUTTABLE PRESUMPTIONS OF LAW)
 Where a rebuttable presumption of law applies, on the
proof or admission of a fact, referred to as a primary
fact, and in the absence of further evidence, another
fact, referred to as a presumed fact, must be presumed.
 The party relying on the presumption bears the
burden of establishing the basic fact. Once he does
this, his adversary bears the legal burden of disproving
the presumed fact.
 Examples of rebuttable presumptions of law include:
 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
 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-IREBUTTABLE PRESUMPTIONS OF LAW)
 Irrebuttable presumptions of law are conclusive
inferences that must be made irrespective of how
much evidence exists to the contrary. They are
usually rules of substantive law expressed as
presumptions.
 Once the basic fact pertaining to the presumption
is established, the conclusion must be drawn.
 Irrebuttable presumptions normally arise from
statutory provisions, and are general expressions
of public policy pronouncements on the matters
concerned.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-IREBUTTABLE PRESUMPTIONS OF LAW)
 Examples of irrebuttable presumptions of law
include:
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)
• * what a bout a female person below the age
of 12?
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-PRESUMPTIONS OF FACT)
 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).
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-PRESUMPTIONS OF FACT)
 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 stolen 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-PRESUMPTIONS OF FACT)
 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-PRESUMPTIONS OF MARRIAGE)
 There are three main presumptions relating to
marriage, namely-
1. the presumption of formal validity (which goes to
the marriage ceremony and the procedures
preceding it);
2. the presumption of essential validity (which goes
to the validity of the marriage contract as a matter
of law); and
3. the presumption of marriage arising from
cohabitation.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-PRESUMPTIONS OF MARRIAGE)
The formal validity of a marriage depends
on upon the law of the place where the
marriage is celebrated (lex loci
celebrationis). 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).
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-PRESUMPTIONS OF MARRIAGE)
The presumption of formal validity 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 and
Maherdervan v Maherdavan [1964] P 233,
discussed in the ensuing parts of this
presentation).
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-PRESUMPTIONS OF MARRIAGE)
• In Piers v Piers [1849] 2 HL 331, a man and a woman
got married in a private dwelling without obtaining a
special licence 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).
• 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-PRESUMPTIONS 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, celebrated
between them, by a regularly ordained clergyman, in a
private house, as if by special licence, 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 licence 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 licence for
such marriage.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-PRESUMPTIONS OF MARRIAGE)
• In Maherdervan v 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-PRESUMPTIONS OF MARRIAGE)
• 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.
• 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.
• 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-PRESUMPTIONS OF MARRIAGE)
 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.
 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 (that is the
legal validity of the marriage contract) will be
presumed in the absence of sufficient evidence to
the contrary.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-PRESUMPTIONS OF MARRIAGE)
 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.
• In Aronegary v Sembecutty [1881] 6 A.C. 364, the
plaintiffs sued the defendants to recover a
portion of the property of a certain Mr.
Patternier, who had since died.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-PRESUMPTIONS OF MARRIAGE)
• The 2nd Plaintiff had voluntarily gone through some
form of a marriage ceremony with the deceased with
the intention to get married, and proceeded to
cohabit with him as man and wife. 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 2nd
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).
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-PRESUMPTIONS OF MARRIAGE)
• The Plaintiffs appealed to the Privy Council (of the
House of Lords).
• 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, that 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-PRESUMPTIONS OF MARRIAGE)
 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
Kean, at p. 591
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-PRESUMPTION OF LEGITIMACY)
 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 evidence to the contrary, that the
child is legitimate.
 The presumption may be rebutted by evidence showing
(inter alia) that—
 the husband and the wife did not have sexual
intercourse as a result of which the child was born;
 the husband was impotent;
 Use of reliable contraceptives;
 Blood tests (see B. (B. R.) v. B. (J.) & Another [1968] 2 All
ER 1023 CA)
 Genetic fingerprint tests;
 The wife has cohabited with another man for an
appropriate period of time before the birth of the child
(see Cope v Cope)
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-PRESUMPTION OF LEGITIMACY)
 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. A good
illustration of this rule is the case of Gordon v Gordon &
Another [1903] P 141, where 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 shewn to have committed adultery with
any number of men”).
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-PRESUMPTION OF LEGITIMACY)
 In 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 1935.
 The maintenance order did not contain a
provision 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-PRESUMPTION OF LEGITIMACY)

 Held: Proof of the maintenance order was not

sufficient to rebut the legal presumption of access of

the husband and of the legitimacy of the child born

during the respondent's marriage.

