RELEVANCE & ADMISSIBILITY

RES GESTAE

Res Gestae, it has been said, is a phrase adopted to provide a respectable legal cloak
for a variety of cases to which no formula of precision can be applied. The words
themselves simply mean a transaction. Under the inclusionary common law doctrine of
Res Gestae, a fact or opinion which is so closely associated in time, place and
circumstances with some act or event which is in issue that it can be said to form
a part of the same transaction as the act or event in issue, is itself admissible in
evidence. The justification given for the reception of such evidence is the light that it
sheds upon the act or event in issue: in its absence, the transaction in question may not
be fully or truly understood and may even appear to be meaningless, inexplicable and
unintelligible. The importance of the doctrine, for present purposes, is its provision for
the admissibility of statements relating to the performance, occurrence or existence of
some act, event or state of affairs which is in issue. Such statements may be received
by way of exception to the hearsay rule.

Res Gestae forms part of hearsay.

R V. BEDINGFIELD [1879] Vol. 14 Cox C.C. 341

A girl was living with her boyfriend until the relationship turned sour. The boyfriend
allegedly cut her throat. She managed to run out even with a cut throat and managed to
say see what Harry (Bedingfield) has done to me. In court the question arose as to
whether this statement could be admitted in evidence. Lord Justice Cockburn was
emphatic that it could not be admitted. He said that it was not part of the transaction,
that it was said after the transaction was all over. (The transaction being the cutting of
the throat) The Judge held that it was not admissible as part of the Res Gestae since it
was something stated by her after it was all over. The girl said after it was all over.

Under S. 33 of Law of Evidence Act, this would have been admitted.

33. Statements, written or oral, of admissible facts made by a person who is dead, or who
cannot be found, or who has become incapable of giving evidence or whose attendance
cannot be procured, or whose attendance cannot be procured without an amount of
delay or expense which in the circumstances of the case appears to the court
unreasonable, are themselves admissible in the following cases

(a) When the statement is made by a person as to the cause of his death, or as to any of
the circumstances of the transaction which resulted in his death, in cases in which the
cause of that persons death comes into question and such statements are admissible
whether the person who made them was or was not, at the time when they were made,
under expectation of death, and whatever may be the nature of the proceeding in which
the cause of his death comes in question;

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R V. Premji Kurji [1940] E.A.C.A 58

In this case the accused was charged with murder, the deceased had been killed with a
dagger and there was evidence that the accused had been found standing over the
deceased body with a dagger dripping with blood. The prosecution adduced evidence
that a few minutes before, the accused had been seen assaulting the deceaseds
brother with a dagger and he had uttered words to the effect that I have finished with
you, I am now going to deal with your brother. The question was whether this
statement was admissible as forming part of the transaction. Is that part of the same
transaction as the murder. Were the words uttered part of the same transaction. It was
held that they were part of the same transaction because when two acts of an accused
person are so interwoven as to form part of the same transaction, it is not proper to shut
out evidence of one of the acts even though it may involve introducing evidence of the
commission of another offence.

R V. RAMADHANI ISMAEL [1950] ZLR 100

A Girl was living in the village with her parents and she was allegedly raped by the
accused. After the rape incident, she unlocked the door and ran over to her parents
house, a few paces away from the accuseds house. She got hold of her fathers hand
and took him to the accused house. She pointed to the accused person and said
daddy, this is the Bwana and the question was whether this statement was part of the
transaction. The transaction here is rape, which is already finished by the time she
goes to call her daddy. Is it admissible? The court held that it was not part of the
transaction. The transaction was already over.

Different courts have different conception of what forms part of the transaction. The
court in this rape case adopted a conservative view of what formed the transaction.

TEPPER V. R [1952] A.C 480

In that case there was a fire some place and a house was burning and the lady was
heard to ask somebody who looked like the accused some minutes later your house is
burning and you are running away the question was whether this statement was part of
the transaction as the fact in issue the fact in issue being Arson. It was held to be part
of the transaction.

R V. CHRISTIE 1914 AC 545

The accused was convicted of indecent assault on a boy. The boy gave un-sworn
evidence in which he described the assault and identified the accused but made no
reference to any previous identification. The House of Lords, by a majority of five to
two, held that both the boys mother and a constable had been properly allowed to give
evidence that shortly after the alleged act they saw the boy approach the accused,

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 touch his sleeve and identify him by saying, That is the man. Evidence of the previous
identification was admissible as evidence of the witnesss consistency, to show that the
witness was able to identify at the time and to exclude the idea that the identification of
the prisoner in the dock was an afterthought or mistake.

THOMPSON V. TREVANION 1693 Skin L.R. 402

This case had to do with statements made by participants in or observers of events.

Thus in this case it was decided that what a wife said immediately upon the hurt was
received and before she had time to devise or contrive anything for her own advantage
was held to be admissible in evidence.

ALL THE ABOVE CASES HAVE SOMETHING TO DO WITH WHETHER THE

STATEMENT IS PART OF THE FACT OF IN ISSUE.

R V. RATTEN [1972] A.C 378

Ratten was charged with the murder of his wife. He offered the defence of accident. He
said that he was cleaning his gun and it accidentally went off injuring his spouse. There
was nobody else at the scene of crime or at the point where this incident occurred and
the prosecution sought to tender evidence of a girl who worked with the telephone
exchange who said that a call had had been made from the accused house at about the
time of the murder. The girl said that the voice on the phone betrayed emotion, she
was begging to have the police called over and before the operator could link the
woman with the police the phone hang up on the woman side. The question was, was
the statement by the telephone operator admissible as part of the transaction? Did it
happen contemporaneously with the facts in issue? The court held that the evidence of
the telephone operator was admissible and in explaining why the Privy Council
explained that the important thing was not whether the words were part of the
transaction. The important thing was whether the words were uttered during the
drama. The court also said that the particular evidence of the operator contradicted the
evidence which was to the effect that the only telephone call outside from his house
during the murder was only a call for an ambulance.

Section 7

7. Facts which are the occasion, cause or effect, immediate or otherwise, of

relevant facts or facts in issue, or which constitute the state of things under
which they happened or which afforded an opportunity for their occurrence or
transaction are relevant.

They will be those facts which will afford the opportunity to the facts in issue. The
occasion may not be a fact in issue but it helps us understand the fact in issue or
relevant facts.

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CAUSE/EFFECT

John Makindi V. R EALR 327

The accused in this case was charged with the murder of a boy over whom he stood in
loco parentis (foster father) to. In his defence the accused averred that the deceased
was epileptic trying to explain away the injuries on the boy and how they may have
occurred. Medical evidence showed that the boy had died due to severe bleeding in the
head and a doctor testified that there were blood clots in the boys head which had
opened causing a lot of blood to flow from the deceaseds head and therefore
occasioning his death. The prosecution tendered evidence that the accused had
previously beaten up this boy and had previously been convicted for beating up this boy
and he had threatened the boy with further beatings on account of having been
convicted. The question was whether evidence of previous beating was admissible.
The court held yes that the evidence of previous beatings was admissible in the
circumstances? Could the court admit the evidence of past beatings? The court held
that the beatings of earlier beatings was admissible because having taken the evidence
of blood clots at the head, it was important to know the cause of the blood clots and the
evidence of the previous beatings was admissible as a fact leading to the bleeding and
ultimate death.

The cause of things or relevant facts or facts in issue will be admitted to explain the
cause of death. E.g. the opening of the blood clots and loss of lots of blood. The
previous beatings showed us the cause and was thus admissible, so the cause of things
and the cause of relevant issues will be admitted. They explain the cause of death like
in this case.

STATE OF AFFAIRS

R V RABIN & ANOTHER [1947] Vol. 14 E.A.C.A 80

In this case there was a charge of corruption and the prosecution tried to lead evidence
of a previous shady dealing in which the two persons whose conduct was in issue were
involved. The question was whether the evidence was relevant. The court held that the
evidence of the previous shady dealings was relevant because it gave the state of
things under which the bribe was given. It explained the state of things in which the
transaction occurred. The transaction which is the fact in issue.

OPPORTUNITY

R V Premji Kurji R.V. (1940) 7 E.A.C.A. 40

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 The case shows that the accused had opportunity to commit the murder.
This case discusses Res Gestae. The deceased had been killed with a dagger, and
evidence was admitted at the trial of the fact that just prior to the death of the deceased
the accused had assaulted the deceaseds brother with a dagger and had uttered
threats against the deceased. It was held that the accused had an opportunity, he had
used the dagger only a few minutes before he used it to commit the murder.

Section 8
8. Any fact is relevant which shows or constitutes a motive or preparation for any fact in
issue or relevant fact.

Facts which relate to motive, preparation or conduct of any fact in issue will be
relevant.

Motive is that which makes a person do a particular thing or act in a particular way. For
instance a person who is accused of rape may be motivated by lust or desire. A person
who says they killed in self defence will be motivated by fear. Motive is what influences
a persons acts or conduct. For all voluntary acts, there will be a motivation and you
need to look at a persons conduct to explain away the motivation. Similarly any fact
that would constitute preparation for a fact in issue is also going to be admissible. The
planning or arranging means and measures necessary to commit an act or to do
something. If it is a crime, it will be the type of measures one takes to help achieve the
committing of that that crime. For example if you intend to steal there will be
surveillance involved. Hiring implements required to commit the crime.

Similarly any fact which shows the conduct of any party to the proceedings is relevant.

Section 8 (4)

8. (4) The word conduct in this section does not include statements, unless those
statements accompany and explain acts other than statements.

Statements are expressly excluded. You are not talking about statements but
preparation. Under section 8 you are dealing with things that people do and not things
that people do. If you want to bring in a statement, it would have to be associated with
an act.

Section 9
9. Facts necessary to explain or introduce a fact in issue or relevant fact, or which
support or rebut an inference suggested by such a fact, or which establish the identity of
any thing or person whose identity is relevant, or fix the time or place at which any fact
in issue or relevant fact happened, or which show the relation of parties by whom any
such fact was transacted, are relevant insofar as they are necessary for that purpose.

Facts, which explain or introduce facts in issue, are relevant.

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 It is only phraseology of Section 9 that differs from factors that have been explained in
Section 6,7 and 8.

10. Where there is reasonable ground to believe that two or more persons have conspired
together to commit an offence or an actionable wrong, anything said, done or written by
any one of such persons in reference to their common intention, after the time when
such intention was first entertained by any one of them, is a relevant fact as against
each of the persons believed to be so conspiring, as well for the purpose of proving the
existence of the conspiracy as for the purpose of showing that any such person was a
party to it.
The legislator is said to have been acting Ex Abundante Cautella. Out of an abundance
of caution. This section deals with conspiracies. If there are reasonable grounds to
believe that there is a conspiracy, then whatever is said or done by any person in
reference to their common intention, after the time such intention was formed, is a
relevant fact.
What does a conspiracy entail? It is where people sit and agree and form a common
intention to do something. Common intention is the defining factor of the conspiracy.

It is relevant to prove

1. That it is a conspiracy; and

2. To prove that persons were parties to the conspiracy.

R V. KANJI 1949 VOL 15 EALR 116

It is stated with reference to S. 10 that a person who joins a conspiracy in law is

responsible in law for all the acts of his fellow conspirators done in furtherance of the
conspiracy whether done before during or after his participation. It is only after common
intention is established.

STANLEY MUSINGA ET AL V. R [1951] 18 EACAR 211

Here the court said that A person who joins a conspiracy is responsible in law for all the
acts of his fellow-conspirators done in furtherance of the conspiracy, whether done
before, during or after his participation.

The time when, by act or declaration, reference is made to the common intention is not
important so long as it is after that time when the intention is first entertained by one of
the conspirators.

R V. MULJI JAMNADAS ETAL 1946 13 EACA 147.

The defendants were charged with a conspiracy to effect a lawful purpose by unlawful
means, in that they toured the neighbourhood in a lorry to recruit labour for the

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 Companys Sugar Works, and that acting together they did on a number of occasions
compel persons by the use of force and threats of force to get into the lorry and submit
to being carried away on it for labour at the Sugar Works.

The defence argued that intimidating labour into employment was not an offence known
to the criminal law of Uganda, and did not, therefore, constitute unlawful means. The
Court noted, however, citing from ARCHBOLD, that a tort which is not a criminal offence
is sufficient to satisfy the provision as to unlawful means, and upheld the convictions.

Section 11 - Facts which are inconsistent with or which affect the probability of
other facts.
11. Facts not otherwise relevant are relevant
(a) if they are inconsistent with any fact in issue or relevant fact; or
(b) if by themselves or in connexion with other facts they make the existence or
non-existence of any fact in issue or relevant fact highly probable or improbable.

What kind of facts are relevant S. 11 (b) is the epitome of all that is found relevant in a
fact in issue. Read S. 5 along with S. 11.

Section 12
12. In suits in which damages are claimed, any fact which will enable the court to
determine the amount of damages which ought to be awarded is relevant.

Section 12 Deals with the facts which affect the quantum of damages.
This Section is said to be a boon to ambulance chasers. E.g. contributory negligence
your participation affects the amount of damages you receive.

If the plaintiff in a civil suit claims damages as compensation for injuries suffered, the
amount of damages which will compensate him naturally becomes a fact in issue.
Evidence which helps the court to determine the amount of damages is relevant. The
following cases show various types of facts which the courts have considered in
reaching an assessment.

MIBUI V. DYER [1967] E.A. 315 (K)

Wounding in course of arrest by private person on suspicion of felony. Psychological

factors of malingering and compensationists taken into account, as well as
aggravation of damages by element of injury to reputation.

MU WANI [1964] E.A. 171 (U)WANGA V. JI

The deceased was an African child and the court considered the amount of damages
for the loss of service to the mother and grandparents, the father being deceased.
Section 13.

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13. Where the existence of any right or custom is in question, the following facts are
relevant
(a) any transaction by which the right or custom in question was created, claimed,
modified, recognised, asserted or denied, or which was inconsistent with its
existence; or
(b) particular instances, in which the right or custom was claimed, recognized or
exercised, or in which its exercise was disputed, asserted or departed from.

If what you have in issue is your right in custom, 13 (a) factors that show when customs
were created, whether it is relevant and what kinds of arguments were made for the
custom. (Locus classicus)

Relevance and admissibility

HEARSAY AND HEARSAY RULE

Hearsay refers to testimony given in court by a person other than the one who perceived
it. As a general rule hearsay is inadmissible. For you start from the premise that reporting in
court what you heard another person say is not going to be admitted in court as evidence. And
this draws from section 63 of the Evidence Act, which explicitly provides that oral evidence must
be direct. So you are not allowed to go to court to say this is what another person said. Oral
evidence must be direct. And when you are dealing with documents it is going to be required
that the author of the document presents that document in court. And the reason that we are
saying that the author of the document should come to court is so that if you want to cross-
examine them you have the opportunity to cross-examine them.

The rule against hearsay is 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 fact contained in the
statement is hearsay and it 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 it is admissible- Justice De Silva

So essentially then what determines whether hearsay is hearsay or not is going to be pegged
around the purpose for which the statement is given. If you are giving the statement to prove the
truth of the contents of the statement, you are giving the statement made by another person
seeking to get people to believe that which is contained in the statement, that is hearsay. But on
the other hand if you state what another person said, not to prove the truth but to establish that
those people actually made the statement, that is not hearsay. Because essentially then what
you are doing is just reporting what another person said and you did perceive of what that other
person said because you heard them. Is this clear?

When you are using the statement to prove that the statement was made, here you are attesting
to something that you perceived of because you heard it had taken place. But where you are
giving a statement to prove the truth of what was contained in the statement which somebody
else had perceived of, that is hearsay. So for instance if a person comes and says, James told

8
me Peter stole the till from the bank. If you are trying to prove the fact that Peter stole from the
bank then you can see there that you will not have direct perception of what happened. If in fact
you did hear James say that Peter stole, you perceived of that fact because you did hear James
say that Peter stole. Is that clear?

The case that you should read that concerns this rule of hearsay is the case of Subramanium v
Public Prosecutor (1956) WLR 965. And the facts of this case were as follows: The appellant
was charged and convicted of being in possession of firearms without lawful excuse. In his
defence, he asserted that he was acting under duress in consequence or a result of threats
uttered to him by Malayan terrorists. When he attempted to state the contents of the threats, he
was overruled by the judge. He appealed against conviction arguing that the judge should
actually have listened to what the import of the threat was. And of course the judge would have
argued that if he was allowed to say what the terrorists had told him that would be hearsay. The
court of appeal held that the conviction had to be quashed because what the terrorists told the
appellant should have been admitted as original or direct evidence. It would have shed light on
subsequent actions of the appellant.

