UNIVERSITY OF NAIROBI

FACULTY OF LAW
TAPE RECORDED LECTURES
THE LAW OF EVIDENCE

LLB II 2003

LAW OF EVIDENCE Lesson 2

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 that is in issue. Such statements may be received by way of
exception to the hearsay rule. Res Gestae forms part of hearsay.

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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 attempted to cut her throat. She managed to run out even with a cut on
her 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.

s. 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
person’s 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 deceased’s 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. Was 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 accused’s house. She got hold of her
father’s 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.

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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 boy’s mother and a constable had been properly
allowed to give evidence that shortly after the alleged act they saw the boy
approach the accused, touch his sleeve and identify him by saying, ‘That is the
man’. Evidence of the previous identification was admissible as evidence of the
witness’s 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.

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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 that 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.”

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They will be those facts that 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.

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
boy’s head which had opened causing a lot of blood to flow from the deceased’s
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 fact(s) 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 were 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.

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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

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 deceased’s 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 that relate to motive, preparation or conduct of any fact in issue will be
relevant.

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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 person’s acts or conduct. For all voluntary acts, there will be a
motivation and you need to look at a person’s 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 that are required for committing the crime.

Similarly any fact that 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

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 rrelevant, 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.

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

Section 10
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 i.e. 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.

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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:

“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 Company’s 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.

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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 that 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 kinds 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 that affect the quantum of damages.

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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 that helps the court to determine the amount of damages is
relevant. The following cases show various types of facts that the courts have
considered in reaching an assessment.

M’IBUI 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.

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.

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If what you have in issue is your right in custom, s.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.

SIMILAR FACTS EVIDENCE:

The definition
Similar facts evidence can only be led if there are similar facts to those under
consideration. There has to be substantial connection or similarity of what
the person did.

The court has a number of questions should ask:

1.Is it relevant?
2.Can the offence be proved without similar facts
evidence?
3.What other purpose does the evidence serve other
than cause prejudice against the accused person?

Section 14 and 15 deal with similar facts evidence.

Section 14 and 15:

14. (1) Facts showing the existence of any state of mind, such as
intention, knowledge, good faith, negligence, rashness, ill-will or

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 good-will towards any particular person, or showing the
existence of any state of body or bodily feeling, are relevant,
when the existence of any such state of mind or body or bodily
feeling is in issue or relevant.
15.
(2) A fact relevant within the meaning of subsection (1) as
showing the existence of a state of mind must show that the
state of mind exists, not generally, but in reference to the
particular matter in question.
(3) Where, upon the trial of a person accused of an offence,
the previous commission by the accused of an offence is
relevant within the meaning of subsection (1), the previous
conviction of such person is also relevant.

1. Can we infer that human beings did something because human beings
have occasioned similar incidents in the past? Can we rule out natural
occurrence when something happens because similar things have
happened before?

2. Is it legitimate to infer that the accused person has committed the act
under investigation merely because it is shown that he has done similar
things in the past?

It is notable that when you are dealing with similar facts, the general principle of
law is that it is not legitimate to infer that an accused person committed a
particular offence merely because he had committed a similar offence in the
past. The reason is because:

a. Firstly there is the policy of consideration of fairness to the

accused person.

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 b. Secondly similar facts evidence is evidence that can bring about a
lot of prejudice to the accused person.
c. Thirdly the burden that an accused person has when they come
to court is that they have to be ready to defend their whole lives.

Evidence of similar facts may be led if there is substantial connection between

those similar incidents and the one in issue. You cannot lead evidence of fact
just to show connection. There has to be substantial connection in similarity in
what a person did.

The court should ask whether:

 Evidence of similar fact is relevant;

 The offence can be proved without the similar evidence;
 There is a purpose that is served by the evidence other than to cause
prejudice against the accused person.

Evidence of similar fact helps to establish intention and it can also be used to
rule out defence such as honest intention. Even then a Judge has discretion to
keep away evidence of similar facts if it is prejudicial to the accused person.

The locus classicus on evidence of similar facts is

Makin V. AG

Makin and his wife were charged with murdering a child. It was shown that the
child’s mortal remains were found buried in the garden of the Makins. There
was no evidence that they had killed the child but there was evidence that the
Makins had adopted this child from the parents. There was also evidence that
the Makins had also adopted other children who were unrelated to this one.
They were being paid after they adopted the children. There was also evidence

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 that their parents never again saw the children after being adopted by the
Makins. The investigators had found mortal remains of children in gardens of
the houses that the Makins had lived in before.

The question was, is this evidence of houses and backyards relevant in the trial
for the murder of a specific murder. The evidence was admitted though there
was not direct evidence to show that the Makins had actually killed the children.
There was substantial connection between the activities of the adoption of the
other children and the one under investigation. There were striking similarities
between the cases and the Makins had the opportunity to murder the children
but the evidence of their dealings with other children was taken into
consideration because of the similarities that the investigators had found.
In that case, 2 basic principles were established and reiterated in the case of
John Makindi V. R.
The Principles were as follows:

1. You cannot lead similar facts evidence merely to show the accused
disposition to commit an offence. Lord Herschell states as follows:

“It is undoubtedly not competent for the prosecution to adduce

evidence tending to show that the accused has been guilty of criminal
acts other than those covered by the indictment for the purpose of
leading to the conclusion that the accused is a person likely from his
criminal conduct/character to have committed the offence for which he
is being tried.”

Disposition should not be motivation for leading similar facts evidence.

2. On the other hand, the mere fact that the evidence adduced tends to
show the commission of other crimes does not render it inadmissible
if it be relevant to an issue before the jury and it may be so relevant if

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it bears upon the question whether the acts alleged to constitute the
crime charged in the indictment were designed or accidental or to
rebut a defence which would otherwise be open to the accused.
Essentially the Makin case established parameters for admitting evidence
of similar facts. Similar facts evidence cannot just be used to show
disposition.

The second proposition delimiting evidence of similar facts is found in S. 15

of the Evidence Act
16. When there is a question whether an act was accidental or
intentional, or done with a particular knowledge or intention, the fact
that such act formed part of a series of similar occurrences, in each
of which the person doing the act was concerned, is relevant.

After Makin the question arose as to whether the prosecution would have to
wait until a defence arose or could they wait to admit similar facts evidence.

The question arose as to whether the defence had to wait until a defence
arose to raise similar fact evidence or could they raise it to prevent the
accused from even thinking of raising a defence.

Had Lord Herschell only given direction on which subsequent courts could
build on and in Harris V DPP AC. 394

Viscount Simmons settled the matter:

“It was an error to draw a closed list of circumstances of when similar facts
evidence was admissible”.

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 He dispelled the notion that Lord Herschell one did not have to wait until
the accused person raised a defence of accused or mistake for one to bring
up the defence before introducing such evidence.

Lord Herschell only gave instance when similar facts evidence could be
raised and that Lord Herschell only raised instances.

Mohammed Said Akraby v. R. [1956] Vol. 23 EACA 512

It was held in this case that even though the prosecution did not have to
wait until the accused raised a defence; the judge had discretion to exclude
similar facts evidence if its probative value was out weighed by the
prejudicial effect. It was always going to be a balancing act as to what
purpose does the evidence serve other than cause prejudice.

