EVIDENCE LAW

GPR 215
LESSON 2: Introduction

1
 Key Definitions & Concepts

● Evidence
● Facts
● Proof
● Law of of Evidence
● Relevance of Facts and Evidence
● Admissibility of evidence
● Wight of Evidence
● Circumstantial Evidence 2
 Evidence

Section 3 (1) of the Evidence Act defines “evidence” in the following

terms:

“evidence” denotes a means by which an alleged matter of fact, the truth

of which is submitted to investigation, is proved or disproved….”

Evidence may be presented or taken in various forms including –

Oral testimony, affidavits, written statements, documents, observation by
trier of facts, real evidence, electronic forms
 Witness Testimony

● Evidence does not adduce itself.

● A witness is a person called to adduce evidence. Consider

emergence of robotics.

● Testimony is the oral statement of a witness.

● Affidavits and Written Statements are now becoming more

frequently used in place of testimony.
 Facts

Section 3 (1) of the Evidence Act defines “fact” as including-

“(a) any thing, state of things, or relation of things, capable of

being perceived by the senses; and
(b) any mental condition of which any person is conscious”

Generally witnesses in adducing evidence are supposed to

present facts, not opinions or inference
 Facts in Issue

“Facts in issue” refers to those facts whose proof is necessary in order to establish
a valid cause of action or defence to a cause of action, and the existence of which
is asserted by one party and denied by one or more of the parties to legal
proceedings.

The determination of facts in issue depends on:

(i) the substantive law on which a case is based (say, the law of tort or the law of
contract); and

(ii) the allegations made by the parties in their pleadings in civil matters and in
charge sheet in criminal matters
 Facts in Issue

Section 3 (1) of the Evidence Act defines “facts in issue” as:

“any fact from which, either by itself or in connexion with
other facts, the existence, non-existence, nature or extent of
any right, liability or disability, asserted or denied in any suit
or proceeding, necessarily follows.”
 Proof and Disproof

Proof and Disproof refers to the establishment or refutation

of an alleged fact. Proof or disproof is that which leads to a
conclusion as to the truth or falsity of alleged facts that are
the subject of inquiry.

According to section 3 (2) of the Evidence Act,

a fact is proved when, after considering the matters before it, the
court either believes it to exist, or considers its existence so
probable that a prudent man ought, in the circumstances of the
particular case, to act upon the supposition that it exists.
 Proof and Disproof

section 3 (3) of the Evidence Act states that

a fact is disproved when, after considering the matters before

it, the court either believes that it does not exist, or considers its
non-existence so probable that a prudent man ought, in the
circumstances of the particular case, to act upon the supposition
that it does not exist.
 Relevance of Facts Evidence

Generally a fact will be relevant if it is a fact in issue

Consequently evidence necessary for the purposes of proving or

disproving that fact will also be relevant

In DPP v Kilbourne [1973] A.C. 729 at 756 it was stated that

“evidence is relevant if it is logically probative or disprobative of some
matter which requires proof.”
1
0
 Admissibility of Evidence

Admissibility refers to the permissibility in law i.e. does the

law allow the particular material of evidence to be relied
on?

The test is one of law and is mostly informed by the

rationale of prejudice or sometimes public policy
consideration
 Weight of Evidence

Refers to the probative value of Evidence and connotes

“believability” or “necessity”

When one must ask themselves whether it is necessary or

preferable to adduce the evidence or other, one is said to
be testing the weight of evidence.
 Circumstantial Evidence

Sometimes described as indirect evidence and are strictly speaking from

a logic perspective evidence of facts which are not relevant

They refer to evidence of facts which are not in issue but which when
considered may lead to inferences necessary for determining facts in
issue

They are used sparingly and cautiously because of the fear that such
evidence may be manufactured to cast suspicion on another
 Circumstantial Evidence

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

In James Mwangi v Republic [1983] KLR 327, the appellants were convicted
of robbery with violence in respect of a raid on a bank in Naivasha. The
prosecution case depended entirely upon evidence that the appellants had
been found in possession of “ a lot of money” whose source they could not
explain. None of the five accused persons was identified by anyone at the
scene of crime, and the money could not positively be identified as that stolen
from the bank
 Circumstantial Evidence

The Court stated that in a case depending on circumstantial

evidence, in order to justify the inference of guilt:
(1) the incriminating facts must be incompatible with the innocence of
the accused, the guilt of any other person and incapable of
explanation upon any other reasonable hypothesis than that of guilt.

(2) there must be no other coexisting circumstances which would weaken

or destroy the inference.
 Place and Nature of Evidence Law

Evidence Law is the body of law that informs the process of proof and disproof
of facts in legal proceedings. It therefore falls in procedural category of laws.

The Rules discussed in this topic do not apply universally to proceedings other
than courts.

Tribunal Rules will often exempt proceedings before those proceedings from
the strict rules if evidence. The Act, for instance, exempts Arbitration.

Law of Evidence is highly exclusionary in nature based on the need to protect

people who might be adversely affected by allegations hence majority of the
rules of evidence to be discussed tend to start off from a point of general
exclusion.
17