So essentially here what the court is saying is that the appellant should have been allowed to
utter the threat because they would not have been threatening-may be he was told if you dont
fire the firearm we will kill your mother. So the fact that the statement was uttered is one thing,
but the truth of what was in the statement is another thing. Whether the terrorists had the
capacity to kill his mother or whatever else they threatened to do is not what we are seeking to
hear. What we are seeking to find out is whether a reasonable person would have behaved in
the same way as the appellant did in the circumstances. And you should note in this case the
statement I was reading to you on what is hearsay and what is not hearsay was stated. In the
judgment of Justice De Silva at page 959 to 970. That is where that statement that we are
talking about, what is and what is not hearsay is stated by this particular judge:

A statement made by a person not called as a witness which is offered in evidence to

prove the truth of the fact contained in the statement is hearsay and it 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 it is admissible

The other case that we should look at getting to what is hearsay is the case of Myers v DPP
1964 2 All ER 881. This is a case you must read. The appellant in this case was charged and
convicted of receiving a stolen motor vehicle. He was in the business of buying wrecked motor
vehicles for repair and resale. The chief prosecution witness was the person in charge of the
records department of the relevant motor vehicle factory. He testified that every time that a car
was manufactured a workman would note down the engine number and the chassis number of
the car amongst other details and these would be marked on some card. He also testified that
the cylinder head number would be indelibly struck on the cylinder head block so as to be
inerasable. The card would then be microfilmed and stored. At the trial the microfilms were
produced on oath by the witness and schedules were prepared from this microfilm. The
schedules showed that the cylinder block numbers of the car in question belonged to the car
allegedly stolen. The appellant was convicted on the basis of this evidence. The court of appeal

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affirmed the conviction and the appellant appealed to the House of Lords. The House of Lords
held that the trial court and the court of appeal improperly admitted hearsay evidence in the
form of the microfilm and Lord Reid at page 884 stated: The witness would only say that a
record made by someone else showed that if the record was correctly made a car had left the
workshop bearing three particular numbers. He could not prove that the record was correct or
the numbers which it contained were in fact the numbers on the car when it was made.

Do you see the argument here? That essentially the basis of the microfilm was not something
that the witness could testify to because he did not put in the particular entry. He did not actually
author the document. Remember we said by dint of section 63 of the Evidence Act, the person
that authors the document should produce that document. So here the vehicle had left the
workshop with some numbers. Those had now been reduced into microfilm and you have a third
person seeking to produce that as evidence. And essentially what the court is saying here is that
the only thing the witness can say is that some record had been made of a car that left with
some numbers. But he could not actually vouch for the veracity of the truth of what was
contained in those documents. And for that reason, that was hearsay. This is why we are saying
the House of Lords said the trial court and the court of appeal had improperly admitted hearsay
evidence. And because this became a bit technical, Lord Reid ends his statement by saying:

This is a highly technical point but the law regarding hearsay evidence is technical and I
would say absurdly technical

The other case that it would be a good thing to look at just to illustrate how hearsay presents
itself, is the case of Patel v Comptroller of Customs [1965] 3 All ER 593. The appellant here
imported from Singapore into Fiji some coriander seeds shipped in bags. He correctly
engrossed (filled) the customs import entry form and on investigation at arrival five bags of what
he had imported were found to be contained in within another outer bag. So essentially here you
have double bagging. The outer bag of these five bags was marked with the appellants trade
name but it had marked on it Produce of Morocco. In the important entry form the appellant
had filled that the coriander was a product of India. So in respect of the five bags that had
Produce of Morocco, the appellant was charged and convicted in making a false declaration in
a customs import form, on a customs import entry. And we are saying that he had stated that the
seed originated from India when in fact it originated from Morocco.

On appeal, it was held that the evidence of the writing on the bag was inadmissible. It was
hearsay. And this was because the court could not ascertain that in essence the coriander seed
had actually come from morocco even though the bags were marked Produce of Morocco.
There were actually saying nobody knew who and when those markings on the bags, Produce
of Morocco, were made. And essentially then nobody could speak to them testifying to the fact
that the particular coriander seed had originated from Morocco. So they could not be the basis
of conviction for making a false entry because the person who wrote them could not be called to
vouch for the truth.

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The other case that would illustrate the same point is Junga v R (1952) AC 480 (PC). The
accused was charged and convicted with the offence of being armed with the intent to commit a
felony. The police witness gave evidence at the trial, saying that they had been told by a police
informer of the alleged attempted offence. The informer was not called to give evidence and his
identify was not revealed. The accused was convicted. On appeal it was held that the trial
magistrate had before him hearsay evidence of a very damaging kind. Without the hearsay
evidence the court below could not have found the necessary intent to commit a felony and that
being the case the Court of Appeal allowed the appeal against conviction. Given that here was
hearsay evidence, you didnt call the informer who would have actually given first hand
knowledge of the fact that led to the conviction of this person. And that being the case, the Court
of Appeal says that in all fairness the conviction should be quashed.

Another case is the case of Tenywa v Uganda (1967) EA 102(U). The accused was accused of
having stolen a bicycle. The bicycle was seized by police officers acting on this information. On
examination the bicycle was found to have a forged number plate. The accused was convicted
of the offence but appealed and on appeal it was held that the police report from Kampala
suggesting that the original number on the bicycle was altered was hearsay. It should not have
been admitted. Because essentially there was nobody to say this was the number. When you
say there was a fake number on the bicycle you are basically saying that it is not the number
that was on it, so you should have a person to testify to what was actually the original number.
But just to say that it has been changed, even saying that what has been found is what was.
Because essentially the person that marked the number on the bicycle was not called to give
evidence.

The learned trial magistrate was wrong in law to have admitted in evidence the report alleged to
have been obtained from Kampala, which suggested that the original number of the (stolen)
bicycle had been altered. That piece of evidence was hearsay and should not have been
admitted unless the expert who had examined the bicycle had testified before the court and
been cross-examined on the point as to how he arrived at his conclusion.

Over and above those cases you should also look at the cases of

Magoti s/o Matofali v R (1953) EACA 232.

A plan of the locus was made and produced in evidence by a police corporal. Various points
on the plan are marked with letters and it bears a legend showing what these points represent
as to what each point represented he merely said I got the information from Antonia, (P.W. 2),
as to positions and ownership. This, of course, was merely hearsay and his evidence should
have been supported by the evidence of the witness Antonia to the effect that she had,
subsequent to the event, pointed out to the corporal the places where the various incidents, to
which she had testified, had taken place.

R v Gutasi s/o Wamagale (1936) 14 EACA 232

We note that the statement made by the appellant (Ex.P.1) to Mr. Harwich, Superintendent of
Police, was admitted, although the two interpreters who had carried out a double interpretation

11
were not called as witnesses. Without their evidence this statement was strictly inadmissible
since Mr. Harwich could only speak to have taken down what he was told by the second
interpreter.

Waugh v R (1950) AC 203 (PC).

And basically these cases also discuss instances where courts are faced with hearsay evidence
and how they treat them. And it would be useful to read those to begin to understand what kind
of information, the court is really going to take into account in determining whether a particular
piece of evidence is hearsay or not. And essentially that is about the rule, that is you should not
go to court to say what you heard another person say to establish the truth of that which you are
saying.

There are exceptions to the hearsay rule and actually the exceptions are many more than the
rule itself:

the first one would be admissions, formal and informal admissions. And these are covered at
sections 17-24

confessions are another exception to the hearsay rule covered at sections 25-52

thirdly, statements made by persons who cannot be called as witnesses are an exception to the
hearsay rule. And these are laid out at section 33 of the Evidence Act.

evidence given in previous judicial proceedings is also an exception to the hearsay rule. And
that is covered at section 34 of the Evidence Act.

statements made under special circumstances are also an exception to the hearsay rule. And a
number of these are laid out in from section 37 through to 41.

statements in documents produced in civil proceedings are also an exception to the hearsay
rule. Section 35 and 36

Res Gestae is also an exception to the hearsay rule.

affidavit statements especially where they are based on information are also an exception to the
hearsay rule.

statements taken from sick persons who are about to die are also an exception to the hearsay
rule. And these are hazards(?) under the Criminal Procedure Code.

And also evidence by certificate covered at sections 77 and 78.

We will begin by looking at statements made by persons who cannot be called as witnesses:

Statements by persons who cannot be called as witnesses

Section 33 lays out what those statements might be. It actually has 8 examples of such
statements and these are all, in their own right, exceptions to the hearsay rule. And therefore I

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could not agree more with Lord Reid that the rule against hearsay is technical and absurdly
technical.

The opening paragraph at section 33 gives the context within which those exceptions covered at
that section apply:

Statements, written or oral, of admissible facts made by a person who is dead, or who cannot
be found, or who has become incapable of giving evidence or whose attendance cannot be
procured, or whose attendance cannot be procured without an amount of delay or expense
which in the circumstances of the case appears to the court unreasonable, are themselves
admissible in the following cases-

So it is not all the time that you have, for instance, under section 33 (a) a dying declaration or
whatever else, that it is going to be used in evidence. What is detailed at section 33 introduction
will have to apply.

So essentially the statement will be admissible if the person make them is dead, cannot be
found, has become incapable of giving evidence, their attendance cannot be procured. Or even
if it can be procured that would actually occasion expense and delay which in the view of the
court is unreasonable. If those circumstances apply then (a), (b), through to eight would be
admitted. Is it clear?

So each of these eight exceptions there is that rider: cannot be found, is dead, the attendance
cannot be procured without delay or cannot be procured at all. So if it is alleged that a person is
dead, do you think that this statement that a person is dead, is enough? It is not. The fact of the
death has to be ascertained. How do you prove that a person is dead? By a death certificate,
the presumption of death, by people who participated in their burial can be called to testify to the
fact of death. But essentially the fact of death is a fact that needs to be proved until you have
proved that the person is dead through the screening, then you couldnt actually bring any of
these statements . And if a person cannot be found the fact of not being found must relate to
the time that he is required to give evidence. So you cannot just say that you have not been
seeing the personif no effort has been made to procure them to come and give evidence. So
the fact of not being found must relate to time during which you are sought to give evidence.

And the authority for this supposition is the case R v Ndolo (1926) 10 KLR 11.

The court considered the meaning of cannot be found in connection with S. 33 India Evidence
Act and Section 34 of Kenya Evidence Act where the language is identical. Here the witness
left his place of employment and was not served with a summons for the date of the trial. The
trial was adjourned and assistance from the Registration Department was of no avail, as his
movements could not be traced. It was contended that his deposition should be read. The
defence argued tht has the prosecution taken reasonable steps to discover his whereabouts in
preparation for the first date of hearing he would have been available. The court held that the
words cannot be found refer to the time when the witness is sought to to attend the trial, and
do not refer to the state of affairs at some earlier period. There was no question as to whether

13
the search had been a diligent one, and the words appear to imply that such a diligent search
should be required before the condition is held to have been fulfilled.

And also the case of Thornhill v Thornhill (1965) EA 268 (CA), would be authority for the
proposition that the fact of not being found has to be proximate to the time you require the
person to give evidence.

What is an unreasonable delay, or unreasonable expense is a matter within the discretion of the
court, dependent upon the circumstances of a particular case.

In this case the learned trial judge also stated in his judgment that the cost and inconvenience
of bringing a witness from the United Kingdom would not be great in these days of rapid and
inexpensive air travel. With great respect, I disagree that air travel in these days is inexpensive,
although I agree that it is rapid. But the question seems to be this is it justifiable legally to put
the petitioner to the expense of bringing a witness from the United Kingdom to testify about a
fact which is not denied and in respect of whose evidence the court has a discretion to accept
on affidavit, particularly as the petition is not defended and no application was made to have the
witness orally examined?

Having satisfied those introductory matters, the first category of statements made by persons
who cannot be called as witnesses, are dying declarations. Section 33(a)states:

when the statement is made by a person as to the cause of his death, or as to any of the
circumstances of the transaction which resulted in his death, in cases in which the cause of that
persons death comes into question and such statements are admissible whether the person
who made them was or was not, at the time when they were made, under expectation of death,
and whatever may be the nature of the proceeding in which the cause of his death comes into
question;

So when the cause of death of a person is in issue and this could be in either civil or criminal
proceedings, the statement made by such a person which deals with the circumstances of the
cause of the death is going to be relevant. And the case to look at here is the case of Terikabi v
Uganda (1975) EA 60. The deceased in this case gave or made a statement giving the cause of
his death but no evidence of the circumstances relating to the death. And of course the question
was: would this be admissible? Because essentially people are looking at it as being that he has
to give both cause and circumstances. So this case was testing whether if a statement gave
only cause, would it be admissible? If it gave only circumstances but no cause, would it be
admissible? And the court here held that the statement was admissible, that it was not
necessary that the statement refer to both the cause and circumstances. Mention of either
cause or circumstances was sufficient.

In certain jurisdictions it is required that for a dying declaration to be admissible the person
making it must have haven in imminent expectation of death. And the assumption here is that if
you are in imminent expectation of death, you are unlikely to tell lies because you are expecting
to be going to your maker and you do not want to go tainted by untruth. But of course you know
that it fallacious as well because you may be revengeful against a particular person that you do

14
not mind if after you are dead they spend all their lives behind bars, accused of having killed
you. In Kenya, however that is not a requirement. So it is not required in this country that for a
dying declaration to be admissible one would have to be in imminent expectation f death. And
that is actually contained at section 33(a), if you look at the sentence beginning, such
statements are admissible whether the person who made them was or was not, at the time
when they were made, under expectation of death...

And the case to look at here is a case that we will look at again when we look at confessions.

The case of Swami v King-Emperor (1939) 1 All ER 396 (PC). In this case the court
considered the admissibility of evidence by a widow that the deceased had told her that he was
going to a particular place on the invitation of the appellants wife and that the appellants wife
had asked the deceased to go and receive payment of his dues at that place. So the court was
considering whether evidence of a statement by a widow that the deceased had told her he was
going to a particular place on the invitation of the appellants wife to pick up payment of his
dues. And this statement was held to be admissible even though it was made before the cause
of death had arisen. So the deceased here was not in imminent expectation of death. But they
had made a statement that shed light into the circumstances that led to the death that he was
going to pick up his due.

Again on the same point you should look at the case of Kaluma v R (1968)EAR 349. In this
case, three appellants were convicted of the murder of two women in Kenya. The three
appellants happened to be wanted by the Uganda police and the two women they were accused
of having murdered were part of a search party which had been sent to Kenya to find and arrest
the appellants. Evidence was admitted at the trial that one of the two women had made inquiries
about the appellants whereabouts and this had been reported to the appellants. This evidence
was admitted on the grounds that it was relevant as to the motive or reason for the murder. The
appellants were convicted and they appealed challenging the admission of the evidence about
the inquiries and the court held that evidence about the inquiries was admissible under section
33 of the Kenya Evidence Act as a statement made by a person who is dead as to the
circumstances of the transaction, which resulted in the death. So it was not in the category that
would be hearsay and inadmissible. It was an exception to the hearsay rule. So the person was
dead and under section 33 (a) a statement made by a person who is dead on the circumstances
of their death would be admissible as an exception to the hearsay rule.

So essentially then what would be the requirement under section 33 (a) for admission of a
statement as a dying declaration:

it has to relate to the cause and or circumstance of the death of the maker and not to any other
person. So it has to relate to your death as the maker of the statement, not to the death of other
people.

Mohamed Warsama v R.(1956) 23 EACA 576. In this case the deceased had made a series of
dying declarations which were precise and detailed and if true conclusive. He had in his
declaration also stated the cause of death of another person and the question was whether that
part of the dying declaration that identified another person was admissible. And the court held,

15
no, it was not admissible. The question was whether that part of the dying declaration that
pointed to the cause of death of another person was admissible. Remember we said that the
deceased made many dying declarations of a precise and detailed and if true conclusive. But in
those dying declarations did not just talk about the cause of his own death. He actually talked
about the cause of death of another person. And the court was enquiring as to whether that part
of the statement that talked about the cause of death of the other person was admissible. And
the court held, no. the dying declaration has to related to the cause and or circumstances of the
death of the maker, not of other people. So they would admit what was pertaining to his death,
not to the death of other people.

The second rule is that the statement must be proximate to the death. So if you had made
a statement about your death in the year 2000 and then you die this year, the whole question of
the proximity of the statement to your death is going to arise.

Antonio v Barugahare v R (1957) EA 149 (CA). The witness here had given evidence that the
deceased woman had told her six weeks earlier before she died that the accused had asked her
to marry him. So the deceased had confided to the witness, six weeks prior to her death, that
the accused had asked her to marry him. The deceased had also asked the deceased
according to the report to lend him money to pay his tax. She had refused to yield to either
demand. And she was found dead six weeks later. And the question was whether what she had
confided to the witness was a dying declaration. Was the information that he had passed to the
witness, that she had been asked to marry the accused and lend him money a dying
declaration. The court held, not, it was not a dying declaration because the facts alleged were
not proximate or related to the death and the circumstances were not those of the transaction
resulting in the death. You should compare that holding to the holding of the case ;

R v Kabateleine s/o Nchwaba (1946) 13 EACA 164. In this case, a complaint made by a
deceased person to her headman two days before the house in which she was sleeping was
burned, was held directly related to the occasion of the deceaseds death and was a
circumstance that resulted in her relevant. Essentially here you are looking at two days and 50.
So while six weeks are seen as not proximate, not close enough, here the complaint had been
done two days earlier and that is the duration between the complaint and when the death
occurred, is what makes the ruling that it is part of the transaction that resulted in death.

