NAME: CHAKA VICTOR BORA

REGISTRATION NO: LSG201-C002-0069/2018

LSC 2209: EVIDENCE 2

TAKE-AWAY ASSIGNMENT
QUESTION 1: USING STATUTES AND RELEVANT DECIDED CASES DISCUSS
INSTANCES IN WHICH PRESUMPTION OF LAW AND PRESUMPTION OF FACT
ARE RELEVANT IN THE PRODUCTION OF EVIDENCE IN KENYA, NOTING TO
DISTINGUISH BETWEEN THE TWO.

A presumption is a legal inference that must be made in light of certain facts. It is

the rule of law which permits a court to assume a fact is true until such time as there is a prepond
erance (greater weight) of evidence which disproves or outweighs (rebuts) the presumption.

Presumption of Law

It is an inference based on a policy of law or a general rule and not upon facts or evidence
adduced before the court.

A presumption of law can be rebuttable or irrebutable.

Rebuttable presumption of Law

Where a rebuttable presumption of law applies, on the proof of or admission of a fact, referred to
as the primary or basic fact, and in the absence of further contrasting evidence, another fact
known as presumed fact must be presumed. For instance, one is presumed innocent until proven
guilty. This is a rebuttable presumption as it can be disapproved by statement of further weighty
evidence.

1. Presumption of Legitimacy

At Common law, a child born within the subsistence of marriage is presumed to be the child of
the husband. This presumption is rebuttable.

The Evidence Act provides in section 118 that by the fact that one was born during the
continuance of a valid marriage between his mother and any man or within two hundred and
eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that
he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no
access to each other at any time when he could have been begotten.1

This presumption may be rebutted by

1
Section 118 Evidence Act, Chapter 80 Laws of Kenya
 a) non-access,
b) impotence,
c) the wife’s cohabitation with another man for an appropriate period of time before the
d) birth of the child,
e) the use of reliable contraceptives,
f) the blood groups of the parties,
g) admission of paternity by another man

However, evidence of adultery by the mother will not rebut the presumption in the absence of
evidence that at the time of conception sexual intercourse between the husband and the wife did
not take place.

Where a child is born to a married woman so soon after the marriage ceremony that it shows
premarital conception it is presumed as though the child was born within the said marriage. This
is the same case for a child born soon after the termination of the marriage. It is presumed that
there was conception during the marriage.

In Re Overbury, Sheppard v Matthew2 a child was born only eight months after the divorce of
the wife from her husband. She had remarried to the second husband six months after the divorce
and two months before the birth. The court held that the child was the legitimate child of the first
husband there being no further evidence to rebut the presumption.

In these cases, the date of conception is more determinative than the date of birth.

2. Presumption of death

This presumption is provided for under section 118A of the Evidence Act. The Act 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.”3

To infer this presumption, the court considers the circumstances on this basis:

2
[1955] Ch 122
3
Section 118A Evidence Act, Chapter 80, Laws of Kenya
 i. There are people likely to have heard from the person in question during the preceding
seven years
ii. These persons have not heard from the person in question
iii. All due enquiries have been made as appropriate in the circumstances

In Chard v. Chard4 the court failed to hold the presumption of death of the person because the
parties failed to prove the first basic factor. There was no person who had heard of or from the
person in question in the preceding seven years.

In Prudential Assurance co v. Edmonds the court failed to declare the missing person dead
because the person may have been seen in the streets of Melbourne.

3. Presumption of Marriage

A marriage is presumed to be formally valid if it conforms to the formal requirements of the

marriage of the country (the Lex Loci Celebrationis).

In Piers v Piers5 the couple had celebrated their marriage in a private dwelling and did not get a
marriage license as required by law. The House of Lords held that there was indeed a valid
marriage although the parties did not have a license. Proof of celebration was enough.

On essential validity, a marriage is valid if the parties had capacity. The parties must be of legal
age, not within the limited degrees of consanguinity and must have sound mind. Also if a
marriage is proved to be formally valid, it is presumed that the parties had capacity and so the
marriage is essentially valid. This is rebuttable on statement of evidence to the contrary.

On cohabitation, when a man and a woman live together and hold themselves out as husband
and wife with the result that society regards them as such, the law presumes after such
cohabitation that the couple is married

In Hottensiah Wanjiku Yawe v. Public Trustee6 the East African Court of Appeal held in the
benefit of the Appellant that where a man has lived together with a woman as husband and wife
and the society regards them as so, the two are presumed by law as husband and wife.

4. Presumption of Negligence
4
[1955] 3 WLR 954
5
(1849) 2HL Cas 331
6
CA No. 13 of 1976 (UR)
For negligence to be presumed or arise, the following conditions must be met:

a. There was a duty of care owed

b. The duty was breached
c. The breach led to an injury

This presumption raised the doctrine of Res Ipsa Loquitor as expressed in the case of Scott v.
London & St. Katherine Docks co.7 When the thing is shown to be under the management of the
defendant or his servant and the accident is such that as in the ordinary course of business the
thing does not happen if those who have the management of it use proper care, it affords
reasonable evidence in the absence of why the accident happened from want of care.