Noor Mohammed v. R. [1937] Vol. 4 E.A.C.A

The accused was charged with murdering his wife by poisoning. There was
no evidence that he had administered the poison but prosecution sought to
adduce evidence that the accused had had another wife who died as a
result of poisoning in circumstances which suggested that the accused had
lured the wife into taking poison as a cure for a toothache. The accused
was convicted but on Appeal, the Appeal was allowed on the grounds that
evidence admitted by the trial judge was very prejudicial to the accused
person. In the words of the court, the probative value was outweighed by
the prejudicial effect even though the evidence was technically admissible.

Similar facts evidence must have strong probative value weighed against
prejudice.

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R v. Scarrot [1978] 1 AER 672

Discussing further probative value versus prejudicial effect, Lord Scarman stated
in this case:
“Such probative value is not provided by mere repetition of similar facts.
There has to be some features in the evidence sought to be adduced that
provided an underlying link. The existence of such a link is not to be
inferred from mere similarity of facts which are themselves so common
place that they can provide no sure ground for saying that they point to the
commission by the accused of the offence under consideration.”

Evidence of similar facts has to have its own persuasive value and not to just have
probative value it just not depend on coincidence.

Admissible similar facts evidence falls into 3 categories that depend on what it is
directed towards:

1. Similar facts evidence to establish state of mind with which some

act proved to have been done was done i.e. what motivated the act;
2. Similar facts evidence to prove the identity of the perpetrator or
doer of an act;
3. Similar facts evidence to establish the commission of the act and
therefore rule out an act of nature or miracle.

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UNIVERSITY OF NAIROBI
FACULTY OF LAW
XXX
LLB II 2003

LAW OF EVIDENCE Lesson 3

A) Similar fact evidence to establish state of mind.

Firstly, the accused may admit that he committed an act but his state of mind is not
discernible. Looking at the evidence it is overwhelming that the accused
committed the crime but it is not clear what his state of mind was. Under this
circumstance it may be the case that he had no intention to do what he did.
E.g. a person could have killed a human being but the case could be that he
killed the human being thinking it to be an animal. If the accused person had
done similar actions where the state of mind was clear, then it can be
inferred that the present act was done with the same state of mind as the
previous ones.

If however the state of mind in previous actions is unclear, the very nature of those
acts conceded along with the present one may lead to an inference as to what the
state of mind was. For instance, if a student was to be caught during the exams
copying from the Evidence Act and in defence says that he did not know that he
was wrong to copy from the Act, if there is evidence that such a student has been
previously caught in another subject doing the same and has been reprimanded
for it, then the evidence would go to show that he is not innocent, the Evidence can
be used to infer.

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R. V. Francis

Francis was charged with attempting to obtain money from another person by
presenting a certain ring to be a diamond ring. He said that he had no knowledge
that the ring he was purporting to sell was not a diamond ring and was worthless.
There was evidence that he had previously approached other persons previously
who had refused to give him money for the ring when they realised that the ring
was not a diamond ring. The question was whether the Evidence of previous
transaction with other persons where these people had refused to give him money
for the ring by realising that the ring was worthless relevant. The court held that it
was relevant to rebut the defence of lack of knowledge.

John Makindi V. R

Evidence of similar fact in John Makindi was admitted on the ground that it
illustrated the hostility and ill will between John Makindi and his foster child. On
state of mind, one of the findings explained the cause of loss of blood and the
other evidence showed that he had been previously taken to court and had
threatened the child with further beating on account of having sent him to prison.
Similar evidence can be used to show the intention in which an act was done.
You can pin the act on a person because they admitted but you may be unable to
establish what the state of their mind was.

You use similar fact evidence to illustrate that a person had fraudulent intention.

R V. Armstrong

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Armstrong was charged with murdering his wife by administering arsenic poison on
her. This poison was actually found in his house tied up in packets containing a
fatal dose. Armstrong claimed that he used the poison to kill weeds as a gardening
aid. There was actually no evidence that he had administered the poison on his
wife. The prosecution however sought to lead evidence that a few weeks after
Armstrong’s wife’s death he had attempted to murder another man by giving him
arsenic poison. The question was whether this evidence was admissible. The
defence raised the objection that the evidence was prejudicial and irrelevant. The
court held that the evidence was admissible and in the words of Lord Hewart:

“… The fact that Armstrong was subsequently found not merely in

possession of but actually using for a similar deadly purpose the very poison
that caused the death of his wife was evidence from which the jury might
infer that the poison was not in his possession at the earlier date for an
innocent purpose.”

R V. Bond [1969] 2 K.B. 389

Dr. Bond was charged with using some instruments on a woman with the intent to
procure an abortion. He denied the intent, he said that he was not using the
instrument to procure an abortion but the instruments were to examine the woman.
The prosecution however sought to lead evidence that the doctor had used the
same instruments on another woman occasioning an abortion and the girl on
whom he was being accused in using the instruments testified that the doctor had
told her words to the effect that he had made dozens of girls happy and could do
the same to her. The defence objected to this evidence on the grounds that it was
prejudicial and irrelevant but it was admitted on the grounds that it showed the
doctor’s intention in purporting to examine the woman and rebutted the doctors’
assertion that he was using it to examine the woman.

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Achieng’ V. R

Achieng’ was a permanent secretary who had an imprest account and was
charged with stealing 76,000/- from that account. His defence was that he had no
intention to defraud and that he intended to account for the money but was
apprehended prematurely. The prosecution however adduced evidence to the
effect that on six previous occasions, Achieng’ had taken money from his imprest
account and never accounted for it. The question was whether the evidence of
previous occasions was admissible and the court held that it was admissible
because it rebutted his defence of intention to account for the money.

The Queen V. Harold Whip and Another (1955) 28 KLR

The two accused were charged with conspiracy to defraud the City Council. The
case for the prosecution was that pursuant to an agreement between the two
accused, one of them was a City Council Engineer and the other one an excavator,
the 1st accused, certified payments as due to the 2 nd accused firm for the
excavation of hard rock which the 1 st accused knew to be greatly in excess of what
had been excavated. The 1st accused had therefore caused excessive payment to
be made by the City Council to the contractors. The prosecution alleged that this
was done fraudulently and that he had not just made an honest mistake in the
estimation of the rocks. The prosecution actually brought evidence that there had
been a case where the same accused had overestimated the amounts owed to the
2nd accused an event that had occurred in 1953. The court held that the 1953
transaction rebutted a defence of honest mistake. Essentially showing the state of
mind with which he had acted.

R V. Mortimer

Mortimer was charged with murdering a woman cyclist by knocking her down. He
claimed that it was an inevitable accident. The prosecution however adduced

23
evidence that Mortimer had on previous occasions knocked down other female
cyclists. It was held that this evidence of the previous incidence was admissible to
show that he intended what he had done. It was not an accident. The nature of
the event as a whole ruled out coincidence and the conclusion was gleaned from
looking at the transaction as a whole.

B Similar Fact Evidence to Identify the Doer of an Act.