The dying declaration must be complete. And we should here revisit the case of Beddington.
You should also look at the case of Waugh v R (1950) AC 203 (PC). R v Beddington (?), you
looked at that when we were looking at res gestae or was it similar facts? In Waughs case, the
declaration was held to be inadmissible because it was not complete on its face. The deceased
in this case fell in a terminal comma when he was making the statement leaving it incomplete.
So basically what the court is saying is that you dont know what the person might have said if
they had had the opportunity to complete the statement, and for that reason, being incomplete,
then you could not say it is a statement that should be admitted. The same point is made in the
case of R V. Charles Daki s/o Daki (1960) EAR 34. The deceased was in this case admitted
into hospital suffering from gun shot wounds. When he was asked who shot him, he said,
Charles Daki has killed me, he shot me with a gun. I saw him with a gun. He was on a
motorcycle. A friend of mine had visited me and I went to the garage with him. At this point the

16
doctor intervened and the deceased died subsequently. Daki was charged and convicted on the
basis of the statement, despite his counsels objection. On appeal the statement was held
inadmissible on the grounds that the deceased might or might not have added something And
essentially because this statement was not complete, on appeal it was held that this statement
could not be used as basis of conviction because for a dying declaration to be admissible it had
to be a complete statement. For example, if he had stopped at,Charles Daki killed me. He shot
me with a gun. And then he did not express willingness or desire to say other things. Basically
he had gone on to sayhe was now going off on a tangent. What was he going to say when he
said a friend visited him, we went to the garage? May be the friend started quarreling with
Charles Dakinobody knows what this person wanted to say which means the statement
was incomplete because you dont know what he might have said if he had not expired at that
point.

Let us also look at the case of Pius Jasunga s/o Akumu v R (1954) 21 EACA 331. In this
case, a witness who was an assistant police inspector gave evidence that he saw the deceased
lying on the road with a wound in his chest. When asked who had injured him the deceased
replied, Pius Jasunga had stabbed me. Later at the hospital, the deceased made a statement
to the superintendent of police during the cause of which he got weaker and weaker and he was
unable to sign the statement. There was no corroboration of this story and it had been made in
the absence of the accused by a man who was suffering from a terrible wound, from which he
died subsequently. And the court here held that even though as a rule of law it is not required
that a dying declaration should be corroborated, as a matter of practice you should not convict
on uncorroborated dying declaration, even though as a matter of law there is no requirement
that there be corroboration or independent credible evidence fortifying a particular statement,
and in this case a dying declaration. There is no requirement of law.

But here one of the points they noted was that as a matter of practice the court should always
require corroboration. And they said that the weight of a dying declaration that is made in
circumstances suggesting that the person might have said something more, must be less than
the one that is fully made. A dying declaration that is made in circumstances that suggest that
the person may have said other things but he was prevented from saying those other things
because he expired, the weight attached to that dying declaration must essentially be less than
one that appears to be complete. And over and above that the principle that even though law
will not require you to corroborate a dying declaration, as a matter of practice the court should
always require that such be corroborated. And that is going to be the final requirement of a
dying declaration. A dying declaration requires corroboration as a matter of practice. When you
look at rules on corroboration, you will see that the law on evidence requiring corroboration is
generally divided into two.

There are those circumstances where the law actually requires that you get corroboration. Like
when you have evidence of children of tender years. There are a number of cases where the
law requires thatI think evidence of the complainant in rape case is required by law to be
corroborated. But over and above that, courts in exercising cautionand again being guided by
the need to be fair to the accused personhave devised instances where even though the law
does not require corroboration they will ordinarily require corroboration. And a good example is

17
where you have a dying declaration. That a dying declaration should not form the basis of
conviction if it is not corroborated and corroboration here is talking to bringing in credible,
independent, strong evidence to fortify that which is being state in the evidence requiring
corroboration. It is also required for confessions that are repudiated or retracted, where a
person has made a confession and they later say that either they never made it or that they only
made it because they were tortured or they were coerced into making it. That kind of
confession, even should the court the court decide to admit it, it will ordinarily as a matter of
practice required that it be corroborated.

Statements made in the ordinary course of business

The second category of statements under section 33 are statements made in the ordinary
course of business.

Section 33(b) states:

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 by him.

So for a statement to satisfy the requirements of 33(b) it has to be a statement being in the
ordinary course of business. And section 33 (b) gives examples of those to include entries or
memorandum in books or records, and these have to be regularly kept. For instance, books of
account, ledgers, journals. It could also be acknowledgements that are written and signed for
the receipt of money, receipt books, or documents used in commerce. These would be
admissible as an exception to the hearsay rule. And the assumption here is that the person
making them has no motivation to falsify them. They are kept in the ordinary course of business;
they would actually be entered.

But remember in the case of Myers v the DPP what seems to have been record that were kept
in the ordinary cause of business were actually ruled to be hearsay because the person making
them did not actually come to testify to them. And this is again to talk to the introductory part of
section 33, that it has to be that the person is dead, cannot be found, is incapable of giving
evidence, cannot be procured or even they can be procured it will be as a consequence of delay
and expense which is unreasonable. So in Myers v the DPP it was not established that a person
had died, or could not be found. So essentially for this book to be admissible it is not for all time.
The exception comes in because what is contained at the introduction at section 33 is already
applicable, that there is a problem in getting this person here because they are dead, etc.

And the cases to look at there are

Commissioner of Customs v SK Panachand (1961) EA 303 (CA)

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The company imported some blankets allegedly from West Germany, No import licence was
required for goods from West Germany, although a licence was required for goods from other
countries. The Customs seized the blankets acting on information that they, in fact, had come
from East Germany. The company, seeking the return of the blankets, in order to support its
case produced two documents, an invoice, and a document signed by a Mr. Blok in which it was
stated that the invoice, on which appeared the words Country of Origin West Germany, was
correct. The Company claimed that these documents satisfied the burden placed upon the
Customs Acts, i.e. to prove the country of origin of the blankets.

The decision involved S. 33 of Evidence Act covering cases where the attendance of a witness
cannot be procured without unreasonable delay and expense, subs. (b) dealing with statements
or documents made in the ordinary course of business. The main issue was whether the
invoice and document signed by Mr. Blok were admissible in evidence to prove country of origin.

The court held basically that the any person who will give evidence of any other fact in this
case, as set forth in S. 110 I.E.A was Mr. Blok, who by means of his signed document would
give evidence of the other fact, i.e. that the blankets came from West Germany. Before Mr.
Blok could give evidence through the media of the documents, S. 110 placed the burden upon
the Company of proving:

that Mr. Bloks attendance at the trial could not be procured without unreasonable delay of
expense, that Mr. Bloks signed document was used in the course of business, and

that the document was actually signed by Mr. Blok, the person whose attendance it was
unreasonable to procure.

Since the Company had failed to meet its burden of proving these conditions precedent to the
admission of the documents they were held not admissible in evidence and the court ordered
condemnation of the blankets.

You should also look at the case of R v Masalu (1967) EA 355 (T).

You should also look at Gichunge v R (1972) EA 546.

And all these cases would be illustrating what might be statements made in the ordinary course
of business. The cases of Masalu and Gichunge are particularly interesting because they deal
with post-mortem reports and would seem to indicate that fact report can technically be admitted
as a statement made in the ordinary course of business if they constitute a statement of fact,
rather than a statement of ones opinion, when you are talking about the cause of death, when
you are talking about either a statement of fact rather than an expression of opinion, that would
be admissible.

You should also look at the case of R v Magandazi and four Others (1967) EA 84 (CA), which
would also talk to documents made in the ordinary cause of business.

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The accused were employed in Uganda to carry loads to the Congo. On a charge of theft of a
portion of the loads by the accused, a letter from an agent of the complainants firm resident in
the Congo was placed in evidence, but the writer was not called. The Court said:

a letter was produced by the same witness purporting to come from the agency of
the complainants firm in the Congo and showing shortages in the goods received. (Section
30(2) quoted). The provision of the Section should in my opinion be only sparingly applied and
rarely, if ever, be used where the statement goes to the root of the whole matter before the
Court, as in the present case. Further the letter, although it may be said to have been written in
the ordinary course of business to report a loss, appears also to be in the nature of a special
letter written with a view to the present prosecution. The letter was not admitted.

Another case might the case of Idi bin Ramadhan v R (1914) 2 ULR 108.

The statement of a police constable was put in evidence during the course of the trial after it
had been proved that the constable in question had proceeded on leave. Presumably the
statement purported to be put in evidence under s. 32(2) of the Evidence Decree. GRAY C.J.
quoted from Magandazis case and from Ningawa v. Bharmappa I think in using the phrase in
the ordinary course of business the legislature intended to admit statements similar to those,
admitted in England, as coming under the same description. The subject is clearly dealt with in
Chapter XII of Mr. Pitt Taylors Treatise on the Law of Evidence, and the case(s) which he has
collected show that this execution to the general rule against hearsay tends only to statements
made during the course, not of any particular transaction of an exceptional kind such as the
execution of a deed or mortgage, but of business, or professional employment in which the
declarant was ordinarily or habitually engaged. The phrase was apparently used to indicate the
current routine of business which was usually followed by the person whose declaration it is
sought to introduce.

Statements against the interests of the maker

The next category of statements admissible under section 33 are statements against the
interests of the maker.

Statements against the interests of the maker

Section 33 (c ) reads:

When a statement against the pecuniary or proprietary interests of the person making it, or
when, if true, it would expose him or would have exposed him to a criminal prosecution or to a
suit for damages;

So essentially a statement which is against the interests of the maker would be admissible
as an exception to the hearsay rule. But remember against the introductory part of section 33
has to apply before you admit that it makes an exception to the hearsay rule. And over and
above that you have to look at: Is it really against the interests of the maker? And the interests
of the maker might be pecuniary or relating to money, proprietary where it affects property or the
ownership of the property of the maker, or it could also be one that exposes a person to a claim

20
for damages or to prosecution. And the rationale here is that in the ordinary course of life a
person is not going to make a statement against their own interests and would only make such
a statement if it is true.

Case to look at is the case of Marie Ayoub v Standard Bank of SA (1961) EA 743 (CA).And
the statement here was made by the deceased. There was a statement in a letter where the
deceased was said to be owed for the running of his estate. A statement in a letter in which it
was said that the plaintiff were indebted to the deceased for the running expenses of an estate.
The question arose as to whether the statement would be an exception to the hearsay rule
under section 33(c ) and it was held not admissible because the maker was not dead. The
person who had made the statement saying they were indebted to the deceased for the running
of the estate was not dead. So the prerequisite for the operation of section 33 (c ) had not been
satisfied.

In Dias v R (1927) 3 Uganda Law Reports 214, where the accused was charged with the
offense of falsifying books of account and the prosecution relied on a letter written by a
deceased clerk to the head of the department which charged the accused with having ordered
him to make the false entries. So the question was, could such a statement be admitted under
section 33 (c ) as one against the interests of the maker. Who was maker of the statement
here? The deceased clerk. And who was the accused? He was not the deceased. So the court
here held this statement was not proper one for section 33 (c ) equivalent to Uganda, that it
could not be admitted as an exception to the hearsay rule because it was in the very interest of
the deceased clerk to make that statement so that he could pin responsibility on the other
person rather than on himself. So it was not actually a statement against the interests of the
maker because the maker was charging another person with falsifying the books and therefore
it was not the right statement for the application of this exception.

The next exception at section 33 is statements expressing opinion as to a public right or

custom. And remember again it is when the maker of the statement would be dead, cannot be
found and all those things that are contained in the introductory. So statements made by
persons who cannot be called as witnesses are admissible if they give an opinion on the
existence of custom and for such to be admissible the people ought to be a person that might
be aware of such right or custom and the statement should been made before any controversy
as to the right of custom arose. So you could not make a statement to suit your claim in a
forthcoming suit. The statement ought to have been an unguarded statement of opinion on a
public right or custom and it ought to have been made before there was any controversy as to
that public right or custom. So you made the statement just before the institution of the suit,
then that is not going to be admitted because you would have tailored it for that specificand
when we talk about a public right it is one which is held in common by all members of the public.
For instance, when people are talking about a right of way in the form of a highway, people who
would have know that right of way was there, a public right of way was there and it has to be
one that affects a considerable portion of the community. For instance also when you talk about
the boundary of a village. And remember that for it to be admissible as an exception to the
hearsay over and above it having been made before there was a controversy, the person ought
to be a person who can be considered as having competent knowledge, person likely to know.

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Statements that relate to any relationship

The next exception is at subsection (e), which reads:

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;

So essentially state of persons who cannot be called as witnesses will be admissible when they
relate to the existence of any relationship. And the relationship could be a relationship by blood,
by marriage or by adoption. And the person making the statement ought to have been a person
who would have had special means of knowledge of the existence of that relationship. So it is
not just any person. It is a person who had special means of knowledge. And remember again it
is only in instances where that person cannot be called as a witness because of the variety of
factors, that they are dead, cannot be found, etc. And the statement must also have been made
before there was a dispute as to the existence of the relationship or not. So there ought to have
been an unguarded action.

Seif Ali Bajkni and others v Hamed Bin Ali (1945) 7 Zanzibar LR 13. This involved a situation
where a child was born 10 months after the marriage between the parents was dissolved.
During the hearing it was sought to introduce a document concerning the relationship, written by
the alleged father. The document was written in contemplation of the suit because the father
disputed the parenthood and they made the document in the event that the child should ever file
suit. If the child files suit against the father then the father would turn around and say there is a
problem here, I do not accept that you are my son. So the document was written in
contemplation of the suit because the father disputed his fatherhood of the child and the
document contemplated a situation where the child might file any suit against the father. And
the court held that the document conclusively proved the existence of the controversy and it
should be rejected. Because remember we said that the document ought to have be an
unguarded assertion. It should not be one done in contemplation of a suit. The document itself
conclusively proved the existence of the controversy at the time it is alleged to have been
written because the father only wrote the document because they disputed their parenthood of
the child. And they were writing it to guard themselves in the event that this child should ever
fight it against the father. And so it should be rejected because the document ought to have
been made when there was no dispute as to the existence of the relationship but you see here
the father was dead but he had written the document. But he had only written the document for
the purposes of establishing certain matters.

Statement relating to family affairs

The next exception is at (f), statements relating to family affairs. Those will also be admissible
and these ought to be made by persons who would have knowledge, again. And they could also
be on tombstones, family portraits, or other places where such statement should be made. It

22
could also be in a will or a deed. So if you have a statement relating to family affairs in any of
those places and it is made by a person who cannot be called as a witness, it would be
accepted as an exception to the hearsay rule. And the assumption here is that there will be
nobody inserting falsities in those kinds of places, where you are talking of a tombstone, a
family portrait or a will or a deed. Those are solemn documents, so if you have those kinds of
statements made by person who cannot be called as witnesses, there will be admissible.

Statements made by persons who cannot be called

Then at section 33 (g) where you have statements made by persons who cannot be called,
which are contained in a deed or other transaction that establish a custom, those will be
admitted. When a statement is contained in any deed or other documents which related to any
such transaction as mentioned in section 13 (a). 13 (a) gave the establishment of customs or
rights. Those would be admissible. And again here you are talking about statements that show
when the custom or the right was created, when it was claimed, where it was modified,
instances when it was recognized, or when it was asserted or denied. All these could be
admissible if they are made by a person who cannot be called as a witness. And this provision
includes private as well as public rights. So it is not just for public rights. It is also for private
rights.

Statements made by several persons expressing feelings or impressions

And finally under section 33, statements made by several persons expressing feelings or
impressions on their part, which are relevant to the issue in question. So if a number of people
who cannot be called as witnesses had made statements expressing their feeling or
impressions which feelings or impressions are relevant to the matter in question that is going to
be admissible. For instance, if you have a number of people saying they were apprehensive,
they had made statements to the effect that they were apprehensive that something was
happening or that they got the impression that things were not being done in the way they
should have been done. And again here of essence to admissibility is that they made them as
unguarded statements. They are not tailor made for a specific procedure.

I urge you to read Durand for the explanation of this statement because as you see this is just
one section, which has eight sub-sections. And we are just scratching the surface of hearsay.

So we still have to deal with the next category of statements that would comprise exceptions to
the hearsay rule. And again to reiterate what Lord Reid said that the rule against hearsay is very
technical and actually take a bit of reading through to begin to appreciate why would it be
admissible. And remember when you are reading the exceptions in section 33 you have to read
that bearing in mind the introductory bit: on when is admissible, it is not for all time. It is when
those passes operate. So if you are bringing a statement when the maker is not dead, it is not
going to be admissible.

If you are bringing it when it is not against the interests of the maker or it is against the interests
of the maker but the person could still be found to come and testify to the issues directly, then it
is not going to be admissible. And look at the exceptions to the hearsay rule as a way in which

23
 the legislature is trying to bring information that would otherwise be unavailable. So you are
thinking, you know you cannot get the best because the person that has the best evidence is
dead, cannot be found, and all those things. And so you allow for the second best. And given
that it is your second best that is why for instance for dying declarations you have the
requirement that it be corroborated. So the fact that it is hearsay and it is being accepted as an
exception to the general rule, is going to have a bearing on the weight that is attached to that
kind of evidence.

Evidence given by a witness in judicial proceedings is admissible as an exception to the

Hearsay Rule and S. 34 to prove the fact stated. You allow hearsay evidence because it is the
best under the circumstances and it saves the court time.

Under Section 34(a) the reason you allow this evidence is because the best evidence is not
available, the witness has to be dead, cannot be found, is incapable of giving evidence, is kept
away by the adverse party, his presence cannot be obtained without delay and expense which
is unreasonable.

Section 34 (1) (a) gives further requirements as follows.

1. The subsequent proceeding has to be between the same parties or between their
representatives in interest. This is because they would have had the opportunity and right to
cross-examine the witness.