 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-PRESUMPTION OF LEGITIMACY)
 In 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;
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-PRESUMPTION OF LEGITIMACY)
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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-PRESUMPTION OF LEGITIMACY)
3. 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-PRESUMPTION OF DEATH)
 Where there is no acceptable affirmative evidence
that a person was alive at some time during a
continuous period of seven years or more, on the
proof or admission of the basic facts that—
 there are persons who would be likely to have
heard of him over that period;
 those persons have not heard of him; and
 all due enquiries have been made appropriate to
the circumstances,
that person will be presumed to have died at some
time within that period.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-PRESUMPTION OF DEATH)
 In 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 1909.
 The 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 whether the presumption of
death applied to the first wife. If the presumption
of death applied the second marriage (of 1933)
would have been valid.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-PRESUMPTION OF DEATH)

 It was not possible to trace anyone who, since

1917, would naturally have heard of the first

wife, as she was an orphan with no known

parents, brothers, sisters or other relatives.

 There was equally no evidence that her death

had been registered anywhere.

 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-PRESUMPTION OF DEATH)
• Held:
1. the court could not accept the 1933 marriage
certificate as evidence of the validity of the
marriage and was put on inquiry as to the
possibility of the 1909 wife being alive in
1933.
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 the present case.
4. The correct inference being that she was alive
in 1933, decrees of nullity must be granted.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-PRESUMPTION OF DEATH)
• In 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. Mr.
Nutt’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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-PRESUMPTION OF DEATH)
• 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-PRESUMPTION OF DEATH)
• 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 three
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 was entirely
removed by the direct evidence that every relative had
heard that he was alive."
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-PRESUMPTION OF DEATH)
• Held: The presumption of death did not
apply because the basic facts had not been
established.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-RES IPSA LOQUITUR)
• 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-RES IPSA LOQUITUR)
• Under the doctrine res ipsa loquitur, therefore,
a plaintiff establishes a prima facie case of
negligence where-
– 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
– 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
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-SELECTED PROVISIONS OF CAP. 80)
• Section 4 of the Evidence Act states the
general rules with regard to presumptions:
– “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 (rebuttable presumptions of fact).
– (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.”
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-SELECTED PROVISIONS OF CAP. 80)
 Beside the general rule(s) at section 4, the
Evidence Act empowers the court to presume
many matters. Examples include:
1. Presumptions as to genuineness of signatures
in certain documents and whether the person
signing held the relevant office or had the
relevant qualifications (section 77 (2) of the
Evidence Act).
2. Presumptions as to the genuineness of
documents purporting to be copies of a
judgment or judicial record of any country not
forming part of the Commonwealth (s. 92 of the
Evidence Act).
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-SELECTED PROVISIONS OF CAP. 80)
3. Presumption that books, maps or charts
containing information on matters of
public or general interest have been
written and published by the person and at
the time and place by whom or at which
they purport to have been written or
published (s. 93 of the Evidence Act).
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-SELECTED PROVISIONS OF CAP. 80)
4. Presumptions as to existence of any fact which the court
thinks likely to have happened, regard being had to the
common course of natural events, human conduct and
public and private business, in their relation to the facts of
the particular case (s. 119 of the Evidence Act).
– In 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
there was no barrier/fence between the machine and
employees.
– 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-SELECTED PROVISIONS OF CAP. 80)
5. Conclusive presumption as to paternity and
legitimacy where one is born in lawful
wedlock or within 280 days following the
dissolution of a valid marriage between his
mother and any man (s. 118 of the Evidence
Act.)
– 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(PRESUMPTIONS-SELECTED PROVISIONS OF CAP. 80)