Where it is shown that a particular act has been done but nobody knows for sure
who did it, if it so happens that other acts of distinctive similarity with the one under
consideration have occurred and a particular person has been involved, then an
inference may be drawn that he was the doer of the act under consideration. For
this inference to be drawn,the similarity must be very distinct to ensure propensity
on its own should not be used to judge a person. For example if handbags
disappear and it is known that they disappear during the break and this time a
person is caught walking out with a handbag and then it is discovered that this
person never comes back to class after the break and a modus operandi is drawn
that this person has been taking the handbags and the person has a liking for a
particular kind of handbag. Essentially you are looking for similarities.

R V. STRAFFEN:

In this case a young girl was found strangled by the roadside and it was clear from
examining her that there had been no attempt at sexual assault on her person.
Straffen had been seen around the scene of crime but there was no evidence that
he was directly or indirectly connected with the murder. It was established as a
fact that Straffen had strangled two girls at a different place two months earlier and
had also left their bodies by the roadside. It was also clear that there had been no
attempt at sexual assault on these girls. Straffen had been committed to a mental

24
hospital for the offence and at the time the girl whose murder was under
consideration had been killed; Straffen had escaped from the mental hospital and
was at large. When the police went to interview him he said even before he was
questioned ‘I did not kill the girl’. He was convicted on the basis of the evidence of
the other two girls. Again it was established that he had had the opportunity to
murder the girl having escaped from the mental hospital and the fact that he had
been seen near the scene he had the opportunity and the propensity was so
distinct.

Thompson V. R

Thompson had carnal knowledge of two boys and he gave them a date 3 days
later. He described the place of the date as a street outside a public toilet.
Thompson met the two boys at the appointed hour. On noticing the presence of
strangers, Thompson gave the boys some money and asked them to go away. It
turned out that these strange persons were police and when they approached
Thompson he told them that they had got the wrong man. On being searched
Thompson was found in possession of a few bottles of chemicals and a further
search of his house yielded photos of naked boys. The judges relied on this
evidence and its use as alleged by the boys. The boys said what the chemical had
been used for. In the words of the court, being gay had characteristics that were
easily recognisable. It elicited a distinct propensity and was therefore a reliable
means of identification.

Paul Ekai V. R [1981] CAR 115

Paul was charged with the murder of Joy Adamson a famous conservationist. His
defence was an alibi (alibi is assertion of not being at the locus quo). Ekai said
that he had been in Isiolo staying with his grandmother. The evidence was that on
the material night, one of the 3 trunks of boxes in the deceased tent including the
one containing the cash box had been forced open by a person using a bar which

25
had been taken from the workshop at the camp. The intruder had escaped using
the animal enclosure. The prosecution gave evidence that 3 weeks earlier, there
had been a theft at the camp and on that occasion the box containing the cash box
had been forced open with the bar taken from the camp workshop. The intruder on
that previous occasion had gone out through the animal enclosure. When Paul
was apprehended after the murder, he was found in possession of some clothes
stolen from the camp on the previous occasion. Paul was the deceased’s worker
and he had a good knowledge of the camp and taking all these factors into
consideration it was held that the evidence of the previous theft was admissible in
attempts to prove the murder because the acts exhibited a distinct modus
operandi.

C) Similar fact evidence can be lead to prove the commission of an act.

This applies in situations where it is not clear whether the act was done or it
happened miraculously. If it is shown that a similar act has occurred caused by
human intervention, this is a good ground for inferring that a particular act was
actually done as opposed to it just happening miraculously. This is normally in
situations where if you look at the acts in isolation, you can dismiss human act and
attribute them to nature but when you look at the acts together you can see they
had help.

R V. Smith

Smith married his first wife. He took out an insurance policy on her life in his
favour. He made representation to his personal doctor that his wife was epileptic,
a few months later his wife’s dead body was found floating in the bathtub and a few
months later the insurance paid. Smith proceeded to marry another woman, took

26
out an insurance policy on her in his favour and made assertions that she was
epileptic and she too was found dead in the tub and he proceeded to collect
insurance and married yet another one whose body was also found dead. He was
charged with murdering wife no. 1 on the basis of the subsequent deaths of wives
2 and 3 in similar circumstances. In the words of the court the coincidence was too
fantastic to be credible and this of course ruled out the possibility that the drowning
of the women in the bath was an accident. In the words of the court human hands
did the act and the motive was clear so it was not an act of God.

Makin V. Attorney General

The question arose whether the dying of the children adopted by the Makins was
coincidental.

R V. BOLL

Boll stayed with his sister as husband and wife when incest was not an offence
and they even had a child together when incest was not an offence. After
parliament made incest an offence, the two were charged for having an incestuous
affair, but they continued living together as man and wife. Even after incest had
been made an offence, they still continued to live together as man and wife and the
question was whether the evidence of the previous cohabitation as man and wife
could be used against them. They were convicted of incest because their previous
association ruled out innocence of their subsequent association. The logic was
that if two people have previously lived as husband and wife, unless they separate
to live under separate roofs they continue to live as husband and wife. The burden
is on them to rebut this presumption and they were unable to do that.

To summarise similar fact evidence we should look at:

Section 16 of the Evidence Act

27
 “When there is a question whether a particular act was done, the
existence of any course of business, according to which it naturally
would have been done, is relevant.”

For instance if you are trying to establish whether people had lived as husband and
wife if you can show previous cause of dealing where they were living as man and
wife that would be admissible.

Admission of similar fact evidence is the exception to the general rule and will only
be admitted when it has strong probative value.

What is similar fact evidence and when is it admissible? Section 15 and 16

and wise sayings of judges and case law.

JUDICIAL NOTICE.

Judicial notice is defined as what judges see or the liberty accorded a judicial
officer acting as such to recognise the existence or non-existence of certain
facts or phenomena without calling for evidence.

On what basis will Judicial Notice be allowed: -

1. The habit or customs of the court and this relates to the authenticity for
instance of certain signatures. You don’t have to prove the authenticity
every time they come to court. Seals of the court you don’t have to
prove their authenticity because the court habitually uses the seal. The
names and official designation of high ranking officers past and present;
International relations of a country if Kenya is at war with a country
judges are expected to know;

28
2. Where statutes decree that certain things be judiciary noticed e.g.
certain certificates that judges will decree should be taken judicial notice
of;
3. Need to make things workable e.g. the practice of the court, how the
court conducts itself is taken judicial notice of. Ordinary rules of
reasoning don’t need evidence to be proved.

4. Basis of judicial notice is that of matters that are known by everybody

e.g. judges would know that if you imbibe certain liquids you can get
intoxicated this is commonly known. One cannot assume that judges
are so ignorant that they won’t know what everybody else knows.

The effects of judicial notice--Section 59 of the Evidence Act:

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

Judicial notice dispenses with proof.

Section 60 enumerates matters that the court should take judicial notice of.