2. The adverse party must have had the right and opportunity to cross examine the witness
in the first proceeding.

3. The questions in issue were substantially the same in the first as in the subsequent
proceeding.

Nassir Haji Page 18 7th Case course outline

A witness had given evidence before the magistrate at the preliminary inquiry and then
proceeded to England on leave. He proceeded on leave before counsel for the accused had
reserved his cross-examination and defence. During the trial in the High Court the evidence of
the witness was admitted under S. 33 of the E.A. (a person who cannot be found) on appeal,
admission of this evidence given in the preliminary enquiry was
challenged. The court held that the evidence had been properly admitted as there was a right
as well as an opportunity to cross-examine at the enquiry. The fact that the counsel for the
accused had not exercised that right was not the point, the point was that they had opportunity
and a right they did not exercise and could not now say that the witness was not available.

The requirement that the questions in issue should be substantially the same presents problems
to the courts. Why take them back to court if they have been dispensed with? It is applicable
where you have a retrial, i.e. on appeal where a retrial is ordered. There is also the question as
to whether the previous proceedings was criminal and the current one a civil are the questions
the same? One needs to go back to notes on Res Judicata and when that applies and read
again

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Queens Drycleaners V. East African Community

Under Section 35 statements in documents produced at a civil proceedings are admissible as

an exception to the hearsay rule. S. 35 is to the effect that a written statement is admissible to
prove the facts contained in it if it is made by a disinterested person with personal knowledge of
those facts or if it is made by one who in the discharge of his duty records information supplied
to him by a person with personal knowledge. The recipient of the information who would be
recording it should be recording it in a continuous record. In some circumstances where a
person has a personal knowledge and being disinterested puts down matters, if the original
document is produced in such circumstances, the maker need not be called, if the maker is
dead, incapable of giving evidence etc.

The court allows this evidence to expedite reception of evidence, you are dispensing with calling
maker of document because they are not available and the evidence is valuable in determining
the case.

The court can also admit the written evidence or a certified copy of that document, there are
certain documents you could prove through certified copies i.e. public documents . there is also
allowance for secondary evidence under S. 68 this is done in the interest of expeditious and
inexpensive disposal of a case. Under this case, who is an interested person and the Act has
not defined who an interested person is

Lord Devlin in the case of Bearmans V. Metropolitan Police Receiver 1961 1 WLR 44

Lord Devlin stated in page 52 no witness ought to be held to be a person interested on a

ground that would not be taken into consideration as affecting the weight of his evidence if it
were actually in court Lord Devlin is saying that the question as to who an interested person is
is a question of fact.

Section 36 addresses itself to the issue of the way to be attached to a statement rendered
admissible by Section 35. Section 35 deals with documentary evidence. It states that weight is
pegged to the circumstances relating to accuracy. What odds are there that this statement is
accurate. You will also be looking at the point the statement was made whether it was
contemporaneous with the occurrence of the event. You will also be looking at the question as
to whether the maker had any incentive to conceal or misrepresent the fact. This is a fact of
determination since what appears to be the case on the face might not be the real case as the
person recording the event could have had personal reasons for any number of reasons. If a
journalist recorded the event, it could be the journalist was not recording the events as a
disinterested party but it might turn out that he had a relative who was involved in the accident
to determine whether there is incentive to misrepresent the facts.

STATEMENTS MADE UNDER SPECIAL CIRCUMSTANCES

They are covered under Sections 37 41 part 6 of the E A.

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The first category of such statements are entries in books of accounts. These are admissible if
they are relevant but a book has to exist with a number of entries not just a single entry and if
the books related to the sale and delivery goods, there has to be corroboration by a person who
loaded the goods, or one who saw them unloaded or loaded. S. 37 entries in books of account
regularly kept are admissible.

Odendo V. R (1974) E.A. 6

This case is an authority for the proposition that where books of accounts are concerned the
need for corroboration is important under Section 37 and also where there is delivery of goods
corroboration is essential.

Section 38 has an example of an entry in a public record. 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 the book register or record is kept is admissible. For
example if a priest performs a wedding, they are expected to keep a register even though they
are not public officers.

What constitutes a public record?

In the case of Ladha & Others V. Patel & Others (1960)

A public record must be intended for the use of the public or be available for public inspection. It
should be a record of fact not opinion.

Chandaria V. R page 18 of the Course outline 9th Case

The whole question of what constitutes a public official and the court of appeal judges ruled that

Section 38 does not apply to documents made by members of the public when detailing
information necessary for their individual use whether or not those documents are kept in a
public department such as the immigration department. This case dealt with forms that a
traveller had filled at the airport and a person sought to introduce this evidence in court under
the provision of any other person. The judges were of the view that the provision referred to
people other than public officials who find themselves under a specific duty to maintained or
keep entries in any record of a public or official nature.

Under Section 39 A statement made under special circumstances

Statements and representations of facts made in published maps or charts generally offered for
public sale, or in maps or plans made under the authority of any government in the
commonwealth, as to matters usually stated or represented in such maps, charts or plans, are
admissible.

The reason for this is to expedite matters and you have the de minimis to expedite matters.

Section 40 statement made under special circumstances

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 Statement of fact contained in laws and official gazettes. 40(a)

(a) in any written law of Kenya,

(b) in any written law of Kenya

Section 41 deals with statements as to law contained in books.

The court has to form an opinion on the law of a country. Essentially the fact that it is authored
under the authority of government is what is going to determine whether it is admissible.

STATEMENTS OF PERSONS WHO ARE SERIOUSLY ILL

They are admissible as an exception to the hearsay rule. It is provided for under criminal
procedure rule. It is necessary to serve the adverse party that you intend to take a statement
from a particular person who is seriously ill, this way you accord them an opportunity to come
and cross-examine the witness. If the person later dies or cannot be procured, then the
statement will be admitted as an exception to the hearsay rule.

EVIDENCE BY CERTIFICATE

Under Section 78 of the Evidence Act, photographic evidence is admissible in criminal cases
upon the production of a certificate by an authorised officer authenticating the photograph.
Authenticating is through granting a certificate to the effect that this is what was actually taken
for example a birth certificate is issued instead of calling witnesses to testify to ones birth.

AFFIDAVITS

These are written statements on behalf of people (deponents) it has to be sworn or affirmed and
could contain statements of fact which the deponent is able to prove from his own personal
knowledge. You cannot swear an affidavit on matters that are not within your personal
knowledge.

Life Insurance Co. of India V. Panesar

PRESUMPTIONS
These are inferences that a court may draw, could draw or must draw. Presumptions are
devices that entitle a court to pronounce on a particular issue not withstanding the fact
that there is no evidence or there is insufficient evidence.

The inference that the court may draw could be affirmative or dis-affirmative (on the yes or on
the no) presumptions enable a court to find a fact to exist or to find a fact not to exist.
Essentially presumptions will have effect on the burden of proof. If we are saying that
presumptions will help the court to find a certain fact to exist, it will have an effect on what
burden of proof a person will have.

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 There are 3 categories of presumptions:

1. PRESUMPTIONS OF FACTS these are inferences that may be drawn upon the
establishment of a basic fact. The operative word in these presumptions is may. When you
find a basic fact to exist, you are invited to come to court. There is an invitation to the court to
draw a certain inference.

2. REBUTTABLE PRESUMPTIONS OF LAW They are inferences that must be drawn in the
absence of conclusive evidence to the contrary. A good example is the presumption of
innocence, that every person accused of a crime is innocent until proved guilty. Until there is
conclusive evidence dispelling the innocence of the accused person. Essentially these
presumptions are said to be mandatory until you have other conclusive evidence to the contrary.

3. IRREBUTTABLE PRESUMPTIONS OF LAW: These must be drawn no matter how much

evidence exists to the contrary. Once you establish the basic fact pertaining to the presumption
then you have to draw the inference that will dispel that presumption. They will usually be
drawn from statutory provisions. They are public policy pronouncements, which decree that in
the interest of public certain matters are decreed to be a certain way e.g. an 8 year old boy is
not capable of carnal knowledge.

Section 4 of the Evidence Act defines presumptions of facts and rebuttable presumptions of law

(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.

PRESUMPTIONS OF FACTS: (DISCRETIONARY PRESUMPTIONS)

They are inferences that may be drawn. Section 4 (1).

Evidence Act Section 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.

The court is allowed to presume and it is incumbent on the person who argues otherwise to
prove their case.

Section 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

28
 jurisdiction, 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.

ction 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 admissible
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.

There are certain things that are non-contestable and one should not waste the courts time
trying to prove them.

Section 113 this section used to help in probate matters but once the Law of Succession was
put into being it was repealed. This was important when we would talk about proof of death
within 30 years.

Section 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 conduct and
public and private business, in their relation to the facts of the particular case. (Presumption of
likely facts)

We are talking about an inference that may be drawn regarding natural events, human conduct
and the common course of natural events. You infer from what you see. If a person is caught
with stolen goods, it is presumed that he stole them or that he knows who stole them. If they
cannot adequately explain how they came to possess stolen goods, then the incumbent of proof
is on them to say how the owner came to lose the goods.

The ability of the court of law to draw an inference

Presumption of guilty knowledge. From experience we can infer that a woman who is in
possession of stolen goods after the theft and cannot give account of those goods is either the
thief or has received them knowing them to be stolen. We are talking of recent possession.

In Zus V. Uganda the question arose, the court here refused to apply the doctrine of recent
possession after the accused was found in possession of a stolen bicycle 7 months after it had
been recorded lost. The trial court had actually applied that doctrine to convict the thief of both
the theft and receiving stolen goods because the accused had not given any reasonable
explanation by how he had come upon the bicycle. The Appeal Court held that 7 months cannot
be described as recent and consequently the court of appeal quashed the conviction for theft
while upholding the conviction for receiving stolen goods.

PRESUMPTION OF LIKELY FACTS S. 119 (IMMUTABILITY OF THINGS)

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A thing or state of things which has been shown to exist within a period shorter than that within
which such things or state of things usually cease to exist is presumed to be still in existence.
An example is given in the case of

Kanji & Kanji V. R. 1961 E.A 411 C.A

In this case a sisal factory employees arm was amputated by a sisal decorticator in April 1960.
An examination done by a Mr. Perkin in September 1960 showed that there was no barrier or
fence to protect the employees when feeding the machine with sisal leaves. The firm was held
liable for failing to provide ample barriers to protect employees from the machine and this
finding was held on the basis of the presumption of the immutability of things. On appeal the
factory owner had argued that there was some form of fence at the Factory when the accident
occurred in 1960. This barrier was not found to be in place in September when Mr. Perkins did
his inspection. The Court held that the Magistrate was correct in presuming that the machine
was in the same condition in April as it was in September 1960. It is unlikely that there was a
barrier in April which disappeared by September but the factory owners were welcome to bring
in evidence to prove that there had been a barrier in April.

OFFICIAL & JUDICIAL ACTS ARE REGULARLY PERFORMED

(PRESUMPTION OF REGULARITY)

It is based on sound public policy which imputes good faith on official and judicial conduct. The
burden is on he/she who alleges irregularity to bring the evidence to disprove or establish the
irregularity. Looking at how our courts run, this might not be the way to go. For instance if your
file gets lost, will you allege that the file got lost by the court.

THE COMMON COURSE OF BUSINESS HAS BEEN FOLLOWED IN PARTICULAR CASES

The basis of this presumption is business practice. If some business has been carried out
pursuant to this common course, it is going to be presumed to be so unless the person alleging
otherwise brings evidence to the contrary. If you have a quarrel with the common course of
business, it is incumbent on you to prove that the common course of business was not followed.

EVIDENCE WHICH COULD BE PRODUCED AND IS NOT PRODUCED WOULD IF

PRODUCED BE UNFAVOURABLE TO THE PERSON WHO WITHHOLDS IT:

This again is something that you draw as a worldly-wise person. If someone is withholding
evidence, it would be presumed that the person withholding the evidence is because It Is
against them and it is incumbent upon the person withholding the evidence to show that it is not
so.

ACCOMPLICES ARE UNWORHTY OF CREDIT & THAT THEIR EVIDENCE SHOULD NOT
BE USED TO CONVICT UNLESS IT IS CORROBORATED

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 There are certain witnesses who are held suspect and accomplices are some of these
witnesses. The reasons for the unworthiness of the evidence are that an accomplice is a
participant in the offence and such a person would be highly tempted to pass the buck. Having
participated in the commission of the offence an accomplice is generally an immoral person and
their word should not be taken without corroboration. An accomplice is likely to favour the state
in hope for a pardon. It is necessary to get independent testimony on material particulars.

Davies V. DPP 1954 AC 378

The Appellant together with other youths attacked another group with fists. One of the members
of the other group subsequently died of stab wounds inflicted by a knife. Six youths including
the Appellant and one L were charged with murder but finally the Appellant alone was
convicted. L and the others were convicted of common assault. At the Appellants trial, L gave
evidence for the prosecution. Referring to an admission by the Appellant of the use of a knife by
him. The Judge in this case did not warn the Jury on the danger of accepting Ls evidence
without corroboration. On Appeal the Appellant was saying that he was wrongly convicted
because of lack of this warning on the part of the judge. The court held that there was no good
reason for quashing the conviction because L did not know before the murder that any of his
companions had a knife. Essentially the court held that L was not an accomplice in the crime of
murder. The court here defined accomplices as persons who are Participes Criminis in respect
of the actual crime charged whether as principal participants before or after the fact. It included
people who procured, aided or abetted in the commission of the crime. The Court was trying to
exonerate L from being a participant. He did not participate in the stabbing because he was not
aware that his colleague had a knife.

REBUTTABLE PRESUMPTIONS OF LAW:

To rebut this presumption you need conclusive evidence. These are presumptions that are
decreed by law. A good example is the presumption of genuineness in a document purporting
to be the Kenya Gazette. There is also the presumption that a person between 8 and 12 is not
criminally liable unless it can be shown that he knew that his action was morally and legally
wrong. Once you establish the basic fact, then the person could not be exposed to criminal
liability unless you bring evidence to show that he knew that what he did was legally and morally
wrong.

Section 83. Presumptions as to documents

(1) The court shall presume to be genuine every document purporting to be a certificate,
certified copy or other document which is

(a) declared by law to be admissible as evidence of any particular fact; and

(b) Substantially in the form, and purporting to be executed in the manner, directed by law in that
behalf; and

(c) Purporting to be duly certified by a public officer.

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 (2) The court shall also presume that any officer by whom any such document purports to be signed
or certified held, when he signed it, the official character which he claims in such document.

To be able to disprove documents under this act you have to bring evidence.

Records of Evidence

Section 84 Whenever any document is produced before any court, purporting to be a record
or memorandum of any evidence given in a judicial proceeding or before any officer authorized
by law to take such evidence, and purporting to be signed by a Judge or magistrate or any such
officer as aforesaid, the court shall presume

(a) that the document is genuine;

(b) that any statements as to the circumstances in which it was taken, purporting to be made by
the person signing it, are true; and

(c) that such evidence was duly taken.

The use of the word shall documents are presumed to be genuine.

Section 85. The production of a copy of any written law, or of a copy of the Gazette containing
any written law or any notice purporting to be made in pursuance of a written law, where such
law or notice (as the case may be) purports to be printed by the Government Printer, shall be
prima facie evidence in all courts and for all purposes whatsoever of the due making and tenor
of such written law or notice.

There is a public policy that such a documents shall be genuine unless there is conclusive
evidence to the contrary.

Sections 86, 87 and 88,

Section 86: (1) The court shall presume the genuineness of every document purporting to
be

(a) London Gazette, the Edinburgh Gazette, or the official Gazette of any country in the
Commonwealth.

(b) A newspaper or journal;

(c) A document directed by any law to be kept by any person, if such document is kept
substantially in the form required by law and is produced from proper custody.

(2) Documents are said to be in proper custody if they are in the place in which and under the care
of the person with whom they would naturally be; but no custody is improper if it is proved to
have had a legitimate origin, or if the circumstances of the particular case are such as to render
such an origin probable.

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 Section 87. Where any publication or part thereof indicates or purports to indicate the name of
any person by or on behalf or under sponsorship of whom, or the place at which or date on
which, such publication or any part thereof was contributed, it shall, in any proceedings for an
offence under any written law or for contempt of any court, be presumed, until the contrary is
proved, that such publication or part thereof was contributed, by or on behalf or under the
sponsorship of such person, or at such place or on such date, as the case may be.

Use of the word shall all publications will be deemed to have been published, edited, printed in
the place that they are said to have been published unless you can bring evidence to the
contrary.

Section 88: When any document is produced before any court, purporting to be a document
which, by the law if force for the time being in England, would be admissible in proof of any
particular in any Court of Justice in England, without proof of the seal or stamp or signature
authenticating it, or of the judicial or official character claimed by the person by whom it purports
to be signed

(a) the court shall presume that such seal, stamp or signature is genuine, and that the person
signing it held, at the time when he signed it, the judicial or official character which he claims in
such document; and

(b) the document shall be admissible for the same purpose for which it would be admissible in
England.

Section 89: (1) The court shall presume that 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 were so made or published and are accurate.

(2) Maps or plans specially made for the purposes of any cause or other proceeding, civil or
criminal, must be proved to be accurate.

It talks of maps or plans purporting to have been published by the government are presumed to
be accurate unless you produce evidence to the contrary. Those that emanate from the
government will be presumed to be accurate.

Section 90. The court shall presume the genuineness of every book purporting to be printed or
published under the authority of the Government of any country and 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.

Laws and Judicial Reports are presumed to be accurate.