Irrebutable Presumption of Law

These are conclusive presumptions. Once presumed the party against whom the presumption
operates is barred from adducing any evidence in rebuttal. It does not allow to be contradicted by
evidence.

For instance section 14 (1) of the Penal code8 it is presumed that a child under the age of 8 years
is incapable of committing a criminal offence.

Another example is that a boy under the age of 12 lacks carnal knowledge.9

Presumption of Fact

They are discretionary inferences that may be drawn upon the establishment of a basic fact.

The Evidence Act provides that 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.10

Instances in which presumptions of fact are held include:

7
[1865] 3 H & C 596
8
Section 14 (1), Penal Code, Chapter 63, Laws of Kenya
9
Ibid s.14(3)
10
Section 4, Evidence Act, Chapter 80
 a) Presumption of guilty knowledge – person in possession of stolen goods and who
cannot give an account of those goods is either the thief or has received them knowing
them to be stolen.
b) Presumption of intention -a man intends the natural consequences of his acts
c) Presumption of likely facts or immutability of things – section 119 of the Evidence
Act. 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.

In the case of Kanji & Kanji v R the presumption of continuance was held. The victim had been
injured and his arm amputated due to an accident with the sisal machinery in April. An
Inspection in September showed that there was still no protection and so the court found that
there could likely have been none in April when the accident occurred thus continuance.

d) The presumption that the common course of business has been followed in a particular
case – based on business practice.
e) The presumption that evidence which could be produced but has not been not produced
would, if produced, be unfavorable to the person who withholds it.
f) The presumption that accomplices are unworthy of credit and that their evidence should
not be used to convict without corroboration

Distinction Between Presumptions of Fact and Presumptions of Law

1) Presumptions of law derive their force from law while those of fact derive their force
from common sense and logic.
2) A presumption of fact applies to a class and so the conditions to be met are uniform
whereas a presumption of law is applicable to individual cases based on the
circumstances of each and the conditions are therefore not similar and fluctuating.
3) Presumptions of law are conclusive in the absence of opposing evidence while
presumptions of fact, no matter how cogent, cannot be irrebuttable.
QUESTION 2:

Discuss the relevant conditions that must be full filled in the production of;

i. Electronic evidence
ii. Secondary evidence
I. Electronic Evidence
 This is provided for in section 106 of the Evidence Act. It states that:

“Notwithstanding anything contained in this Act, any information contained in an electronic

record which is printed on a paper, stored, recorded or copied on optical or electro-magnetic
media produced by a computer (herein referred to as computer output) shall be deemed to be
also a document, if the conditions mentioned in this section are satisfied in relation to the
information and computer in question and shall be admissible in any proceedings, without
further proof or production of the original, as evidence of any contents of the original or of any
fact stated therein where direct evidence would be admissible.”

The conditions to be fulfilled as provided for in subsection (1) are:

1) The computer output containing the information was produced by the computer during
the period over which the computer was used to store or process information for any
activities regularly carried out over that period by a person having lawful control over the
use of the computer;

2) During the said period, information of the kind contained in the electronic record or of
the kind from which the information so contained is derived was regularly fed into the
computer in the ordinary course of the said activities;
3) Throughout the material part of the said period, the computer was operating properly or,
if not, then in respect of any period in which it was not operating properly or was out of
operation during that part of the period, was not such as to affect the electronic record or
the accuracy of its content; and,
4) The information contained in the electronic record reproduces or is derived from such
information fed into the computer in the ordinary course of the said activities.

II. Secondary Evidence

Secondary evidence is admissible where there is no primary evidence. Secondary evidence

by definition is evidence that by its nature suggests the existence of better evidence and
might be rejected that better evidence is available (e.g. a copy of a document).
Section 66 subsections (a) and (b) provides that;

“Certified copies given under the provisions hereinafter contained; copies made from the
original by mechanical processes which in themselves ensure the accuracy of the copy, and
copies compared with such copies”

Part III section 64 also has provisions that documentary evidence may be produced either in
primary or secondary form.

Section 66 subsections (a) and (b) provides that;

“Certified copies given under the provisions hereinafter contained; copies made from the
original by mechanical processes which in themselves ensure the accuracy of the copy, and
copies compared with such copies”

Section 68 also provides for proof of documents provided as secondary evidence Secondary
evidence may be given of the existence, condition or contents of a document in the following
cases–

(a) When the original is shown or appears to be in the possession or power of–

(I) the person against whom the document is sought to be proved; or

(ii) A person out of reach of, or not subject to, the process of the court;

(iii) Any person legally bound to produce it, and when, after the notice required by section 69 of
this Act has been given, such person refuses or fails to produce it;

BIBLIOGRAPHY

The Penal Code, Chapter 63, Laws of Kenya

Evidence Act, Chapter 80, Laws of Kenya