60. (1) The courts shall take judicial notice of the following facts:-
(a) All written laws, and all laws, rules and principles, written or
unwritten, having the force of law, whether in force or having
such force as aforesaid before, at or after the commencement
of this Act, in any part of Kenya;

(b) The general course of proceedings and privileges of

Parliament, but not the transactions in their journals;

(c) Articles of War for the Armed Forces;

29
(d) The public seal of Kenya; the seals of all courts of Kenya; and
all seals which any person is authorized by any written law to
use;

(e) The accession to office, names, titles, functions and

signatures of public officers, if the fact of their appointment is
notified in the Gazette;

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

(g) Natural and artificial divisions of time, and geographical

divisions of the world, and public holidays;

(h) The extent of the territories comprised in the Commonwealth;

(i) The commencement, continuance and termination of hostilities

between Kenya and any other State or body of persons;

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

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

(l) The ordinary course of nature; Preston Jones V. Preston

Jones – Preston went abroad and resided there for 9 months
and therefore had no nuptial intercourse with his wife. 3
months after he came back, a baby was born to his wife fully

30
 mature. He petitioned for divorce on the grounds of adultery.
Relying on the evidence that the ordinary course of nature i.e.
that human gestation period was 9 months and not 12 or 3
months. The court held that the matrimonial offence of
adultery was not proved. In the words of judges “though the
court took judicial notice of the normal life of human gestation
period, it was not completely ruled out that there could be
abnormal periods of human gestation.

(m) The meaning of English words;

(n) All matters of general or local notoriety; (things that everyone

knows)
(o) All other matters of which it is directed by any written law to
take judicial notice.

Should we take judicial notice of customary law?

Kimani Gikanga

The issue arose as to whether in a dispute involving customary law whether

customary law should be taken judicial notice of. Judges were of the opinion that
the party that seeks to rely on the customary should prove that customary law as a
matter of fact by calling expert witnesses. This is because of the difficulty of
establishing what the customary law is at any given time since it is unwritten.

Section 18 of the Magistrates Act

Magistrates are allowed to take Judicial Notice of customary law without having to
call for proof for it and if there is a dispute, then it will have to be established by
proof. If customary law is a disputed tenet, then there is need for proof. If there
are contestations then proof will have to be called.

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Section 60 (1) (b) Judicial Notice should be taken of the general course of
proceedings and privileges of parliament, but not the transactions in their journals.

The court need not call for evidential proof of privileges accorded to parliament.
These provisions however exempts from judicial notice transactions in
parliamentary journals. Whatever is recorded in the Hansard is not going to be
taken judicial notice of.

Section 60 (1) (c) - Judicial Notice should be taken of articles of war for the Armed
Forces.

Section 60 (1)(e) -the public seal of Kenya; the seals of all courts of Kenya; and
all seals which any person is authorized by any written law to use;

Section 60 (1) (f) - The accession to office, names, titles, functions and signatures
of public officers if the fact of their appointment is notified in the Gazette;

Section 60 (1) (g) - the existence, title and national flag of every State and
Sovereign recognized by the Government; this is to avoid embarrassment.

Section 60 (1) (h) - Natural and artificial divisions of time, and geographical
divisions of the world, and public holidays;

Section 60 (1) (i) - The extent of the territories comprised in the commonwealth;

Section 60 (1) (j) - the commencement, continuance and termination of hostilities

between Kenya and any other State or body of persons;

Section 60 (1) (k) - the names of the members and officers of the court and of
their deputies, subordinate officers and assistants, and of all officers acting in

32
execution of its process, and also of all advocates and other persons authorized by
law to appear or act before it;

Section 60 (1)(l) - the rule of the road on land or at sea or in the air;

Section 60 (1)(m) - the ordinary course of nature;

Section 60 (1) (n) - the meaning of English words;

Section 60 (1) (o) - all matters of general or local notoriety;

Section 60 (1)(p) - all other matters of which it is directed by any written law to
take judicial notice.

PRESTON JONES VS PRESTON JONES

Preston went abroad and resided there for 9 months and therefore had no nuptial
intercourse with his wife. 3 months after he came back, a baby was born to his
wife fully mature. He petitioned for divorce on the grounds of adultery. Relying on
the evidence that the ordinary course of nature, human gestation was 9 months not
12 months or 3 months. The court held that the matrimonial offence of adultery
was not proved. In the words of the judges, “though the court took judicial notice of
the normal life of human gestation, it was not completely ruled out that there could
be abnormal periods of human gestation.

Re Oxford Poor Rate Case:

Burns V. Edmund

33
In this case Crichton J. halved the conventional award of damages for loss of
expectation of life to the wife of a deceased criminal after taking judicial notice of
the fact that “the life of a criminal is an unhappy one.”

UNIVERSITY OF NAIROBI
FACULTY OF LAW
XXX
LLB II 2003

Law of Evidence Lesson 4

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.

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

34
 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 the 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.”

35
 (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.

A I) - 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 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.

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

36
 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

i) 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

37
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.

ii) Presumption of Likely Facts S. 119 (Immutability of Things):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 decorticator amputated a sisal factory employee’s arm 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 that disappeared by September but the
factory owners were welcome to bring in evidence to prove that there had been a
barrier in April.

iii) Official & Judicial Acts are Regularly Performed.

(Presumption of Regularity):It is based on sound public policy that imputes good
faith on official and judicial conduct. The burden is on he/she who alleges

38
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.

iv) 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.

v) Evidence That 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.

vi) Accomplices are Unworthy of Credit & That Their Evidence Should Not Be
Used To Convict Unless It Is Corroborated: 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.

39
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 Appellant’s 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 L’s 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.

B - 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

40
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.
(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 that 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 uses 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

41
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.

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.

42
 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.

43
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.
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.

44
i) 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 person’s 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.

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 that 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.

45
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 person’s inheritance.

ii) 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.

46
 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.

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 Registrar’s 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.

47
 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. The
deceased’s brothers who argued that she was not a wife opposed this
move. 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

48
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.

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.

49
 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.

C - 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.

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 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 lack of guilt)

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 less
than 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.

51
UNIVERSITY OF NAIROBI
FACULTY OF LAW
XXX
LLB II 2003

LAW OF EVIDENCE: Lesson 5

ADMISSIONS.

Under the Evidence Act an admission is defined as a statement oral or written

which suggests an inference to a fact in issue or a relevant fact made by one of the
parties to the proceedings.
Admissions are classified into
1. Formal Admissions;
2. Informal Admissions;

Informal admissions are those admissions that are made before any proceedings
are anticipated and this is covered at Sections 17 to 24 of the Evidence Act.

Formal admissions are made in the context of specific proceedings and the effect
of formal admissions is that they dispense with proof. They will be made in answer
to a notice to admit and they could also be made by Affidavit. The distinction
between formal admissions is that formal admissions are made with respect to
proceedings while informal are made with respect to anticipated proceedings.

In the area of criminal law, admissions will be under what is called confessions.
Sections 25 –32 deal with confessions.

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According to Section 24 an admissions is not conclusive proof of the matters that
they admit but they could operate as estoppels and many writers on S. 24 wonder
why the legislators put that provision knowing that under Common Law Admissions
if admitted are conclusive proof. But essentially we are saying even though they
are not conclusive they amount to estoppel. The idea of estoppel in admission is
to prevent a person to assert things that are at variance with things they had
admitted before.