Section 91. The court shall presume that every document purporting to be a power of attorney,
and to have been executed before and authenticated by a notary public or commissioner for
oaths or any court, judge, magistrate, or Kenya consular officer or diplomatic agent, was so
executed and authenticated.

33
 Section 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.

You are talking about presumption as to due execution.

Section 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 judgement or record was pronounced or recorded by a court of competent
jurisdiction, 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 judgements or judicial records.

Section 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 admissible 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.

Section 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 presumption as to the person by whom such message was delivered
for transmission.

The presumption of facts distinguished by use of the word may.

PRESUMPTION OF DEATH

Section 118 (a) 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.

If a person has not been heard of for 7 years by people who would have heard from him he is
presumed dead. For purposes of expediting matters. It is a rebuttable presumption of law
premised on length of time of absence of a person. Seven years is arbitrary. The people likely
to hear from such a person are members of the persons immediate family.

For the presumption to hold the persons have to be,

1. There are people who would likely to have heard from that person in that period.

2. That those persons have not heard from the person;

3. All due enquiries have been made as appropriate in the circumstances.

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 Chard V. Chard (1956) 2 AER 259

In this case parties to a marriage celebrated in 1933 sought decrees of nullity on the grounds
that the husband had been through a marriage ceremony in 1909. The first wife in respect of
whom there was no evidence of ill health or registration of death was last heard of in 1917 and
would be aged 44 in 1933. There were reasons which might have led her not to wish to be
heard of by her husband or his family in that between 1917 and 1933 the husband was
continually in prison. The question was whether one could presume that she was dead and
therefore hold this marriage of 1933 valid. The court held that there was no evidence of a
person who would have been likely to have heard of the first wife between 1917 and 1933 and
consequently the presumption of death was inapplicable in which case the nullity would not go
through but they would have to bring in more evidence.

Prudential Assurance V. Edmonds

This was an action based on life insurance. The issue was whether the defendant was dead or
alive. The defence was that the defendant was not dead. The family gave evidence of not
having heard from the man for more than 7 years. However, his niece had written to her mother
from Australia stating to have seen him in the street in Melbourne but that he was lost in the
crowds before she could speak to him. The court here held that the presumption of death could
not hold in the light of this evidence by the niece.

Re Phenes Trusts

Case dealing with a persons inheritance.

PRESUMPTION OF MARRIAGE:

When does the presumption of marriage arise? This arises in two situations,

1. Where there has been a ceremony of marriage and subsequently cohabitated. If the parties
had capacity to contract a marriage then the law presumes that they are validly married. You
establish presumption of marriage through ceremony and cohabitation. One talks of formal
validity of the marriage this is the law of the place where you purport to have gotten married
(i.e. law of the locus or lex loci of celebration of the marriage) once it is admitted that a marriage
was celebrated between 2 persons who intended to marry then the formal validity is presumed
to exist.

Piers V. Piers the couple got married in a private dwelling house while the law required as a
prerequisite for the validity of such a marriage that a special licence be obtained. The Piers did
not get that kind of licence and when the marriage turned sour, the validity of the marriage was
questioned. It was held that the presumption of marriage in favour of the legality of marriage is
not to be lightly repelled. The evidence against it or evidence to rebut it must be strong, distinct,
satisfactory and conclusive.

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 Maherdavan V. Maherdavan

Deals with a marriage. Whether it was valid or not valid (formal validity or conforming to the law
of the land)

2. Essential validity: this essentially speaks to people living together as man and wife. This will
go to prove of the ceremony itself. The law here is liberal. There does not have to have been a
ceremony at the Registrars office, it could have been a customary law marriage.

R V. Shaw (1943) Times Law Report 344

This was a case of bigamy where 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 did not bring
evidence to rebut.

3. COHABITATION: This is where a man and woman live together and hold themselves
as man and wife to all whom they interact with. There is a presumption that they are married.
That at some point they got married. Re Taplin

Mary Njoki V. John Kinyanjui Mutheru & Others CA 71 OF 194

Mary Njoki was a girlfriend of the deceased since her university days and his at the school of
law. They were to be seen together during the holidays. He would save some money from his
allowance and send to her at campus. After their graduation they lived together at different
places and then the deceased expired. Njoki sought a share of the deceased estate. This
move was opposed by the deceaseds brothers who argued that she was not a wife. The court
held that the presumption of marriage could not be upheld here. The judges stressed the need
for quantitative and qualitative cohabitation. Long and having substance. They gave examples
as in having children together, buying property together which would move a relationship from
the realm of concubinage to marriage.

Aronegary V. Sembecutty

It was held that where it is proved that a man and a woman have gone through a form of
marriage, the law will presume unless the contrary be proved, that they were living together in
consequence of a valid marriage and not in a state of concubinage.

Case V. Ruguru [1970] E.A. 55

Where the Plaintiff a white man was cohabitating with the defendant after a while the
relationship became sour. It was alleged that the plaintiff sued for eviction of the Defendant on
trespass and to his defence the Plaintiff called evidence that he had actually been married to a
white woman in 1996 and the marriage had not been dissolved. He admitted having lived with
the Defendant for sometime and having paid Kshs 3,000/= as dowry. Evidence showed that
Kshs 3,000/= was not dowry and that no ram had been slaughtered as required by customs.
The court held that as a mere licensee the Defendant was liable for eviction for trespass.

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HOTTENSIAH WANJIKU YAWE V. PUBLIC TRUSTEE C. A. 13 of 76

Yawe, a person from Uganda resident in Nairobi was killed in a road accident in Uganda in
1972. He was a pilot with East African Airways and lived in Nairobi West. After his death, the
Appellant Wanjiku claimed to be his widow and claimed that she had 4 children. Some
Ugandan claimants however denied that she was his wife and that the deceased was not
married. Evidence was called which showed that the deceased lived with the Appellant as a wife
and also when he applied for a job he had named the Appellant as a wife and the two were
reputed as man and wife and cohabited as man and wife for over 9 years.

The Court held that long cohabitation as man and wife gives rise to presumption of marriage
and only cogent evidence to the contrary could rebut such a presumption.

WANJIKU V. MACHARIA [1968]

Wanjiku petitioned for maintenance from Macharia calling to her aid a marriage certificate. The
two had gotten married in 1963, stayed together as husband and wife until the relationship
turned sour. She had testified on oath that she had been married to another man in 1953 or
thereabouts.

The court held that they would not presume marriage because all that was required to rebut
presumption of marriage by cohabitation was some evidence that leads the court to doubt the
validity of marriage. In the words of the court, Wanjiku had no validity of marriage.

KIZITO CHARLES MORAA V. MRS MARY ROSE VERNOUR ALIAS ROSEMARY MORAA.
C.A. NO. 61 OF 1984.

The Appellant sued for trespass and various acts of nuisance and a declaration that the
Respondent was never his wife. The Respondent had been married to a Mr. Vernour who had
fathered one of her children and they had gotten married in a marriage of convenience. She had
been a headmistress and a pregnancy would have embarrassed her. Mr Vernour left for
England whereupon she moved to stay with the Appellant for 4 years and had 3 children.
Trouble started when they had a mentally retarded child. It was argued in court on her behalf
that a presumption of marriage be held. The court held that no marriage could be held and the
marriage between her and Mr Vernour had not been over, she had no capacity to marry and her
cohabitation was adulterous which had unfortunately brought forth children.

IRREBUTABLE PRESUMPTIONS OF THE LAW

Presumption of legitimacy Section 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 (280) 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.

37
Gordon V. Gordon (1903) A C 141

The husband brought divorce proceedings against the wife on grounds of adultery. Divorce was
granted and the custody of the children was given to the husband. The wife applied for variation
on the grounds that one of the children was not the natural child of the father but a son of the
correspondent. The court held that sexual intercourse between a man and wife must be
presumed and nothing can bastardise a child born in wedlock.

Poulet Peerage (1903) AC 395 (Presumption of Legitimacy)

When there is an irrebuttable presumption of the law, you cannot bring evidence here, a child
under 8 cannot commit a crime and a boy of under 12 years cannot know a person carnally.

The reason you have presumptions is to save the court time. On the other hand, there are
some things that should not be brought under court inquisition.

The difference between of law and presumptions of facts.

ESTOPPEL

What are Estoppels?

Estoppel refers to a rule of law whereby a party to litigation is stopped from asserting or
denying a fact. It is a rule of exclusion which makes evidence improve or disprove of a fact
inadmissible. There is said to be an estoppel when one is forbidden in law to speak against his
own act or deed even though that person is trying to tell the truth. For that reason then Estoppel
amounts to a disability which precludes parties from alleging or proving illegal proceedings that
a fact is otherwise than it has been made to appear by the matter giving rise to the disability.
Essentially at a conceptual level estoppel will stop a person from bringing in information, which
should be at variance with actions that this person has engaged in before.

Estoppel has different aspects. You can look at it from adjectival or procedure. The fact
aspect is as a rule of evidence and in this capacity of adjectival procedural realm, it makes
evidence inadmissible.

The second aspect which is still a rule of procedure is as a facet of the law of pleadings. The
party who proposes to rely on estoppel must raise it in the proceedings. If the person fails to
raise estoppel in the pleadings, it can amount to a waiver of the Estoppel.

Moorgate Mercantile Co Ltd v. Twitchings [1975] 3 AER 302

This case is authority for the proposition that you must plead your estoppel.

The Plaintiffs a finance company, were members of an organisation, HP Information Ltd (HPI),
set up to prevent fraud in connection with hire-purchase agreements. Finance Companies
would inform HPI of any hire purchase agreement that they had entered into in relation to a car
so that in the event of a car dealer being offered a car for sale, the dealer could contact HPI to
discover whether it was the subject of a hire-purchase agreement. The Plaintiffs let a car on

38
 hire-purchase to M. By some unidentified mistake or oversight on the part of the plaintiffs, HPI
were not informed of the agreement. M, falsely asserting that he was the owner of the car,
offered it for sale to the defendant, a car dealer. The defendant contacted HPI, who informed
him that the car was not registered with them. The defendant bought the car and later sold it.
The plaintiffs sued the defendant for its conversion. A majority of the House of Lords held that
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.

The third aspect of estoppel is as a facet of substantive law and it can amount to a defence
barring the plaintiff from proving some fact essential to his or her case. Our Evidence Act does
not define Estoppel and the definitions of Estoppel that we have are drawn from case law and
the original source of the word Estoppel which is drawn from French word which means stop!

Law v. Bourveries [1891]3 ch. 82

The case illustrates Estoppel as a rule of evidence and cannot be used to found an action. Can
only be used as a shield and not as a sword. It is a substantive right that can bar a plaintiff from
bringing in a fact;

Some principles as 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 be used to circumvent the law so you couldnt invoke estoppel to render an
invalid act valid or vice versa.

3. Estoppels must be certain and this 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 read in
more than one way. It should lead a person to just one conclusion.

4. It is immaterial whether the makeup of the statement or the representor believes it to be true
or false i.e. if you make a reckless statement which lead people to make reckless statements to
their detriment, you will be estopped.

5. 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

6. 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.

39
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

CRABB V. 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
defendants. And 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 access point
and he also wanted a further right of way from point B. at a site meeting held between the
plaintiff, his architect and a representative of the Defendant, the additional point B was agreed
to. Subsequently the defendants fenced the boundary between their road and the plaintiffs land
erecting gates at B and A. after the Plaintiff sold part of his land together with the right of
access at A and also going with the right of way onto the road, the defendants removed the
gates at B and fenced the gaps. Essentially that blocked the links between A and B 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 along the road. The
trial court held that in the absence of a definite assurance by the defendant no questions of
estoppel could arise. There were no assurances that he would forever have the right of way at
B. consequently the plaintiffs action was dismissed. On Appeal by the plaintiff, it was held that

1. The defendants knowing the plaintiffs intention to sell his land in separate portions by
their representations led the Plaintiff to believe that he would be granted a right of
access at B and by erecting the gate and failing to disabuse him of his belief encouraged
the plaintiff to act to his detriment.

2. Equity should be satisfied by granting the plaintiff a right of access at B and a right of
way along the road.

3. In view of the sterilization of the plaintiffs land for a considerable period resulting from
the Defendants acts, the right should be granted without any payment by the Plaintiff.

There are 4 general classifications of Estoppel

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1. Estoppel by Record

2. Estoppel by Deed

3. Estoppel by Agreement

4. Estoppel by Conduct.

ESTOPPEL BY RECORD

Arises mostly out of judgments and is predicated on the premise that in the interest of the public
there should be an end to litigation. It is important that once a matter is adjudicated upon,
parties do not live in fear of its being subsequently resurrected. After a judgment has been
announced by a court of competent jurisdiction, the unsuccessful party cannot challenge this
judgment by raising the same point in another action against the successful party. The
prerequisites for there to be estoppel by record is that the matter should have been adjudicated
by a court of competent jurisdiction and a matter adjudicated upon by a court of competent
jurisdiction cannot be reopened.

Records refer to both proceedings and judgment and for estoppel to arise the judgment has to
be impeachable so estoppel or record arises when an issue of fact has been judiciary
determined in a final manner between the parties by a competent court and the same issue
comes directly in question in subsequent proceedings between the same parties.

For the purposes of Estoppel by Record judgments are divided into two.

1. Judgments in rem

2. Judgments in personnam

A judgment in rem is an adjudication on the status of a person or a thing and examples of

judgments in rem will be judgments in divorce proceedings, probate proceedings, bankruptcy
proceedings. All these have implications for the status of persons or things. Section 44 (1) of
the Evidence Act defines judgments in rem.

41
 Essentially the judgments are conclusive proof of the matters they adjudicate against all
persons in the world. Not as against any specified persons but absolutely. And as between
parties to the suit it is conclusive evidence for the reasons for the decision.

Judgments in personam are those that do not fall within the definition in S. 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 judgment between the parties
to the proceedings. They do not bind the whole world but only the parties to the proceedings.

Both judgments in rem and in personam give rise to 2 kinds of estoppels

1. Cause of Action Estoppel

2. Issue Estoppel

Course of action, once an issue has been adjudicated the same persons cannot bring it up
again

Course of Action Estoppel is based on the notion that a course of action is dealt with on a
judgment and so parties to the action will be prevented from asserting or denying as against
what was found so if a particular course of action was found to exist or not to exist, the same
parties will not be allowed to revisit the same issue. But note that it should have been the same
parties. Parties can be injured by the finality of this course of action.. a good example is the
case of

CONQUER V. BOOT [1928] 2 KBR 336

In this case the plaintiff had received decision on a course of action arising out of the
defendants breach of a warranty to build a house in a good and workman like manner. It was
held that the plaintiff was estopped from making a claim for further loss (the plaintiff had already
been paid damages) by reason of same breach of warranty which he had suffered subsequent
to the original litigation.

PURSER V. JACKSON [1977] QB

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Where a contract provides for arbitration in respect of disputes as and when they arise an
earlier submission to arbitration does not prevent the submission to arbitration of a dispute
which subsequently arises. The earlier submission operates as an estoppel only in respect of
the matters which it actually covered. If parties agree that they will submit their grievances
when they arise the fact that you have given the matter to arbitration. The estoppel operates
only as estoppel on matters that were covered in the pleadings so you could still bring other
matters.

There are 3 main distinctions

Issue Estoppel applies only to the issues raised and actually determined in the earlier
proceedings. It cannot arise where a party has come into possession of fresh evidence.

With regard however to course of action estoppel it can actually apply not just in respect of
matters that a court was called to decide upon but also matters which the plaintiff exercising due
diligence or reasonable diligence could have brought forward against the defendant. All matters
or claims against the defendants which the plaintiff exercising diligent powers could have
brought forward. Only these will form the basis of the Estoppel.

Whether it be issue estoppel or course of action estoppel the requirement of estoppel by record
are the same apart from the nuances that you go to stay a final judgment, same parties litigating
in the same capacity and same issues. When you talk of same parties estoppel only operates
when the parties are the same as the parties in the original suit. It does not have to be them in
person but it could also be their agents.

TOWNSEND V. BISHOP [1939] 1 AER 803

A plaintiff claimed damages for injuries he sustained while driving his fathers car which collided
with the defendants lorry. In earlier proceedings brought by the father against the defendant, in
respect of the damages to the car the defendant had succeeded on a plea of contributory
negligence on the part of the son who had been active as his fathers agent. The law at that
time was that contributory negligence was a complete defence. On a plea by the defendant or
course of action Estoppel it was held that the parties to the 2 actions being different, the plaintiff
was not estopped from denying his contributory negligence.

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SAME CAPACITY

An Estoppel by record can only arise where parties to the proceedings litigate in the same
capacity as they did in their previous proceedings.

Marginson v. Balckburn [1939] 2 KB 726

There was a collision between Marginsons car driven by his wife as his agent and an omnibus
driven by Blackburn servant. Marginsons wife died, Marginson was injured and several houses
were damaged as a consequence of the accident. Owners of the houses succeeded in an
earlier action for damages against Marginson and Blackburn. It was held that both Marginson
and Blackburn were vicariously liable for the negligence of their respective drivers who were
adjudged equally to blame. Estoppel was alleged and it was held that Marginson was estopped
from denying his wifes contributory negligence in relation to the claim. As her personal
representative he was not stopped from denying her contributory negligence because he
appeared in a different capacity from that which he had litigated before.