6. Rebuttable presumption as to death where

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 (s. 118A
of the Evidence Act).
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ADMISSIONS)
 An admission is a statement by a party that is adverse
to his case. There are two broad categories of
admissions, namely—
 Informal admissions, i.e. admissions made before
any proceedings are anticipated (see sections 17-
24 of the Evidence Act); and
 Formal admissions, i.e. admissions made during
and in the context of specific legal proceedings.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ADMISSIONS)
 A fact may be formally admitted in the
following ways:
 Express admission in the pleadings;
 By default of pleading;
 By failure to traverse it in a pleading;
 By letter written by a legal advisor prior to trial;
 In answer to a specific notice to admit under Order
12 of the Civil Procedure Rules; or
 By affidavit in answer to an interrogatory.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ADMISSIONS)
 NB:
1. A party who fails formally to admit facts about
which there is no real 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.
2. In criminal proceedings, formal admissions
take the form of a plea of guilty while
informal admissions fall under what are
known as confessions, governed by sections
25-32 of the Evidence Act.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ADMISSIONS—WITHOUT PREJUDICE ADMISSIONS)
3. 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.
4. 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ADMISSIONS-CIVIL PROCEEDINGS)
 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.”
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ADMISSIONS-CIVIL PROCEEDINGS)
 As is evident from the foregoing, 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).
 Under the Civil Procedure Rules, any allegation of
fact by the adverse side that is not specifically
traversed is deemed to be admitted.
 Order 2 Rule 11 of the Civil Procedure Rules 2010
provides:
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ADMISSIONS-CIVIL PROCEEDINGS)
• “11.(1) Subject to subrule (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.”
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ADMISSIONS-CIVIL PROCEEDINGS)
• “(3) Subject to subrule (4), every allegation of fact
made in a plaint or counterclaim which the party
on whom it is served does not intend to admit shall
be specifically traversed by him in his defence or
defence 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.”
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ADMISSIONS-CIVIL PROCEEDINGS)
• Order 13 of the Civil Procedure Rules, 2010 (titled
“Admissions”) provides as follows:
• “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.
• 2. Any party may at any stage of a suit, where
admission of facts has been made, either on the
pleadings or otherwise, apply to the court 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.”
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ADMISSIONS-CRIMINAL PROCEEDINGS)
• In criminal cases, informal admissions 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 alone or in conjunction with
other facts proved, an inference may reasonably
be drawn that the person making it has
committed an offence.”
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ADMISSIONS-CRIMINAL PROCEEDINGS)
• 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, inhuman or degrading 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:
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ADMISSIONS-CRIMINAL PROCEEDINGS)
• “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.”
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ADMISSIONS-CRIMINAL PROCEEDINGS)
• Under section 26 of the Evidence, confessions
induced by inducements, threats or promises are
inadmissible.
• 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL)
 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 (Adrian Kean, 4th Edition page
543).
 In other words, it is the policy of the law that people
should say what they mean and mean what they say.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL)
 Effectively, therefore, estoppel operates to prevent
a party to litigation from asserting or denying
certain facts.
 There are three main types of estoppel, namely—
1. Estoppel by record;
2. Estoppel by deed; and
3. Estoppel by conduct.
• The rules on estoppel are to be found at sections
120-123 of the Evidence Act.
• Debate abounds, and authorities differ, however,
on whether estoppel is a rule of evidence or a
rule of substantive law.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL)

 Judges who hold the view that estoppel is a rule of

evidence will not permit an estoppel to be

pleaded to defeat the express provisions of a

statute.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL)
• 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
appellants 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL)
• When sued for the nine tenths of the
consumption, the respondent claimed that the
power company was estopped from making the
claim.
• 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL)
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 defeated or avoided by a mere mistake in
the computation of accounts.
3. The relevant sections of the Act were enacted 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL)
• In Mills v Cooper [1967] 2 Q.B. 459, Criminal
proceedings were preferred 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL)
• 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.
• 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL)
 NB: As a general rule, an estoppel must be pleaded to be
taken advantage of (Adrian Kean, p. 543).
 Order 2 Rule 4 of the Civil Procedure Rules, 2010 provides:
– “4. (1) A party shall in any pleading subsequent to a plaint
plead specifically any matter, for example performance,
release, payment, fraud, 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.”
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED PROVISIONS OF CAP. 80)
 Section 120 of the Evidence Act (titled “general
estoppel”) sets the general rule as to estoppel in the
following terms:
 “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.”
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED PROVISIONS OF CAP. 80)
 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 the belief, to deny the
truth of that thing.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED PROVISIONS OF CAP. 80)
 Section 121 of the Evidence Act estops tenants and licensees
from denying the title or possession of the landlord and licensor
respectively:
 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.”
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED PROVISIONS OF CAP. 80)
 Section 122 estops persons who have accepted a
bill of exchange from denying the authority of the
drawer to draw the bill:
– “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”
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED PROVISIONS OF CAP. 80)
 Section 123 of the Evidence Act bars agents, bailees
and licensees from denying the right of the principal,
bailor and licensor respectively:
 “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
goods to some person, who had a right to them as
against his bailor, 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.”
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-ESTOPPEL BY RECORD)
 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—
1. it is in the public interest there should be an end
to litigation; and
2. no one should be harassed/vexed twice for the
same cause.
 Under the doctrine of estoppel by record, a final
judgment of a court of competent jurisdiction is
conclusive; such a judgment 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-ESTOPPEL BY RECORD)
 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-
 Judgments in rem, i.e. judgments which adjudicate
on the legal status of a person or a thing (e.g.
divorce, probate and bankruptcy proceedings. See
section 44 of Evidence Act); and
 Judgments in personam, i.e. judgments which do
not affect the status of a person or thing (e.g.
judgments in contract or tort).
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-ESTOPPEL BY RECORD)
 A Judgment in rem is effective against all persons/the
whole world. A good illustration of this is the case of
Allen v Dundas.
 In Allen v Dandas (1789) Term Rep 125, the
defendant was indebted to P.
 On 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 plaintiff, upon vacating the grant of probate to X,
sought to recover from the defendant the amount he
had owed P while he was alive.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-ESTOPPEL BY RECORD)
 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.
 Both judgments in personam and in rem give rise to two
kinds of estoppel, that is—
 Cause of action estoppel ; and
 Issue estoppel.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-ESTOPPEL BY RECORD)
 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-ESTOPPEL BY RECORD)