Section 61 deals with facts admitted in Civil Proceedings are to the effect that no
fact needs to be proved. The main principle is that once you admit certain facts,
you will not be required to prove those facts but unless the court may by discretion
require those facts to be proved.

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 that 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.

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

The second aspect that 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 Plaintiff’s let a car
on 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.

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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 that is
drawn from French word that 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 couldn’t 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 that is the basis of an estoppel must be a statement
or representation of fact that existed in the past or exists at the time of
the making of the statement or representation. It should not be a
promise in future.

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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.

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

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 claiming against the third party.

CRABB V. ARUN District Council 1976 1 Ch 179

The plaintiff owned a piece of land that 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 plaintiff’s 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

56
 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 plaintiff’s action was dismissed. On Appeal by the plaintiff, it was held that:
1. The defendants knowing the plaintiff’s 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 plaintiff’s land for a considerable period

resulting from the Defendant’s acts, the Plaintiff should grant the right
without any payment.

There are 4 general classifications of Estoppel

1. Estoppel by Record
2. Estoppel by Deed
3. Estoppel by Agreement
4. Estoppel by Conduct.

a) 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

57
same point in another action against the successful party. The prerequisites for
there to be estoppel by record is that, a court of competent jurisdiction should have
adjudicated the matter. 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.

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.

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.

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Both judgments in rem and in personam give rise to 2 kinds of estoppels:
1. Cause of Action Estoppel
2. Issue Estoppel

Issue Estoppel, once an issue has been adjudicated the same persons cannot
bring it up again

Course of Action Estoppel is based on the notion that once a course of action is
dealt with on a judgment, 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 defendant’s 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 that he had suffered subsequent to the original litigation.

PURSER V. JACKSON [1977] QB

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 that subsequently arises. The earlier submission operates
as an estoppel only in respect of the matters that 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.

59
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 that the plaintiff exercising due diligence or reasonable diligence
could have brought forward against the defendant. All matters or claims
against the defendants that the plaintiff exercising diligent powers could
have brought forward. Only these will form the basis of the Estoppel.

 Whether it is 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 father’s car
that collided with the defendant’s 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 father’s agent. The law at that time was that contributory

60
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.

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 Marginson’s car driven by his wife as his agent and
an omnibus driven by Blackburn servant. Marginson’s 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 wife’s 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

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HENDERSON V. HENDERSON [1843 – 1860] AER 310
LIMITATIONS TO ESTOPPEL BY RECORD

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

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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.

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 that 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: -

63
 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 …

“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 1 st January 1965.
The defendant did not dispute the agreement but claimed that it was void and
unenforceable 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.

64
 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.

65
UNIVERSITY OF NAIROBI
FACULTY OF LAW
XXX
LLB II 2003

EVIDENCE LAW Lesson 6

ESTOPPEL BY AGREEMENT

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 that 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

66
words becomes a persons tenant then he is deemed to acquiesce in the landlord’s
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! The first tenant could not
continue asking Ahmed for rent because Ahmed was not estopped from pleading
and proving that his landlord’s 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.”

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)

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Under S. 122 - Estoppel of Acceptor of a Bill of Exchanged

“ 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 right
person drew the cheque, but the acceptor should not deny the drawer the right to
draw. If the bill of exchange is a forgery it is up to the bank to prove it.

S. 123: Deals with a variety of estoppels by agreement. 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 bailee’s 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.

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PRINCIPLE & AGENT ESTOPPEL

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 either in doing or
omitting to do something thereby altering his position to his detriment.

Hopgood v. Brown [1955] 1 ALL ER 450

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”. I

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.

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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 statement’s truth or if you are under a
duty to act and you don’t 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 didn’t. This failure would be what
people relied on and it could give rise to estoppel.

Greenwood V. Martin’s 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 husband’s signature to the cheques and drew out
money that 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:

1. The Plaintiff owed a duty to the defendant bank to disclose the

forgeries when he became aware of them, as this would have

70
 enabled the bank to take steps to recover the money wrongfully paid
to the wife.

2. 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.

3. 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 lawyer’s
statement.

3 The representation must be one of fact.

4 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.

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Chatrath v. Shah [1967]

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,

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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
1940’s 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, the plaintiff wrote a letter 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 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 in fact 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

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were entitled to recover the full rent claimed at the rate reserved by the lease
document.

In Century v Hutchings as to the issue of promissory:

(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 Estoppel 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.

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

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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
3rd party, the 3rd party can disclose the information. Privilege is personal to the
person 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.

75
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.

CATEGORIES OF PRIVILEGE:

1. Privilege of accused persons Section 77 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 that enshrines privilege against self-
incrimination. The matter was taken to constitutional court that 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.

2. 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

76
free flow of information. The information can only be used on prosecution for
perjury.

3. Private privileged of witnesses 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.
(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 3rd parties have intercepted the
letter.

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

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4. Legal professional privilege S. 134 OF EVIDENCE ACT.

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 that 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 corroboration in the
Appellant’s 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.

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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.

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.

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Privilege will emanate from a person’s official status vis-à-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 that can compel them to
disclose any matters that 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 123.

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

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.

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On 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 driver’s 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. 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.

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Duncan v. Camwell, Laird & Co. Ltd. Claim for negligence

Re Grosvenor Hotel London No. 2

Conway v. Rimmer

It is not all about a minister’s 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 minister’s 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 minister’s decision.

Duncan
Claim for negligence in relation to construction of a submarine

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UNIVERSITY OF NAIROBI
FACULTY OF LAW
XXX
LLB II 2003

LAW OF EVIDENCE Lesson 7

What is burden of proof? The term burden of proof draws from the Latin Phrase
Onus Probandi and when we talk of burden we sometimes talk of onus.
Burden of Proof is used to mean an obligation to adduce evidence of a fact.
According to Phipson on the Law of Evidence, the term burden of proof has two
distinct meanings

1. Obligation on a party to convince the tribunal on a fact; here we are

talking of the obligation of a party to persuade a tribunal to come into
ones way of thinking. The persuasion would be to get the tribunal to
believe whatever proposition the party is making. That proposition
of fact has to be a fact in issue. One that will be critical to the party
with the obligation. The penalty that one suffers if they fail to proof their
burden of proof is that they will fail. They will not get whatever judgment
they require. If it’s a plaintiff they will not sustain a conviction; if
defendant there will be no relief. There will be a burden to persuade on
each fact and maybe the matter that you failed to persuade on is not
critical to the whole matter so you can still win.

2. The obligation to adduce sufficient evidence of a particular fact.

The reason that one seeks to adduce sufficient evidence of a fact is to
justify a finding of a particular matter. This is the evidential burden of
proof. The person that will have the legal burden of proof will almost
always have the burden of adducing evidence.

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Section 107 of Evidence Act.
Defines Burden of Proof –

Of essence to burden of proof is proving the matter in court.

(2) Refers to the legal burden of proof.

S. 109. – Specifically exemplifies the Rule in S. 107 and it talks about proof
of a particular fact. It is to the effect that the burden of proof as to any
particular fact lies on the person who wishes to rely on its existence.
Whoever has the obligation to convince the court is the person said to bear
the burden of proof. If you do not discharge the burden of proof then you
will not succeed in as far as that fact is concerned.