Finally on same issues, Estoppel will only operate if the issue with the proceedings in question
is the same in that which was pleaded. The court will refer to the pleadings argued and reasons
given for the judgment.

Randolph V. Tuck [1962] 1 QB 175

MILLS V. COOPER [1967] 2 Q.B. 459

HENDERSON V. HENDERSON [1843 1860] AER 310

LIMITATIONS TO ESTOPPEL BY RECORD

44
1. Matrimonial Cases: Matrimonial causes are not entirely adversarial. Essentially
estoppels in a matrimonial cause will bind the parties to the matrimonial cause but not the court.

Thomson v. Thomson:

Lord Denning

Once an issue of a matrimonial offence has been litigated between parties and decided
by a competent court, neither party can claim as of right to reopen the issue and litigate
it all over again if the other party objects. However the divorce court has the right and
indeed the duty in a proper case to reopen the issue or to allow either party to reopen it
despite the objection of the other party.

If the party objects to reopening of the case, one could not open the issue without going to
court.

In criminal cases the course of action estoppel will be pleaded by the plea of autre fois acquit
(accused was previously acquitted) and autre fois convict (accused was previously convicted).

An accused is estopped from denying his guilt or wrong in a subsequent trial where guilt issue
arises. This is provided for in Section 47 (a)

Robinson V. Oluoch

Queens Drycleaners V. East African com et al

In both these cases the court emphasized that in civil and criminal proceedings, the accused is
estopped from denying the conclusive nature of his conviction i.e. if an accused is found guilty
of dangerous driving, then a subsequent suit if filed for negligent behaviour the accused is
estopped from denying.

A judgment in a civil case is not conclusive proof of matters decided in a criminal case. It would
be admitted as relevant to the issue but standard proof will be much higher.

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 ESTOPPEL BY DEED:

The principle underlined here is that persons who make solemn assertions or engagements
under seal must be bound by those engagements. Parties to a formally executed and sealed
deed and their privies by any evidence which is less formal and solemn.

This Role is subjected to:

1. It only applies between parties of privies to the deed and only in proceedings on the deed.

2. No Estoppel will arise upon recitals or descriptions which are immaterial or not intended to
bind (there will be instances where a recital )

3. No Estoppel arises where deed is tainted with fraud or illegality.

For a recital to a deed to form the basis of estoppel by deed, it has to contain: -

1. Unequivocal statement of facts;

2. There has been a contract as a result of the unequivocal statement;

3. The statement is from both parties;

4. There has to be an action arising from it.

East Africa Power & Dandora Quarries

The Late Justice Channan Singh considered recitals for the basis

46
 A recital especially one relating mainly to the history of the relationship and reasons for entering
into an agreement, is not a term of a contract although it arises of ambiguity in the operative part
a recital may be used to resolve the parts of that ambiguity.

The Plaintiff sued the defendant on a mini consumption agreement for the supply of electricity
under which the defendant undertook to pay the minimum annual charge of KShs. 12,840/- for a
period of 46 months beginning 1st January 1965. The defendant did not dispute the agreement
but claimed that it was void and unforceable for the following reasons:

1. There was no consideration;

2. It was illegal and not in accordance with the charging provisions of the Electric Power Act;

3. Plaint disclosed no cause of action because the plaintiff had at the material time no licence
under the said Act;

4. The Plaintiff argued that the Defendant was estopped from denying the consideration which
was stated in the Agreement as being a request by the defendants that the Plaintiff company
should carry out certain works towards the installation of an electrical energy supply in return for
which the defendant agreed to sign the minimum consumption agreement.

The defendant challenged the Evidence of the plaintiff in regard to a licence to generate or
supply electricity. As a matter of fact the plaintiff did not remit original licences or renewals of
the licence.

The court held that there was no estoppel operating to prevent the defendant from challenging
the considerations stated in the recitals to the Agreement but on the Evidence that the plaintiff
had shown that there was good consideration. And also there was no evidence to rebut the
presumption that the licence granted to the Plaintiff company had been renewed at the proper
time, place and proper procedure. (presumptions of regulation).

Grier V. Kettle

Judgment of Judge Russell on recitals

as the basis for Estoppel.

ESTOPPEL BY AGREEMENT

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This is a rule of evidence whereby two or more persons have expressly or impliedly agreed that
their legal relations shall be based on the assumption that a particular state of facts exists.
Those parties are precluded from denying the existence of the assumed facts. An example of
this kind of Estoppel is found in S. 121 of the Evidence Act the Estoppel of a tenant or a
licencee. It says that no tenant is allowed to deny that at the commencement of the tenancy
that his landlord had title to the property. The section deals with both estoppel of tenant and
estoppel of licensee.

Rodseth V. Shaw [1967]

This involved a tenancy for residential tenancy and when the landlord gave the tenant notice to
quit at a particular time, the tenant sought to introduce circumstances that had prevailed ten
years prior to the commencement of the lease which circumstances incapacitated the landlord
from leasing out the premises. What in effect the tenant was saying was that the landlord never
had title and could not have leased out the

The court held that a tenant cannot deny that the landlord had title to grant the lease at the
commencement of the tenancy if he accepts the agreement or in other words becomes a
persons tenant then he is deemed to acquiesce in the landlords want of title.

Ravi Bin Mohammed v. Ahmed [1957] E.A. 782

Ahmed was a subtenant and he managed to buy the premises for which he was a sub tenant.
The tenant of the main landlord continued asking Ahmed for rent and the question arose as to
whether the first tenant could insist on getting rent from Ahmed on the basis of S. 121. The
court held that NO that first tenant could not continue asking Ahmed for rent because Ahmed
was not estopped from pleading and proving that his landlords title had been determined. In
the words of the Court Estoppel prevents a tenant from disputing a landlords title at the time of
granting the lease not subsequently thereafter. That fact is borne out of the wording of Section
121 to the effect that 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 licence 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 licence was given.

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 NO PERSON WHO CAME UPON ANY IMMOVEABLE PROPERTY BY THE LICENCE OF
THE PERSON THEREOF SHALL BE PERMITTED TO DENY THAT SUCH A PERSON HAD A
RIGHT TO SUCH PROPERTY.

A Licensee will not be allowed to deny that the licensor had the right to the property to which the
licence was granted. (Licence is the relationship between a licensor and licensee)

Under S. 122 - there is the Estoppel of Acceptor of a Bill of Exchanged

S. 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.

It is to the effect that no acceptor of a bill of exchange shall be permitted to deny that the drawer
had authority to draw such a bill or to withdraw such a bill or to draw it. The Acceptor is the
financial institution and the drawer is the person that writes out the bill of exchange or other
negotiable instrument. It is important to point out that the Bank or Financial Institution can deny
the fact that the cheque was drawn by the right person, but the acceptor should not deny the
drawer the right to draw. If the Bill of Exchange is a forgery it is upto the bank to prove it.

S. 123 deals with a variety of estoppels by agreement. The one being between the licensor and
licensee, bailor and bailee, principal and agent. No licensee is permitted to deny that the
licensor had a right to possession of property when the licence was given. Under this section
no bailee will be permitted to deny that the bailor was entitled to the goods at the time he
entrusted them to him. If you are a bailee you will not be allowed to deny that the bailor was
entitled to the goods when they were given to you. The bailee can however show that he was
compelled to deliver the goods to a person who had a right to them as against the bailor. The
bailee can also show that the bailor without the bailees notice obtained notice from a third party
who has now claimed the goods from the bailee (in case of a court order where the goods have
been contested and the person with a superior right may have given the bailor notice that they
will collect the goods and if the notice is not contested then they can have the goods). There
can be third parties who can have superior titles to that of the bailor.

PRINCIPLE & AGENT ESTOPPEL

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 This is to the extent that if you are an agent to whom any goods have been entrusted, you will
not be permitted to deny that the principal was entitled to the goods at the commencement of
the principal/agent relationship. This is provided for in S. 123. If one is an agent and a person
with a superior title gets and order you may be compelled to give the goods to the third party.

ESTOPPEL BY CONDUCT

The conduct should be such as to cause or permit a person to believe a thing to be true and the
person must have acted in some way on this belief. That person must have acted in that belief
either in doing or omitting to do something thereby altering his position to his detriment.

Hopgood v. Brown [1955] 1 ALL ER 450

In this case the Judge said where one person the representor has made a representation to
another person the representee in words or by acts or conduct or being under a duty to speak or
act by silence or inaction with intention actual or presumptive and with the result of inducing the
representee to alter his position to his detriment the representor in any litigation which may
afterwards take place between him and the representee, the representor is estopped as against
the representee from making or attempting to establish by evidence any averment substantially
at variance with his former representation if the representee at the proper time and in the proper
manner objects thereto. It is important to compare Lord Evershed statement with what is
contained in S. 120 under this section one need not have acted to their detriment, suffice it that
they acted.

The requirement for estoppel by conduct can be summarised as follows

1. Representation must be made with the intention that it be acted upon, it must be a wilful
intention.

2. Under the Rule in Hopgood it would go further where you are under a duty to speak, act or
take care, if you make a negligent statement you will be estopped from denying the statements
truth or if you are under a duty to act and you dont take any action then you would be
estopped. You could make a positive representative in the sense that you were expected to act
or speak and you didnt. This failure would be what people relied on and it could give rise to
estoppel.

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Greenwood V. Martins Bank [1933]

A husband and wife had a joint account in Martins bank and the bank undertook to honour
cheques signed by both signatories. Afterwards the account was closed and an account
opened in the sole name of the husband the wife having no authority to draw cheques on that
account of the husband. During all this time the wife repeatedly forged her husbands signature
to the cheques and drew out money which she applied to her own uses. The husband became
aware of these forgeries but was persuaded by the wife to say nothing about them. He kept
quiet for 8 months when he finally decided to report the forgeries. The wife committed suicide.
The husband then brought a suit against the bankers to recover the sums paid out of the sole
account on cheques to which his signature had been forged. The court held firstly the Plaintiff
owed a duty to the defendant bank to disclose the forgeries when he became aware of them as
this would have enabled the bank to take steps to recover the money wrongfully paid to the
wife. Secondly, through his failure to fulfil this duty, the bank was prevented from bringing an
action against the plaintiff and his wife for the tort committed by the wife and thirdly, he had only
brought the matter forward after the death of the wife. The plaintiff was estopped from asserting
that the signatures from the cheques were forgeries and consequently he was not entitled to
recover the money that he was seeking from the bank.

The second requirement is that the representation must be clear and unambiguous. This is to
enable the parties to exactly know the import of the situation.

Century Automobiles v. Hutchings Biemer [1965]

One of the statements made is that the level of precision should not be a lawyers statement.

The representation must be one of fact.

Fourthly the representation must not have the effect of sanctioning something prohibited by law.
Income Tax Commissioners v. A.K. [1964]

The Judge pointed out that no estoppel whatever its nature can operate to annul statutory
provisions because it is statutory duty to obey the law.

51
Chatrath v. Shah [1967] where it was stated that the doctrine that there can be no estoppel
against a statute simply means that an estoppel cannot render valid something which the law
makes invalid so that if a statute declares a transaction to be invalid or expressly declares that
something should not be done, then estoppel cannot be used to override the specific directions
of the law.

PROMISSORY ESTOPPEL:

Promissory Estoppel is an exception to the general rule. It 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 the other person acts upon that. In this instance, an
equitable estoppel arises such that the representor is estopped from denying the representation.

Nurdin Bandali v. Lombank Tanganyika Ltd.

In this case a lorry was bought on hire purchase terms. Buyer was late in one of the payment
but when he later presented the money to the seller, it was later accepted. Just before he
completed paying off the sums owing on the lorry, he was again late in depositing the
payments. The Hire Purchase company seized the lorry and sought to sell it to recover the
unpaid balance. The question arose as to whether the sellers had by accepting payments late
waived their rights under the Hire Purchase Agreement. Consequently was the Hire Purchase
Company estopped from falling back on the Hire Purchase Agreement. It was held that no
waiver or estoppel arose on the facts of the case. But the court recognised that promissory
estoppel did indeed exist in East Africa in the Judges view, the word thing, used in S. 120 was
capable of wide interpretation and could comprise an existing state of affairs, legal relationships
or future conduct. And in stating that, the Court relied on the High Trees case Central London
Property Trust Ltd. V. High Trees House Ltd [1947]KB 134

In this case, by lease under seal dated September 24 th 1937 the Plaintiff let to the defendant a
block of flats for a term of 99 years with effect from 29.9.1937 at a rent of 2500 per annum.
Owing to the second world war, in the early part of the 1940s only a few of the flats were let,
and it became apparent that the defendant would be unable to pay the rent reserved. After
negotiations between the directors of the two companies, on 3rd January 1940, a letter was
written by the plaintiff to the defendant confirming that the rent for the premises would be
reduced from 2500 to 1250 essentially by half as from the beginning of the term. The
Defendant paid the reduced rent. By the beginning of 1945 all flats were let out and in
September of 1945 the Plaintiff wrote to the Defendants claiming that rent was payable at the

52
 rate of 2500. Thereafter, the Plaintiff initiated some friendly proceedings to claim the difference
in rent for September to December 1945 quarter. In their defence the defendants pleaded that
the agreement for the reduction of rent operated for the whole term of the lease and the plaintiff
was estopped from demanding rent at the higher rate. It was held that where parties enter into
an arrangement which is intended to create legal relations between them and in pursuance
thereof one party makes a promise to the other, which he knows will be acted upon, and which
infact is acted upon 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 though the promise may
not be supported by consideration in the strict sense. The effect of the arrangement may be to
vary the terms of the contract under seal by one of less value.

The second holding was that the arrangement between the parties in 1945 was one which fell
within the first category, i.e. where you made a promise and were bound by the promise and so
the agreement of the promise was bound on the promisee but it only remained operative so long
as the conditions giving rise to it continued to exist and once those conditions ceased to exist in
1945 the plaintiffs were entitled to recover the full rent claimed at the rate reserved by the lease
document.

In Century v Hutchings the issue of promissory was also discussed

(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.

Authorities are not in agreement but essentially that estoppel could be a principle of procedure
and it could have aspects of substantive law where it could debar a person from raising a
defence open to them. So you can have estoppel as a rule of procedure or as substantive law.
The case of Law v. Bouvaries Estoppel is perceived as an aid to prove not as being essentially
a principle on which you could found a case but in Canada v. Dom the court felt that Estopel
could be viewed as substantive rule of law.

Combe v. Combe discusses these elements on what the place of estoppel in law is, is a rule of
evidence or substantive law.

PRIVILEGE & PUBLIC POLICY

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These are matters that need not be adduced and are precluded by public policy. They are
discluded from disclosure by public policy. The person with the information cannot waive the
right not to disclose information. You are obliged to insist on none disclosure. The court may on
its own volition object to such matters being adduced in evidence.

If a matter is discluded from public disclosure, even matters of secondary evidence cannot be
adduced

Section 131. Whenever it is stated on oath (whether by affidavit or otherwise) by a Minister that
he has examined the contents of any document forming part of any unpublished official records,
the production of which document has been called for in any proceedings, and that he is of the
opinion that such production would be prejudicial to the public service, either by reason of the
content thereof or of the fact that it belongs to a class which, on grounds of public policy, should
be withheld from such production, the document shall not be admissible.

PRIVILEGE

Privilege as against public policy is personal to whomever it is conferred upon and can therefore
be waived. If you have a privilege you could decide to waive it. The information in respect of
which you could waive if it comes to the possession of a 3 rd party, the 3rd party can disclose the
information. Privilege is personal to whom it is conferred. It is not the information that is
privileged, it is the person. Communications during marriage are privileged (S. 130) in a
situation where two parties are married, they enjoy the privilege. If the husband discloses to the
wife that he committed a crime, the wife is privileged but if a wily housemaid overhears the
conversation, she can disclose.

Public policy requires that if you are possessed of information, it is not to be disclosed.

Privilege may be broadly divided into two parts; private and official.

Official privilege flows from the official status of a person. It includes the privilege of judges and
magistrates, public officers in connection with official information. A Police Officer can claim
privilege in court not to disclose his source of information.

Privilege of an accused person against self incrimination, privilege of witnesses, spouses and
legal professional privilege. Privilege is granted to the client in an advocate/client relationship.

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 CATEGORIES OF PRIVILEGE:

1. Privilege of accused persons Article 50 of the Constitution read together with Section 127 (2)
of the Evidence Act spell out that an accused person shall not be compelled to testify at his trial.

Where an accused has been compelled to fill a form i.e. in tax matters, could an accused
person be compelled to disclose the information.

El Mann V. R [1969] E.A. 357

The accused had been required to answer certain questions for income tax purposes. He had
no choice but to fill the questionnaire because failure to do so would have been an offence. The
form disclosed certain offences. Counsel for accused objected to use of the information and
called to his aid Section 77 of the constitution which enshrines privilege against self
incrimination. The matter was taken to constitutional court which ruled that Section 77 was
clear and unambiguous. It referred to the accused not testifying at his trial and did not refer to
places outside the trial. Filling out the questionnaire was not a trial and therefore not covered
under Section 77.

Private privilege of witnesses Section 128.

To the effect that a witness is not privileged from answering questions that will incriminate
him/her or expose witnesses to penalties. The privilege is that the answers they give during trial
will not be used against them so that there can be free flow of information. The information can
only be used on prosecution for perjury.

PRIVATE PRIVILEGE OF SPOUSES S. 130 (1)

No spouse can be compelled to disclose any information made to her/him during marriage.
There are however exceptions to this rule.