The above rule is illustrated by the

following dictum by Wigram VC in

Henderson v Henderson (1843) 3 Hare 100

at 114:
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-ESTOPPEL BY RECORD)
 “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,
inadvertence 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 properly belonged
to the subject of litigation, and which the parties,
exercising reasonable diligence, might have brought
forward at the time.”
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-ESTOPPEL BY RECORD)
• The rule in the above dictum is also to be found at Order 3
Rule 4 of the Civil Procedure Rules, 2010 which provides
as follows:
– “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.”
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-ESTOPPEL BY RECORD)
 Section 7 of the Civil Procedure Act provides:
– “7. No court shall try any suit or issue in which the
matter directly 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.”
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-ESTOPPEL BY RECORD)
• NB:
1. 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.”
2. In criminal cases, cause of action estoppel will ordinarily be
pleaded by the plea of autre fois acquit or autre fois convict.
3. 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-ESTOPPEL BY DEED)
 A party who has executed a deed (a contract
under seal) and those claiming through him are
estopped from denying the truth of the facts
stated in the deed or its recitals.
 In Bowman v Taylor (1834) 4 LIKE 58, the plaintiff
had granted to the defendant a licence to use
looms by a deed which recited that the plaintiff
and invented improvements and obtained letters
patent for them. The plaintiff sued the defendant
for breach of a covenant to pay royalties.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-ESTOPPEL BY DEED)
 Held: The defendants were estopped from
denying that the plaintiff was the inventor.
 NB:
Estoppel by deed can only be raised in
actions brought on the deed.
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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-ESTOPPEL BY CONDUCT)
 Where a person has by his word or conduct wilfully
caused another to believe 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
 estoppel by representation;
 and promissory estoppel.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-ESTOPPEL BY CONDUCT)
 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 another 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 alter his position, the
first person is subsequently estopped from denying, as against
the other person, that the facts were as represented.
 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-ESTOPPEL BY CONDUCT)
 Promissory estoppel differs from estoppel by representation
in the following ways:
1. Promissory estoppel may be founded on a representation 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 is not permanent in effect but only
serves to suspend and not to extinguish rights by giving the
representee a reasonable opportunity of resuming his
original position (see the High Trees case, discussed later in
this presentation).
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED ILLUSTRATIVE CASES)
 In 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED ILLUSTRATIVE CASES)
 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED ILLUSTRATIVE CASES)
 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 from 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED ILLUSTRATIVE CASES)
• In 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 house was independent
of and not conterminous the contract of
employment.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED ILLUSTRATIVE CASES)
• 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
other does 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 the
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 occasion
arose.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED ILLUSTRATIVE CASES)
• In Gatune v 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED ILLUSTRATIVE CASES)
• Held (inter alia):