Cases that exemplify Burden of Proof

Ryde v. Bushell pg. 8 course outline

The defendant was seeking to rely on the defence of act of God and the court held
that if a person wished to rely on defence of act of God one has to establish it
through aid.

Omar Mohiddin V. Sikuthani Pg. 8

Where it is neither readily appreciated nor known that you are married to
somebody the burden of proving that you are so married lies on you. The total
essence of proof is that the burden is on the one who wishes to prove that they are
married

11th Case Course outline

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Hakam Bibi v. Mistry

Kimani v. Gikanga

The principle is that if you want to rely on personal law, you have to establish what
that law is. In Kimani a person sought to rely on customary law and if you are
relying on customary law you have to establish what the law is.

Commissioner of Income Tax v. Baku

The principle is the same as in Valabras Shamzi v. Commissioner of Income
Tax.

These two cases establish the principles that if you dispute tax on the basis that it
is excessive, the burden of proof is on you. It is not up to the Commissioner to
establish that it is excessive but it is in your interest to adduce evidence before the
case to determine to what extent it is excessive.

If you are the person with a legal obligation to establish a matter then the burden of
proof is on you.

GENERAL RULE:

The general rule is that burden of proof is borne by the Plaintiff in Civil cases and
by the Prosecution in Criminal Cases.

Joseph Mbithi Maula v. R

In this particular case the 1st Appellant was convicted for handling cows stolen by
the 2nd Appellant. The trial Magistrate said in the course of his judgment ‘none of
the accused disputed the fact that the cows mentioned in the three counts belong
to the Respondent owners and they had been stolen from their bomas during the

85
material nights. They did not dispute the identity and ownership of the cows
therefore I find all this as facts.’ The High Court affirmed the conviction but the
court of Appeal found that the statement of the trial magistrate was a mis-direction.
In the words of the Court of Appeal it was up to the prosecution to prove that the
cows were stolen. In criminal cases the burden of proof has to be beyond
reasonable doubt, having doubt or suspicion is not enough. In the words of the
Court of Appeal, the mere fact that the accused kept quiet did not approve of the
matters.

Alois Nyasinga v. R

In this case, which was a murder trial; there was evidence that at the time that the
appellant committed the offence he was drunk. He had stabbed the deceased in
the neck inflicting him with a fatal wound. The trial judge directed himself and the
assessors that it was for the appellant to prove that he was so inebriated as to be
unable to form the intent to kill.

On appeal, the Court of Appeal who said that the trial court had misdirected itself
and the assessors on the matter of intent reversed the decision of the first court.
The Judge should have explicitly told the assessors that it was not for the Appellant
to prove that he was so drunk he could not form intent to kill or hurt the deceased.
It was the duty of the prosecution to prove that the Appellant was not so affected
as to be incapable of forming intent. Even though if a person is trying to establish
a defence and one wants the court to excuse them from having done something,
say murder and you want to plead self defence, or insanity, while it is incumbent for
you to bring the matter before the court, it does not discount the prosecution’s duty
to establish the intent.

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Woolmington v. DPP

The accused was charged with the murder of his wife. He gave evidence that he
had accidentally shot her. The trial court directed the jury that once it was proved
that the accused shot his wife, he bore the burden of disproving malice
aforethought (intention). On Appeal to the House of Lords it was stated that the
trial court direction was not appropriate, that it was a misdirection, and stated as
follows:

‘Throughout the web of English criminal law one golden thread is

always to be seen. That is the duty of the prosecution to prove the
prisoner’s guilt subject to what I have said as to the defence of
insanity and subject also to any statutory exception. He continues to
say that no matter what the charge or where the trial the principle that
the prosecution must prove the guilt of the prisoner is part of the law
of England and no attempt to whittle it down can be entertain.”

In Woolmington you will see intimations as exceptions to the general rule.

BURDEN OF PROOF IN CIVIL CASES

The principle is that burden of proof in civil cases rests with the plaintiff.

Joseph Constantine Steamship Line v. Imperial Smelting Co. Ltd. [1942] A.C
154

In this case the plaintiff, Charters of a ship,claimed damages from the owners for
failure to load. The defendants pleaded that the contract had been frustrated by

87
destruction of the ship owing to an explosion the cause of which was unclear.
Such frustration would have concluded the case in favour of the defendants in the
absence of any fault on their part. The trial court held that the onus of proving or
the burden of proving that frustration was induced by the defendant or by their
default lay on the plaintiffs. The Court of Appeal reversed this finding holding that it
was up to the defendants to establish that the frustration was not induced by their
default. The case went to the House of Lords where the Appeal was allowed the
House of Lords holding that the burden of proving that there was default on the
part of the owners lay upon the plaintiffs.

What we are saying that burden of proof by and large in civil cases is going to lie
on the plaintiff.

Levison & Another v. Patent Steam Carpet Cleaning Co. [1978] QB 79

The defendants were guilty of unexplained loss of a Chinese carpet which had
been delivered to them for cleaning and which belonged to the plaintiff. A clause in
the contract signed by the plaintiffs would have exempted the defendants from
liability for negligence but not for any fundamental breach. The plaintiff sued the
cleaners for loss of carpet. The trial court gave judgment against the cleaners.
They appealed and it was held on appeal that in a bailment contract when a bailee
seeks to escape liability on the ground that he was not negligent, or that he was
excused by an exception or limitation clause, then he must prove what happened
to the goods. Having failed to satisfactorily explain the circumstances surrounding
the loss of the carpet, the carpet cleaner was liable.

Burden of proof is on plaintiff in civil cases.

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Exceptions to the General Rule in Civil Cases: What are the circumstances you
have the burden of proof laying on the respondent? These are provided for in S.
112 that relates to facts within the special knowledge of a party to the proceedings:

1. It is to the effect that if it is alleged that the facts are especially within
the knowledge of a party, the burden of proving those will lie on such
party.
So it may happen that in the course of proceedings, there are certain facts that
happen to be within the special knowledge of the respondent and the burden on
prove will be on the respondent.

The second exception is contained in S. 115 of Evidence Act that relates to

disproving apparent special relationship. This section is to the effect that,

2. When there is an apparent relationship between 2 or 3 people, the

burden of proving that there is no such relationship is on the person
alleging that the relationship does not exist.

For instance if the question is whether there is a party averring that that there is no
relationship between for instance a landlord and tenant.

S. 116 this relates to disputing ownership.

3. This section is to the effect that when you are shown to be in

possession of anything, the burden of proving that you are not the
owner of that which you possess will be on the person alleging that
you are not the owner. This exception is explained away on the difficulty
that one might visit on the people who would be under threat of people
coming in and disputing ownership.

Section 117 that deals with prove of good faith.

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 4. Where there is a question as to the good faith of a transaction
between parties one of whom stands to the other in the position of
active confidence, the burden of proving good faith of the transaction
is on the person who stands in the position of active confidence in
relation to the client.

Exceptions to the General Rule in Criminal Cases: The burden of proof lies in
the prosecution

The constitution in S. 77 2 (a) provides that a person charged with any offence is
presumed to be innocent unless he pleads guilty or is proved guilty by the
prosecution. This provision imposes burden of proof on the prosecution. It is up to
the prosecution to prove the guilt of the accused unless the accused pleads guilty.
Where one pleads guilty, there is no contestation.