(i) Cases involving one in the offence of bigamy;

(ii) Where you have offences against morality if one spouse is charged with an offence against
morality. If one spouse is charged with an offence against morality privilege does not hold.

55
(iii) Offence or torts involving persons or property or any child to the marriage. The privilege is
to the spouse not on information. If the information comes to a 3rd party, privilege does not
arise.

Rumping V. D.P.P. [1964] A.C.

In this case Rumping was a Dutch Seaman charged with murder. He gave a letter to a
shipmate to post to his wife outside England. The letter contained a confession to the offence of
murder. The letter was turned over to the police and the objection was raised on the
admissibility of the letter on the grounds of spousal privilege. The court held that the letter was
admissible in evidence because the privilege is inadmissible where the letter has been
intercepted by 3rd parties.

Section 1230 (2) in this section marriage means a marriage, whether or not monogamous,
which is by law binding during the lifetime.

LEGAL PROFESSIONAL PRIVILEGE S. 134 OF EVIDENCE ACT

1. The upshot is that an advocate will not disclose communication made to them by their
client. Not to disclose documents provided by clients or legal advice given to the client.
It is a professional privilege.

Section 134 (1) (a) (b)

There are exceptions to the rule communication made in furtherance of illegal acts is an
exception. If an advocate observes a fact which shows that a crime has occurred, since the
commencement of the advocate/client relationship they can disclose that information. The
exception delimits the purview of client relationship. The client can expressly consent to
disclosure then the advocate can disclose.

Omari s/o Hassan V. R. (1956) 23 E.A.C.A 550

The Appellant was convicted of murder and evidence rested entirely on 2 statements by the
deceased that the accused was one of the persons who had attacked him. The trial judge after
directing himself that such a statement should be accepted with caution found that there was

56
corroboration in the Appellants refusal to testify particularly the accused informed the court that
refusal to testify was against his professional advice.

On Appeal it was held that although the judge was entitled to take into account a refusal to give
evidence on oath, such refusal to give evidence cannot bolster a weak case of relief the
prosecution of the duty to prove its case beyond reasonable doubt. Secondly the disclosure by
the advocate that the accused had refused to follow his advice was a breach of professional
confidence and the judge should not have allowed it to affect his professional mind.

R V. King (1983) 1 AER 929

Under Section 135 of Evidence Act the legal professional privilege is extended to legal clerks or
other servants. Section 136 therefore is a provision for waiver of the privilege and under that
section just agreeing to give evidence on the part of the client does not amount to waiver of the
privilege but if as a client you call on an advocate or his staff, you will be deemed to have
waived your privileges.

Section 137.

Reaffirms the privilege given to the client in Section 134 and makes it clear that the privilege is
for the client and not the advocate.

Section 138 PRIVILEGE OF WITNESS IN CONNECTION OF TITLE DEEDS

A witness not a party to proceedings cannot be compelled to disclose or produce any

documents of title relating to his property.

Section 139

Deals with privileged documents in possession of another nobody can be compelled to

produce documents in his possession which another person will be entitled to produce if they
were in his possession.

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The person who should legally be in possession of that document could consent to its being
availed.

Secretary of State For Defence & Another v. Guardian Newspapers:

British Steel Corporation v. Granda Television Ltd.

Privilege will emanate from a persons official status vis--vis personal status. It is accorded to

1. Judicial functionaries Section 129 Judges and Magistrates cannot be compelled to

disclose except by a higher court which can compel them to disclose any matters which
came to their knowledge in their official capacity. They may however be compelled to
give evidence in a matter they observed in the course of doing something else.

2. Public Officers Section 1232.

Public officers shall not be compelled to disclose communications made to them by any person
in the course of their duty if they consider that the public interest will suffer or be prejudiced by
the disclosure.

Dhukale v. Universal TOT CO. et al (1974) E.A. 395

Rishen Chand Mohindra V. Mathra Dass

Section 133

No judge, magistrate or police or revenue officer can be compelled to disclose the name of
his/her informants on the commission of an offence. This assists in people giving information
freely.

Kapoor Singh s/o Harman Singh V. R

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Where the Appellant was convicted over the unlawful possession of gold. Police received
information from an informer and when they searched the house, it revealed that he was
actually in possession of gold. The accused attempted to obtain the name of the informer
during trial but he was overruled.

In Appeal it was held that this is a clear and mandatory section and there was no discretion on
the court to compel the policeman to disclose the source of information.

Njunga V. R. (1965) E.A. 773 (K)

The accused was driving a disguised motor vehicle, he was chased and apprehended. It was
held that if he Evidence on which the court is relying is damaging.

The police had been informed that under the drivers seat there were arms and when
apprehended, there were actually arms under the seats. The accused was charged with being
armed and with the intent to commit a felony. The court did not think that there was enough
evidence of intent to commit a felony and that the informer should be brought to testify.

Section 131 delimits parameters of public policy. It outlines procedure to be followed when the
state wishes to claim that the documents should not be produced lest they be prejudicial to the
state. The Minister must state that he has examined the contents of the documents. He must
state that such documents formed part of official public records. That after examining the
document that he has formed the opinion that its production would be prejudicial to the public
interest either by reason of its contents or because of the class to which it belongs and all these
things have to be stated on oath.

You are protecting secrets of the state disclosure of which would affect public policy. The
danger has been that the privilege can be abused where government dignitaries proclaim all
documents to be prejudicial and this had made courts in England ill disposed and they say that
the courts have the duty to make up its mind and decide whether the documents are prejudicial.

Duncan v. Camwell,Laird & Co. Ltd.

Claim for negligence in relation to construction of a submarine

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 Re Grosvenor Hotel London No. 2

Conway v. Rimmer

It is not all about a ministers decision but the court can look at the documents to see whether
they should be withheld. The judge comes in to vindicate the public in free flow of information.

Section 131 The ministers word is final appears to be final.

Mudavadi v. Semo High Court Election Petition:

Court said that the use of the words shall not leaves no discretion to judges to disagree with
the ministers decision.

ILLEGALLY OBTAINED EVIDENCE

Evidence which is obtained by means or acts which are illegal or against the law.

How does a court faced with illegally obtained evidence deal with the evidence, for example
evidence obtained in violation of the constitution? It could also be evidence obtained in breach
of other statutes

A common way in which evidence is obtained illegally is through illegal searches and illegal
seizures e.g. breaking into somebodys house and obtaining evidence, through deception,
threats, bribes inducement or trickery.

The issue has to be looked at in two ways

1. Section 20 of Police Act

2. Section 118 of Criminal Procedure Code

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 S. 118 of the Criminal Procedure Code deals with the power that is given to search places. The
power that a Magistrate or police officer may be permitted to search any place, building, ship,
aircraft, vehicle, box or receptacle but they have to do this through a certain procedure i.e.
Search warrant. Essentially if you search and find something you are allowed to seize it. It
could be a thing or document. If you do not have a search warrant the search may be said to be
illegal.

Section 20 of the Police Act empowers police officers investigating offences to search any place
that they believe has material necessary for the purposes of the investigation. The requirement
to get a search warrant may be dispensed with in instances where a police officer believes that
the process of getting the warrant is going to cause unreasonable delay. In these instances
what is required is that the officer should record in writing the basis upon which they form the
opinion that if they go looking for a search warrant there is going to be inordinate delay.

There are two approaches to illegally obtained evidence

1. Mandatory inclusion;

2. Mandatory Exclusion

Under common law jurisprudence there is mandatory inclusion whereas under US

Jurisprudence there is Mandatory Exclusion.

In common law the status is accurately represented by the following words it matters not how
you get it, if you steal it even, it would be admissible in evidence statement by Justice
Crompton in R V. Leatham The only exception that is entertained under common law is where
the evidence consists of a confession which has been obtained in consequence of some
inducement or oppression. Even though Crompton says it does not matter how you get it, it will
matter if there is inducement or oppression.

A confession that is obtained as a consequence of the deception or inducement of the person

confessing is not admissible even though it be relevant. E.g. a confession made to a colleague
to a person in jail has been held not to be confessed to a person in authority.

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In civil cases there is no discretion to exclude admissible evidence. But even in criminal cases
there is a conflict between 2 positions i.e. where you admit all relevant evidence to ensure that
the guilty are punished and then there is the view that to admit improperly obtained evidence
condones and encourages impropriety on the part of the police. i.e. why go through proper
channels if you can obtain evidence illegally. There is no provision in the Evidence Act to guide
us. For instance if somebody got evidence through phone tapping is it admissible?

We look to the constitution which protects persons against being subjected to the search of their
person or property without their consent. It also protects against entry to your property by
others without your consent.

Under common law, there is the proposition that all relevant evidence is admissible regardless
of the fact that it was obtained illegally. Is this a good way to view evidence in light of sometimes
the excesses that police can be prone to? A person may be accused but they still have certain
rights. It is better that 99 guilty people go free than one innocent person to be found guilty. It is
much better that one occasional criminal go free than to condone illegal procuring of evidence.

Evidence which is relevant to a fact in issue is relevant no matter how it was obtained.

Lloyd V. Mostyn 1842 10 M&W 478 where Chief Justice Goddard says that the test to
be applied in considering whether evidence is admissible is whether it is relevant to the
matters in issue. If it is, it is admissible and the court is not concerned with how the
evidence was obtained. This case was quoted with approval in the case of Kuruma s/o
Kaniu v. R 1955 1 AELR 236 The Appellant was convicted with being in unlawful
possession of two rounds of ammunition contrary to Regulation 8 of the emergency
regulations of 1952. Under the Emergency Regulations only a police officer or an officer
above the rank of assistant inspector was empowered to stop and search an individual.
The appellant was an employee of a European settler farmer and had been granted
leave of absence to go to his rural home in the reserve. He was stopped at a roadblock,
a police constable stopped him and on searching him found him with the two rounds of
ammunition and a penknife. 3 persons witnessed the search but were not called to
testify. The accused was charged and convicted of this capital offence and sentenced
to death. He appealed contending that the evidence used to convict him was illegally
obtained. The court held that the evidence was properly obtained in line with Justice
Crompton statement in Lloyd v. Mostyn.

King V. R 1969 1 AC 304

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 Police obtained a search warrant to search a house belonging to one Joyce Cohen looking for
Ganja and this was under the Dangerous Drugs Act. They read the warrant to Joyce Cohen but
apart from Joyce Cohen, there was the Appellant in Joyce Cohens House when the police
came and they did not read the warrant to the visitor. The police however searched the
appellant and another man in the house and they found the appellant with the drug. The
Appellant was tried and convicted for possession of dangerous drugs and he appealed arguing
that the warrant was not directly read to him and thus he was not legally searched. The court
should have excluded the evidence found on his person because the evidence was unfair to
him. The court held that there was no way of interfering with the way in which the court
exercised its discretion and the court went further to say that this was not a case in which
evidence had been obtained by conduct which was reprehensible insinuating that if the conduct
had been irreprehensible the court would have allowed the appeal. There was a bit of
discussion about constitutional rights concerning illegal searches.

The court in R V. King referred to the case of R v Payne [1963] 1 AER 848 Where illegally
obtained evidence was excluded but it refused to be guided by this case. The facts of this case
are that the defendant was taken to a police station following a traffic accident. He was asked
whether he wanted to see a doctor, he agreed to see a doctor. At no time had he been told that
the results of the examination might be used in evidence against him. It was not made clear to
him that the doctor would enquire on whether he was fit to drive. At the trial for drunk driving the
doctor gave evidence that the driver was driving under the influence of alcohol and the
defendant was convicted. He appealed. The appeal court quashed the conviction on the
ground that even though the evidence was admissible, had the accused realised that the doctor
would give evidence on the matter of driving under the influence of alcohol, he might have
refused to submit himself for examination and in refusing to be guided by this case, the court in
King v R stated that there was no evidence in the Kings case of oppressive conduct or trickery
on the part of the police. The court essentially seems to be saying that illegality is graded, ie.
That there is illegality that can be allowed to pass but there are cases when it is reprehensible.

Jeffrey V. Black [1978] QB 490 The defendant was arrested by 2 police officers of the drug
squad for stealing a sandwich from a public house. The officer improperly searched his home
and found Cannabis and the defendant was subsequently charged with possession of drugs.
The accused put up in his defence that his house was searched illegally. The first court ruled
out the evidence of the search as inadmissible having been illegally obtained. The prosecution
appealed and the appeal was allowed. The Appeal court held

1. That the mere fact that evidence is obtained in an irregular fashion does not of itself
prevent that evidence from being relevant and acceptable to court;

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2. Any court has the discretion to decline to allow any evidence brought by the prosecution if
they think it will be unfair or oppressive to allow it.

R V. Sang [1979] 2 AER P 1222

The Appellant was charged with conspiracy to utter forged US Bank Notes. He pleaded not
guilty before the case opened. Counsel for the Appellant applied for a trial within a trial to show
that the Appellant had been induced to commit the offence by a police informer acting on the
instructions of the police. The appellant was averring that for the inducement, he would not
have committed the offence. Counsel was hoping to persuade the judge to exercise his
discretion to disallow the evidence of the commission of the offence. The Judge however ruled
that he had no discretion to exclude the evidence. The appellant changed his plea to guilty and
was convicted and sentenced. He appealed against the judgment and the appeal was allowed
by the court of appeal and then the state appealed to the House of Lord. The House of Lord
held that

1. A Judge in a criminal trial always has discretion to refuse to admit evidence if its prejudicial
effect outweighs its probative value;

2. Except in the case of admissions, confessions and evidence obtained from an accused
after the commission of an offence, a Judge has no discretion to refuse to admit relevant
admissible evidence merely because it had been obtained by improper and unfair means.

3. The use by the police of an agent provocateur or an informer to obtain evidence was not a
ground on which the discretion should be exercised. Such a factor may however be considered
in mitigating the sentence imposed on the accused.

4. The defence of entrapment had no place in English Law and could not be accepted by a
Judge as a ground for exercising the discretion to exclude the prosecutions evidence of the
commission of the crime.

It would appear that the R v. Sang articulates the common law stand succinctly if evidence is
relevant to a fact in issue it is admissible provided it is not obtained under inducement,
confession or after the commission of an offence. The common law position is almost the
opposite of the position which exists in the US Today. The US Jurisprudence tries to run away
from the law. The law that is used to exclude illegally obtained evidence is the 4 th Amendment
which reads as follows:-

the right of the people to be secure in their persons, houses, favours and effects against
reasonable searches and seizures shall not be violated and no warrant shall issue but upon
probable cause supported by oath or affirmation and particularly describing the place to be
searched and the persons or things to be seized.

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The question as to whether illegally obtained evidence is admissible in the US has been
debatable.

Weeks V. United States 232 US 283

The police went to defendants house without warrant, they searched and took possession of
various papers and articles that they found in that house and these were turned over to the
courts. The police later went to the premises hoping to get more evidence and carried away
more letters and this second search was also without a warrant. The whole question as to
whether evidence obtained by the police and the prosecutor was admissible was discussed and
the judges stated if letters and private documents can thus be seized and held and used in
evidence against a citizen accused of an offence, the protection of the 4 th Amendment is of no
value.

This was a Supreme Court Decision .

In Wolfe V. Colorado it was suggested that there was need for a uniform rule, even after the
Weeks case the courts had continued to apply common law rules and in this case of Wolfe the
court decided to have a uniform rule.

Map V. Ohio 367 US P 643

The defendant was convicted in an Ohio state court for possession of obscene literature. The
conviction was affirmed by the Ohio Court of Appeal and later by Ohio state supreme court. The
obscene materials were discovered during a search that was not subject to a warrant on the
defendants house. The Ohio supreme court held that evidence obtained by an unlawful search
and seizure is admissible in a criminal prosecution. The court continued to state that under the
Supreme Court of United States in Wolfe v. Colorado a state was not prevented by federal
constitution from adopting the rule as it prevailed in Ohio. On appeal to the US Supreme Court
it was held that as a matter of due process evidence obtained by a search and seizure in
violation of the 4th amendment is inadmissible in a state court as it is in a federal court. If the
supreme court holds evidence to be inadmissible it should apply across the board.

The US Courts have gone even further and held that even if the evidence is not obtained
illegally, where such evidence is obtained in such a manner as to be reprehensible according to

65
the spirit of the constitution, such evidence shall not be admissible. Note the importance that
jurisprudence attaches to peoples rights.

In Kenya the reigning position is that in Kuruma s/o Kaniu v. R. This Case has been criticised
in the context within which it was decided. It was decided during emergency regulation times.
The position seems to be that the end justifies the means.

DOCUMENTARY EVIDENCE

Read Sections Section 64 106 Evidence Act Cap 80 Laws of Kenya

Sections 65, 66 79 - the whole question of how proof of documentary evidence differs from oral
evidence. How do you prove a private document from a public document. When is secondary
evidence of documents permissible

Use of extrinsic evidence in interpretation of documents.

What is a document?

No definition of document in Kenya Evidence Act

As a general definition, OSBORN defines document as:-

Something on which things are written, printed or inscribed and which gives information; any
written thing capable of being evidence.

India Evidence Act

any matter expressed or described upon any substance by means of letters, figures or marks,
or by more than one of those means, intended to be used, or which may be used, for the
purpose of recording that matter.