1. The Attorney-General occupies a crucial role in

litigation and protracted 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 prejudiced by the delay.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED ILLUSTRATIVE CASES)
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 provisions of theLimitation of Actions Act.
– *Is estoppel being upheld against a statute in this
case?
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED ILLUSTRATIVE CASES)
• In 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 purchase
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 2nd
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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED ILLUSTRATIVE CASES)
• 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 2nd
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 1st
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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED ILLUSTRATIVE CASES)
• In Central London Property Trust Ltd v High Trees
House Ltd [1947] K.B. 130, the plaintiff company
by a lease under seal dated 24th September 1937
let to the defendant company a block of flats for a
term of 99 years from September 29, 1937 at a
ground rent of 2,500/ a year.
• In the early part of 1940, owing to war conditions
then prevailing, only a few of the flats in the block
were let to tenants and it became apparent that
the defendants would be unable to pay the rent
reserved by the lease out of the rents of the flats.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED ILLUSTRATIVE CASES)
• Discussions took place between the directors of the
two companies, which were closely connected, and, as
a result, on January 3, 1940, a letter was written by
the plaintiffs to the defendants confirming that the
ground rent of the premises would be reduced from
2,500/ to 1,250/ as from the beginning of the term.
• The defendants thereafter paid the reduced rent.
• By the beginning of 1945 all the flats were let but the
defendants continued to pay only the reduced rent.
• In September, 1945, the plaintiffs wrote to the
defendants claiming that rent was payable at the rate
of 2,500/ a year.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED ILLUSTRATIVE CASES)
• The defendants pleaded that the agreement for the
reduction of the ground rent operated during the whole
term of the lease and, as alternative, that the plaintiffs
were estopped from demanding rent at the higher rate or
had waived their right to do so.
• Held:
1. Where parties enter into an arrangement which is
intended to create legal relations between them and in
pursuance of such arrangement one party makes a
promise to the other which he knows will be acted on
and which is in fact acted on by the promisee, the
court will treat the promise as binding on the
promisor to the extent that it will not allow him to act
inconsistently with it even although the promise may
not be supported by consideration in the strict sense
and the effect of the arrangement made is to vary the
terms of a contract under seal by one of less value.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED ILLUSTRATIVE CASES)
2. The arrangement made between the plaintiffs
and the defendants in January, 1940, was one
which fell within the above category and,
accordingly, the agreement for the reduction of
the ground rent was binding on the plaintiff
company, but it only remained operative so long
as the conditions giving rise to it continued to
exist and that on their ceasing to do so in 1945
the plaintiffs were entitled to recover the ground
rent claimed at the 1946 rate reserved by the
lease.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED ILLUSTRATIVE CASES)
 In Combe v Combe [1951] K.B. 215 CA, a wife
petitioned for divorce and obtained a decree nisi.
 Before the decree could be made absolute, the
husband promised to pay her some 100⍳ a year
free of income tax.
 The wife promised, without 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED ILLUSTRATIVE CASES)
 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 him,
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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED ILLUSTRATIVE CASES)
2. The principle stated in Central London Property
Trust 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED ILLUSTRATIVE CASES)
• In 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.
• During the currency of the sole account the plaintiff
became aware of the forgeries, but, being persuaded
by his wife to say nothing about them, he kept silence
for eight months.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED ILLUSTRATIVE CASES)
• 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 account 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED ILLUSTRATIVE CASES)
• In 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED ILLUSTRATIVE CASES)
• 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:—
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED ILLUSTRATIVE CASES)
• Held:
1. the plaintiff had by implication made known to the defen-
dants that she required 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 not 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 transport, since the defendants had failed to
prove the three requirements necessary to establish
estoppel, namely-
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED ILLUSTRATIVE CASES)
– (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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED ILLUSTRATIVE CASES)
• In 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 Tortfeasors) Act, 1935.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED ILLUSTRATIVE CASES)
• 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 determined 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?
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED ILLUSTRATIVE CASES)
• In 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED ILLUSTRATIVE CASES)
• In August 1970, the Plaintiffs referred a dispute
concerning a ceiling defect in the main bedroom to
arbitration.
• In June 1972, a surveyor 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-SELECTED ILLUSTRATIVE CASES)
• 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:
1. in arbitration proceedings, the matters which determined the
issues to be decided by the arbitrator 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.
2. by providing in the contract for disputes to be settled by
arbitration, 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 on a subsequent occasion of a
defect which was not covered by a first arbitration
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-MATTERS TO NOTE)
 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.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-MATTERS TO NOTE)
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 futuro.
 LESSON FIVE-MATTERS NOT REQUIRING PROOF
(ESTOPPEL-MATTERS TO NOTE)
4. It 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.
5. 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 unintentionally, 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.