To buttress this presumption is S. 77 (12) (a) nothing in any law shall be construed
as being in conflict with S. 77 (2) (a) if the law in question imposes the burden of
proof in specific parts on an accused person. This section saves the statutory
provisions that there might impose burden of proof on accused persons on specific
facts.

What are the instances where specific facts require to be proved by an accused?

S. 111 (1) K. E.A.

1. If you are charged with an offence and you are in a position of

claiming that you are exempted from liability for that kind of offence,
it is your duty to bring the circumstances to the notice of the court. It
is incumbent upon you to prove a fact. There is a derogation that the

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 burden of proof in criminal cases lays on the prosecution. For
instance if you have diplomatic immunity you must bring it to the
attention of the court for the exemption.

R. .V, Hunt (1987) 1 ALR 1

The accused was charged with unlawful possession of a prohibited drug. The
relevant statute provided that it would not apply to any preparation containing not
more than 0.2% of the drug. The defence submitted that there was no case to
answer since the prosecution had not adduced evidence as to the percentage of
the prohibited substance found on the accused. The defence was overruled and
on appeal the court of appeal dismissed the appeal but at the House of Lords it
was stated that:

1. A statute can place a burden of proof on an accused person and it can

do this either explicitly or implicitly.

2. A statute may be construed as imposing the burden of proof on an

accused person but such a construction depends on the particular
legislation.

3. The statute however cannot be taken to impose the duty on an accused

to prove his innocence in a criminal case.

4. Public policy in this particular case favoured the position that the burden
of proof was on the accused person.

The Appeal was allowed.

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 2. S. 111 (2) (c) intoxication or insanity

The accused bears the burden of proof of intoxication or insanity if an

accused person claims that he was so intoxicated as to be insane, he
has to prove that but the duty of the accused only goes as far as proving
that he was intoxicated and does not go to the level of proving that he
could not form an intent.

Godiyana Barongo s/o Rugwire v. R

Defence of insanity through intoxication

The burden resting upon an accused person when attempting to rebut a natural
presumption which must prevail until the contrary is proven will never be the same
as that resting upon the prosecution to prove the facts that they have to establish.
It will not be higher than the burden that rests on a plaintiff in civil cases.

Nyakite s/o Oyugi v. R [1959]

In this case the evidence of the defence and the prosecution showed that the
accused was intoxicated but the accused did not raise intoxication as a defence.
The trial judge said that the burden of raising a defence of intoxication so as to
negative intent was on the accused person. On Appeal, it was held that this
statement was misdirection and that the onus of establishing a defence is not on
an accused person. If there is evidence of intoxication the court must consider it
and determine whether it negative intent. The prosecution has to show that the
intoxication was not as high as to negative intent.

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Nyamweru s/o kinyaboya v. R. (1953)

The appellant was in an advanced state of intoxication when he killed his wife with
a knife. He was convicted of murder. On Appeal it was held that whilst the plea of
intoxication is a matter for the defence, there could be circumstances pointing to
such a condition arising out of the prosecution case. The use of a lethal weapon
may indicate a malicious intent but it is not a conclusive intent to murder. It gave
an example where the accused is so drunk that they are not able to form the intent
not withstanding the use of a lethal weapon.

Malungu s/o Kieti v. R

Where the accused was convicted of murder and evidence established that the
appellant was drunk by the time he killed. The assessors were of the opinion that
the appellant was incapable of forming the intent necessary to constitute the
offence of murder but the trial judge took the view that the onus of rebutting the
presumption that he was capable of forming the necessary intent to kill was on the
appellant. On Appeal it was held that the burden of proving that an accused is
capable of forming the intent necessary to constitute the offence of murder always
remains on the prosecution. So even when the defence raises the defence of
intoxication, the burden of prove is still on the prosecution.

R v. Kamau s/o Njoroge

R v. Saidi Kabila Kiunga

There are other statutes apart from the Evidence Act that place burden of proof on
the accused:

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1. The Public Order Act that is to the effect that the burden of proving lawful
or reasonable excuse or lawful authority is upon the person alleging the
same.

2. The Prevention of Corruption Act Cap 65 that provides that any money
paid or gift given to a public servant shall be deemed to have been paid or
offered corruptly as an inducement or reward unless the contrary is proved.

3. The Immigration Act, which is to the effect that in any proceedings under
the Immigration Act if the question in issue is:

(i) Whether a person is or is not a citizen of Kenya, or

(ii) Whether or not a person is a diplomat or wife of child of such
or
(iii) Whether or not any person has been issued or granted a
passport, certificate, entry permit, pass, authority or consent
under the Act or
(iv) Whether or not any person is at any time entitled to any such
issue of right the burden of proof will lie on the person
contending that they are so entitled.

4. The Public Health Act, - every person while suffering from a venereal
disease in any communicable form or continues in employment in or about
any factory shop, hotel, restaurant, house or other place in any capacity
entailing the care of children or handling of food of food utensils intended for
use of consumption by any person shall be guilty of an offence unless he
proves that he did not know or suspect or had no reasonable means of
knowing or suspecting that he was so suffering. It is an offence for any
person to employ such a person; the defence would be for the employer to
prove that they did not know that the employee was sick.

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 5. Stock and Produce Theft Act – any person who has in his possession any
stock reasonably suspected of being stolen or unlawfully obtained shall if he
fails to prove to the satisfaction of the court, that he came by the stock
lawfully shall be guilty of an offence and liable to conviction.

6. Wildlife Conservation & Management Act – it is an offence to be found

with or to be dealing with Game Trophies and the person charged under this
Act has the burden of proving lawful possession for dealing with such gain.

Those are the exceptions to the general rule that he burden of proof lies on the
prosecution.

Section 108 E.A incidence of the burden of proof. It lies on that person who would
fail if at all …

STANDARD OR DEGREE OF PROOF.

The question is what level of cogency or conviction should evidence attain before
the court can act in favour of the person who bears the burden of proof.

In criminal cases when the burden of proof is on the prosecution the standard of
proof is beyond reasonable doubt. The question has arisen as to what is
reasonable doubt?

Miller v. Minister of Pensions [1947] 2 ALL ER

In this case Lord Denning tried to explain what reasonable doubt would mean he
said ‘the degree is well settled. It need not reach certainty, but it must carry a high
degree of probability. He continues ‘proof beyond reasonable doubt does not

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mean proof beyond a shadow of doubt the law would fail to protect the community
if it admitted fanciful probabilities or possibilities to deflect the course of justice. If
the evidence is so strong against a man as to leave only a remote possibility, in his
favour which can be dismissed with a sentence ‘of course it is possible but not in
the least probable’, then the case is proved beyond reasonable doubt.’

Lord Denning continues, “It must carry a reasonable degree of probability but not
as high as is required in criminal cases. If the tribunal can say ‘we think it more
probable than not,’ the burden is discharged but if the probabilities are equal, the
burden is not discharged. Degree of cogency in burden of proof required is less
than in criminal law.