Tanzania Evidence Act

Document means any writing, handwriting, typewriting, printing, Photostat and every recording
upon any tangible thing, any form of communication or representation by one of those means,

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 which may be used for the purpose of re-cording any matter provided that such recording is
reasonably permanent and readable by sight.

Define a Document

There is no definition of a document in the Evidence Act Cap 80 and so the definition we shall
use is from a dictionary

A document is any written thing capable of being evidence irrespective of where such writing is
inscribed.

Interpretation and General Provisions Act Cap 2 defines a document as including any
publication in any matter 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 purposes of recording the matter.

A document covers a broad spectrum of things, it could be what might be written on a tomb
stone, it could still satisfy the definition of a document, even a tattoo on someones body.

For purposes of evidence documents are divided into 2

1. Private Documents;

2. Public Documents;

A Public Document is defined at S. 79 (1) (a) it is defined to include documents forming the acts
or recording the acts of the sovereign authority; they will be also documents of official bodies
and tribunals. They will be records of or recording acts of public officers whether legislative,
judicial or executive, whether of Kenya or of any other country.

Under S. 79(2) All documents other than public documents are private. it is decreed that public
records which are kept of private documents would also constitute public documents. For

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instance at the Registry of Births and Deaths people get documents that are private in nature
but the Registrar has a record of what birth certificates or deeds have been issued so the
register of these private documents would constitute a public document.

PRIVATE DOCUMENT

They are all documents, which do not fall within the definition of public documents. They do not
constitute what is defined at S. 79 (1) (a) and (b). For example where you have a record of a
contract between two parties, that would be a private document.

The question then is what to do when faced with a document as evidence. The first thing is to
establish whether a document is genuine. Is it a true record of what the parties agreed to?

How do you proof that a document is genuine - this will be predicated on whether it is a public
or private document. For public documents, it is easy because the law has devised
presumptions in relation to public documents. Public documents are much to deal with in terms
of genuineness because of the presumptions that relate to public documents.

For private documents there is a distinction whether they are attested or not attested.
Attestation signifies the witnessing of appending of a signature to a document and this act is
used to differentiate private documents. Where you have attested documents, you get into an
inquiry whether it was attested, because the parties opted to have it attested to. You distinguish
documents attested to as a legal requirement and those attested to because the parties chose
to have them attested. Where for example you have a land sale or mortgage, there is a legal
requirement that they be attested.

To prove the execution of an attested document, you need to call the attesting witness. The
party that witnessed the appending of the signature to that document only if they are alive,
capable of giving evidence and subject to the court proceedings. What might make one unable
to give evidence? If a person is deranged or have lost their memory, they cannot give evidence.
Section 71 of Cap 80.

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 Why does one call the attesting witness? To give benefit to the other party by giving them an
opportunity to cross-examine the attesting witness as to the circumstances in which they
attested the document. The law has devised certain instances when it is not necessary to call
the attesting witness. There are at least 7 instances.

1. Where the document has been registered in accordance with legal provisions, the
assumption is that by the time the document was registered, the matter of attestation was
looked into and is therefore a non-issue. This is provided for as the proviso to Section 71 which
reads 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.
The proviso 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.

If there is no contestation, then you do not need to call the attesting witnesses. The calling of
attesting witnesses would be a waste of the courts time.

2. If the execution of the document is admitted by the executant; i.e. where the person
who is bound by the document is not contesting the validity of the document. This is provided
for at S. 73 of the Evidence Act. 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.

3. If the attesting witness denies or does not recall the fact of having attested the
document, there is no need to call the witness and the document has to be proved by other
evidence. Section 74.

4. Where the document is in the possession of the adverse party who refuses to
produce it after a notice to produce has been given, you need not call the attesting witness.
In that case secondary evidence of the document may be tendered. Allowing secondary
evidence is an exception and by allowing secondary evidence you are dispensing with need to
call the attesting witness and the adverse party knows that the document will be against his/her
best interest.

5. When the document is 20 years old and is produced from proper custody, it is presumed by the
court to have been attested to and executed by dint of its age.

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 6. When the apparent or ostensible executor of the document has been using it in other cases it is
assumed to be a valid document. The Executor is basically saying that all is fine with the
document.

7. When the adverse party produces a document, which he claims an interest under the document
in question then the document wont need to be attested. (the adverse party validates the
document)

If a document does not fall within the 7 instances and where the attesting witness is not
available or where the attesting witness is incapable of giving evidence, then to prove the
document, it has to be established that the attestation of one attesting witnesses is in his/her
handwriting. This is provided for at Section 72 which reads 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.

How do you prove Handwriting?

Section 70 buttresses the points aforementioned.

Handwriting can be proved in 4 ways

1. Where the writer of the document testifies that the document is in their handwriting.

2. You may need to call a witness who has acquired knowledge of a persons handwriting
this is done in different ways

(i) If you have seen the person write; there has to be proximity

(ii) If youve been receiving documents purporting to have been written by that person in
answer to documents written by you or under your authority, you can be said to have acquired
knowledge of that persons handwriting;

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(iii) When in the ordinary cause of business, documents purporting to have been written by
that person have been submitted to you. For instance, if you are a persons secretary or copy
typist, documents written by that person would be submitted to you.

3. Calling an expert which is provided for in S. 48 of the Evidence Act, you need to compare
documents admitted as evidence with documents written by that person.

4. Comparison by the Court under the provisions of Section 76 of the Evidence Act. This is
where you call the person to write in court and then the court will compare the handwriting with
that in the document in court.

5. You can prove handwriting if parties against whom document is tendered admit that the
handwriting on the document in question is that of the person who is purported to have written it.

With public documents, proof of their genuineness is not as complex because of the
presumptions that there are about public documents. The presumptions help to dispense with
prove. Look at section 82 through to 96.

The principle with regard to public documents is established at Section 80. Public Documents
may be proved by certified copies. Under S. 80(2) there is definition of who the public officer
would be. any officer who by the ordinary course of official duty is authorised to deliver copies
of public documents shall be deemed to have the custody of such documents within the
meaning of this section.

Under Section 81 certified copies of a public document may be produced in proof of the
contents of the document.

What is a Public Document?

In the case of Tootal Broadhurst Lee Co. Ltd v. Ali Mohammed [1954] 24 K.L.R 31 This was
a case for damages for infringement of a design registered in Great Britain. The Plaintiff relied
on a document bearing the seal of the patent office of Great Britain purporting it to be a copy of
the certificate of registration of the design. Two questions arose, was the document a public

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document which could be proved through certified copies? Whether you would need to have
the document itself or did a certified copy suffice. The court held that the certificate of
registration being a document issued by authority of law, by a public officer is necessarily a
public document. Secondly, that a certificate of registration does not come within the category
of public documents which can be proved with means of certified copies. Essentially what the
court was ruling is that this was not a public document within the meaning of S. 80(1) and could
not be proved by a certified copy

In the words of the court

It is not however, all public documents that can be proved by means of certified copies but only
those which any party has a right to inspect.

Essentially even though a document may seem public.

PROOF OF THE CONTENTS OF A DOCUMENT

This can be done through primary or secondary evidence. For public documents, you could use
either primary or secondary evidence whereas the contents of a private document can only be
proved by primary evidence except in instances where S. 68 of the Evidence Act allows use of
Secondary Evidence.

WHAT IS PRIMARY EVIDENCE?

Primary Evidence would be the document itself produced in court for court inspection and
perusal. Secondly primary evidence could be in the instance where a document is executed in
several parts then each part is going to be primary evidence of the document and this
contemplates a situation where you have a tenancy and a landlord and both their parts are
essential for an agreement. Thirdly where a document has been executed in counterpart and
some of the parties have only signed the counterpart each counterpart is primary evidence
against the parties executing it. An example is a letter of offer of employment which gets to you
in a number of copies, the employer signs the copies and when you receive you are supposed
to sign them and keep one. Fourthly where documents are made by one uniform process each
is primary evidence of the other. For instance when you buy books or newspapers, you cannot
say that one is more authoritative than the other each will be primary evidence.

The categorisation is provided at Section 65 of E.A.

WHAT IS SECONDARY EVIDENCE

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 Section 66 of E.A. gives examples of secondary evidence to include

1. Certified Copies (defined at 80(1)

2. Mechanical Copies of the original, these include photocopies or sacrostyled copies.

3. Copies compared with the mechanical copies; read word for word to certify correctness.

4. Copies made from or compared with the original.

5. Counterparts of Documents as against parties who did not execute them; In the
employment contract, offer is signed by employer acceptance by the employee.

6. Oral accounts of the contents of a document given by a person who has seen it.
Mechanical copies are favoured more than oral accounts which are often tainted by ones
perception of the issues.

WHEN IS SECONDARY EVIDENCE ADMISSIBLE?

Section 67 is the basis of what is called the best evidence rule, the provision that documents
must be proved by evidence. The allowance of secondary evidence is a concession by the law
to allow the second best. The optimal will be to have the document itself or whatever would
comprise the primary evidence. It is rarely the case that secondary evidence is permissible
where you could bring in primary evidence.

Section 68

Secondary evidence is permissible when

1. The original is in possession or power of the adverse party;

2. It is in the possession of a person outside the courts jurisdiction; you could not enforce
the requirement that they produce

3. When in possession of a person who is immune from the courts process; or any person
not legally bound to produce the document. Section 68(1) (a) (iii).

In all these instances, if a notice to produce the document is served on the person, and they do
not produce the original, secondary evidence of the document may be given. Essentially you

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 give a notice to produce and you will be seeking the best evidence and only when you fail to get
the best evidence you could go ahead and produce secondary evidence.

There are certain cases where the law does not require that you give a notice to produce.

1. Section 69 Notice is not needed when the document is itself a notice then you do not give a
notice to produce. There is no essence of notifying the person if what is required is a notice
itself. This is to avoid redundancy because if the document is a notice of motion, you need not
give another notice.

2. When from the nature of the case the adverse party knows that he will be required to produce
the document.

3. When it appears or it is proved that the adverse party received the documents by fraud or force;

4. When the adverse party or his agent has the original in court;

5. When the adverse party or his agent admits the loss of the document;

6. When the person having the document is out of the courts reach or immune from the process

7. In any other case where the court thinks fit to dispense with this requirement.

Lakman Ramji v. Shivji Jessa & Sons (1965) E.A. 125

This case considered a situation where the document was in the power and possession of the
adverse party. It was a suit for the payment in respect of extra work done under a building
contract. the case for the defendant was that it had been agreed between the parties that a set
sum would be accepted in settlement and that a cheque had been tendered and accepted.
Evidence at the trial showed that the cheque was sent to the applicant in an envelop with a
letter which stated that the cheque was in full and final settlement. The Applicant agreed that

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 there was such an agreement but alleged that he had only received the cheque without a
covering letter. A Carbon copy of the letter was produced and the trial court relied on it, together
with a receipt at the back of the cheque. On Appeal the question was whether the evidence of
the carbon copy had been properly received. It was held that in the circumstances it was not an
unreasonable inference that the Applicant had received the covering letter. The court relied on
S. 68 and 69

Sugden V. Lord St. Leonards (1876 QBD 15

The deceased made his will 5 years prior to his death. During the last 2 years of his life, he was
sick at this time, his daughter kept the box which contained the will. She constantly opened the
box and read the wills contents. Unfortunately the will got lost and could not be found. At the
trial, it was claimed that she could recite the contents of the will and her solicitors suggested that
she write out the purport of the will from her recitation. The question was whether this transcript
of the Will was admissible as secondary evidence of the lost will? The court held Yes it was
admissible as secondary evidence.

WHEN CAN SECONDARY EVIDENCE BE TENDERED

1. Essentially you can use secondary evidence where a notice to produce is given
contemplated at S. 69(i) of the Act. when the document to be proved is itself a notice.

2. The second instance where secondary evidence is allowed is where the existence
condition or contents of the original are shown to have been admitted by the adversary or his
representative. There is no contestation so you can produce secondary evidence.

3. When the original has been lost or destroyed or when the original cannot be produced
within a reasonable time for reasons other than the fault of the person who wishes to rely on it.
In this case destruction or loss has to be testified to by witnesses who saw the document
destroyed or have knowledge of its loss. The destruction or loss is a matter to be ascertained
by the Court and once it is ascertained that the loss occurred without the fault of the person
seeking to rely on the evidence, secondary evidence can be tendered.

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4. When the original is of such a nature as not to be easily movable for instance writings on a
building.

5. When the original is a public document for which a certified copy may be tendered.

6. When the original is a document of which a certified copy is allowed by the Evidence Act
or any other law.

7. When the original consists of numerous accounts or other documents which cannot be
conveniently examined in court and the fact to be proved is a general result of the whole
collection, the secondary evidence may be given.

EXCLUSION OF ORAL EVIDENCE WHERE A DOCUMENT IS AVAILABLE

Section 67 provides that contents of all documents should be proved by primary evidence.
Essentially the law is giving effect to what parties do i.e. to perpetuate the memory of that which
they have committed themselves to and also to guard against fraud. The general rule then is
that a transaction that has been reduced into writing should be confined to the document and
oral evidence should not be allowed for the following reasons:

1. To avoid the use of extrinsic or oral evidence to substitute the terms of the document i.e
you want to immortalise what you have agreed to and committed in writing.

2. To guard against the use of oral or extrinsic evidence to contradict, vary, add to or subtract
from the contents of the document.

The first concern is the concern to avoid substitution of the document and it is found in Section
97(1) of Evidence Act. The law requires that a matter be reduced into writing or when the
parties are in agreement that the matter be reduced into writing. The document becomes the
sole memorial of what it is that parties have gotten into.

The rule is qualified by 2 exceptions contained at Section 97(2). The exception are:-

1. Pertaining to Wills Wills can be proved by probate and the seal which has letters of
administration attached to it.

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 2. Where a public officer is required by law to be appointed by writing if it is shown that a
person has been acting as such, then the writing by which he was appointed need not be
proved. The reason is to make things workable.

Section 98 is to the effect that when a document has been produced or Secondary Evidence of
it given, all oral evidence between the parties to the document is generally inadmissible to
contradict, vary or subtract from the contents of such document. The rule would only apply to
bilateral agreement and parties to the document. A third party or stranger would not be bound.

There are various qualifications to this rule which are contained as a proviso to Section 98
which is as follows: -

(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 parties, want or failure of consideration,
mistake in fact or law.

(ii) Extrinsic evidence may be tendered to supplement the terms of the document. 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) Extrinsic evidence can be brought to prove that parties agreed that a condition would be
precedent to the attaching of obligations. Parties may agree but decide that the terms are
predicated on certain terms. Oral evidence can be brought in to show the condition precedent.

(iv) Where there is a distinct oral agreement to modify or rescind a transaction which is not
required by law to be in writing or which is not registered in conformance with the law, then the
oral agreement is to be admitted.

(v) If you get into a transaction that will ordinarily be subject to any usage or customs, then
oral evidence of those usages and customs will be admitted.

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(vi) Any fact which shows in what manner language used in a document is related to existing
facts.

USE OF EXTRINSIC EVIDENCE IN INTERPRETATION OF DOCUMENTS

Interpretation of documents is the duty of the court. The concern of the court is to decipher the
meaning of the words as used by the parties. It is the courts job to find out the true meaning of
a document to give effect to the true intention of the maker of the document if the document is
not self explanatory but that is rarely the case and this is why the court needs to interpret the
document.

The Evidence Act has rules on how you interpret a document and they are as follows:

1. Documents which are unambiguous and plain should be given that plain meaning. The
presumption is that the words are used in their ordinary sense and the parties meant what they
have written. Where the language applies accurately to existing facts, it is to be applied plainly.
This is provided for in Section 100.

2. When the language used in a document is on its face ambiguous or defective, evidence
may not be given of facts which show its meaning or supply its defects. Such a document may
be unintelligible in its face and the wording may not be capable of being comprehensible. The
ambiguity in the document on its face is said to be patent. Section 99.

3. When the language used in a document is plain but meaningless in reference to existing
facts, evidence may be given to show that it was used in a peculiar sense. Section 101. the
ambiguity in this case is said to be latent and latent evidence can be cured by bringing in oral
evidence to show that the words were used in a peculiar sense.

4. When the facts are such that the language used in a document might have been used to
apply to any one but could not have been meant to apply to more than one of several persons
or things where evidence may be given of facts which show to which of those persons or things
it was intended to apply. For instance a person might agree to sell a European Car and it is
clear that the seller has 3 European cars which are volkswagon, Volvo and a Peugeot and it is
clear that they meant to sell one but the words apply to all three but it is clear from the amount
of money agreed on, you may bring in oral evidence to show to which car the agreement
applied. Section 102

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5. When the language used in a document applies partly to one set of existing facts and
partly to another but the whole of the documents does not apply correctly to either, evidence
may be given to show which of the two it was meant to apply. For instance a person agrees to
sell a plot in Westlands on which there is a 3 bedroom house. In fact the person has 2 plots one
in Westlands and another in Parklands and it is clear that the one with a 3 bedroomed house is
the one in Parklands and the one in Westlands is actually an undeveloped plot. The court will
allow extrinsic evidence to be brought to establish which plot as the evidence applies partly to
both but it is not clear which one. Section 103.

5. Section 104 allows for extrinsic evidence to be given to show the meaning of illegible or
not commonly intelligible characters of foreign, obsolete, technical, local and provincial
expressions. For instance if in the past the government had used the word
unbwogable later extrinsic evidence may be allowed to explain on what context the
words were used. Section 104

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