Other people have said that reasonable doubt is the doubt of men of good sense
not of imbeciles or fools.

In criminal cases where the accused bears the burden of proof, we have already
stated that the standard of proof is on a balance of probability.

The burden of proof in civil matters is on a balance of probabilities. Where you

have cases of fraud for instance if the allegation involves criminal conduct, the
degree required is going to be higher. There is a spectrum level of degrees.

R.G. Patel v. Lalji Makanji [1957] E.A. 314

The court in this case stated that allegations of fraud must be strictly proved
although the standard of proof may not be so heavy as to require proof beyond
reasonable doubt, something more than a mere balance of probabilities.

In a matrimonial offence, there is a variation in the standard of proof. If you are

relying on adultery to get your divorce, the standard of proof is beyond reasonable
doubt; you have to catch them flagrante delicto.

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In Wangari Mathai v. Andrew Mathai it was stated that if you are relying on the
offence of adultery the court must prove guilt beyond reasonable doubt or so as to
feel sure that the guilt had been proved. The Appellant had argued that there was
no direct evidence of adultery and on Appeal it was argued that the degree of
adultery had not been proved but the decision was upheld. The court relied on
circumstantial evidence to find guilt.

Maherdavan v. Maherdavan [1964] p233 [1962] 3 ALL ER 617

A ceremony had been celebrated between the parties in Ceylon. Two of the
requirements of the local law were solemnisation of the marriage by a registrar.
This was either in his office or in another authorised place and during the
ceremony, an address by the registrar to the parties on the nature of the union.
The parties cohabited as if man and wife for a short period of time and the
husband acknowledged the wife as such. Seven years after the first ceremony, the
husband went through another ceremony of marriage with another woman in
England and the validity of the first marriage came into question. According to the
marriage certificate, a registrar in his office had solemnized the marriage. But the
wife gave evidence that the marriage had taken place at her patents house and
there was no evidence of the requisite address by the registrar of parties.
Rejecting as irrational legal chauvinism an argument of counsel for the husband
that there was no presumption in favour of a foreign marriage the establishment of
which would invalidate a subsequent English one, Sir Jocelyn Simon P applied
the presumption and held the foreign marriage to be formally valid.

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 SAMPLE QUESTION.

In 1980, T and M were married in London, UK. In 1985, the couple returned to
Kenya, where after a short stay, M proceeds to USA for post-graduate studies. For
7 years, T does not hear from M. In 1993, T gives up on waiting for Ms’ return.
She (T) meets with F and out of a desperate love they get immediately married.

Shortly thereafter, T meets with J, an old friend just returned from the USA. J
confirms to T that M is living in the US with an American lady. In 1996, T sues F for
divorce. In his defence, F asserts that their marriage is a nullity because in 1993,
T was still legally married to M. Unfortunately F cannot trace J to testify. T has
evidence that M may
have been married previously to A in 1978 and that A is still alive.

Advice T and F.

The presumption of marriage will arise where there has been a ceremony of
marriage which has been subsequently cohabitated. If the parties had capacity to
contract a marriage then the law presumes that they are validly married.
Presumption of marriage can also be established through ceremony and
cohabitation. The formal validity of a marriage depends upon the lex loci
celebrationis i.e. the law of the place where one purports to have gotten married
and failure to comply with the formal requirements of the local law may make a
marriage void. Once it is admitted that a marriage was celebrated between 2
persons who intended to marry then the formal validity is presumed to exist.

On advice to T, beginning with the marriage of T and M, it will be presumed that T

and M were validly married in London in 1980. The presumption of marriage is a
very strong presumption, rebuttable only by strong evidence that will go beyond a
mere balance of probability. For instance in the decided case of Piers V. Piers the

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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 Pierses 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. The presumption of marriage is not lightly repelled and requires
evidence that can satisfy the court beyond reasonable doubt as was held in
Mahadervan V. Mahadervan where was held that the court must be satisfied
beyond reasonable doubt if a presumption of marriage is to be rebutted.
Evidence of a prior marriage may suffice to rebut a presumption of marriage and
therefore if T is able to prove that M may have been married previously to A in
1978, this would nullify T’s marriage to M in London. If M had been previously
married to A it would mean that the marriage between T and M was a nullity and
therefore F cannot assert that T had been legally married to M when they got
married and F therefore has to consider giving M her divorce as it would mean that
the marriage to M was void and whether M is alive or not, T was legally married to
F and was thus entitled to a divorce. T has to have strong evidence of for instance
a marriage certificate and corroborating evidence to prove that M had been
previously married to A which would make her marriage to M void and her marriage
to F legit thereby earning her a divorce from F.
In Chard V. Chard (1956) 2 AER 259 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

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death was inapplicable in which case the nullity would not go through but they
would have to bring in more evidence.
In 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.

F wants his marriage to T declared a nullity on the fact that M who was validly
married to T in London in 1978 is not dead since J claims to have seen him living
with an American woman in America.
Section 118 (a) of The Evidence Act Cap 80 Laws of Kenya states that where it is
proved that a person has not been heard of for seven years by those who might be
expected to have heard of him if he were alive, there shall be a rebuttable
presumption that he is dead.

For presumption of death to be established, the court will consider whether there
are people who would be likely to have heard from the person presumed to be
dead in over seven years, and whether they have actually heard from that person
and whether all due inquiries have been made as appropriate in a given
circumstance.

The next thing that the court will want to consider is whether M is still alive and
whether he has had communications with people that he ought to be in touch with
namely family and relatives or can M be presumed to have died since T had not
heard from him in over 7 years. The court will need prove that the people who
could have heard from M have not heard or seen M in over 7 years. The court will

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also need evidence that T has made all efforts to reach M and that M has not been
heard from in over 7 years, and that all efforts to reach M have been fruitless.

Is the evidence of J that he met M in United States living with another woman
credible? Can J be called to give evidence that M is alive and living in the United
States with another woman? If J can be found and agree to testify, the Judge may
be convinced by J’s evidence not to presume that M is dead so it will depend on
the trial Judge.

F has to rebut the presumption that his marriage to T is valid with the argument
that T was validly married to M who is not dead and who is living in the United
States of America with an American woman. To be able to rebut the presumption
that M is still alive, F will have to find J who is the last known person to have seen
M and who can rebut the presumption that M is dead. The rebuttal must be cogent
and has to be supported by evidence. The court must be satisfied beyond
reasonable doubt in order for the presumption to be rebutted. Evidence that T had
been married to M and that that marriage is still valid may suffice. F has an uphill
task of proving that M is still alive without the evidence of J and will have to look for
J to give evidence that M is alive in the United States of America and living with an
American woman to rebut the presumption that M can be presumed dead.

The outcome will depend on what kind of evidence T has that M could have been
married to A before they met and if the evidence is cogent, the marriage between T
and m will be nullified as this means that M was already married to A when he met
T and the marriage in London to T is therefore invalid. In the absence of evidence
from T about M’s prior marriage to A, F will have to find J to give evidence to rebut
the presumption of the death of M to prove that his marriage to T was void and
therefore a divorce will not be necessary.

EVIDENCE II - SECOND SEMESTER

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