CHAPTER 10

THE BURDEN AND STANDARD OF PROOF

1. MEANING OF BURDEN OF PROOF

Generally, the burden of proof is a metaphorical phrase indicating an obligation to

prove a fact or facts. This duty necessarily involves the adduction of evidence in an
attempt to prove a fact subject to the few circumstances prescribed in the law of
evidence when facts can be established without the production of evidence for
example, when the doctrine of judicial notice is involved in certain circumstances.
The obligation is not enforced by any direct sanction. The penalty for failure to
fulfill the duty, or to discharge the burden, is the risk of the failure to fail in all or
part of the litigation.

J. B Thayer pointed out that the term burden of proof is commonly used in two
senses and this one phrase was for two ideas. One idea was the duty of him who
will lose the case if he does not make out a proposition, and the other was the duty
of going forward in argument or in producing evidence. These two ideas of burden
of proof were adopted by many authors, although with different shades of
meaning. Wigmore said one burden was that of convincing the jury at the end of
the trial, and the other was that of making a prima facie case. Phipson wrote of a
burden of proof on the pleadings, which corresponds to Wigmore’s first burden
and the burden of adducing evidence which was not limited to making out a prima
facie case. Therefore, Thayer’s two burdens have provided a convenient method of
indicating two applications of the primary meaning of the burden of proof and the
recognition of the two burdens has become a conventional usage in the common
law. Today the distinction made is between the burden which lies throughout the
trial of establishing a case, which is usually referred to as the general burden of
proof, and in the sense of the duty of producing evidence at any particular stage
during the trial of a case. In criminal cases the general burden lies with the
prosecution and in civil cases with the Plaintiff. The onus of producing evidence
lies at any time upon the party who would lose the case if no further evidence is
produced at a particular stage of the trial.

Cross maintains that there are four types of burdens; the legal or persuasive
burden, the evidential burden, the provisional burden, and the ultimate burden. The
legal burden is the burden of a party who would lose the issue unless he satisfies
the tribunal of facts to the appropriate degree of conviction. The burden is termed
legal because its incidence are determined by the substantive law. The evidential

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burden is the duty of producing sufficient evidence to raise a particular issue so
that the judge leaves the issue to the jury or assessors or to require the judge to
consider the evidence when he comes to decide whether or not the legal burden has
been discharged. For instance in a murder trial the prosecution has the legal burden
of negativing provocation and it is the duty of the accused to produce evidence to
raise the issue of provocation. The evidential burden is then said to be on the
accused. Provisional burden lies on a party against whom a prima facie case has
been made and runs the risk of losing the case if he remains silent; it is then said
that the burden has shifted from the proponent to the opponent. Ultimate burden is
used when the evidential burden shifts completely from the proponent to the
opponent. If the proponent of an issue produces evidence of such cogency that no
reasonable man could help deciding the issue in his favour in the absence of further
evidence, the burden in such a case shifts absolutely or ultimately to the opponent.
It is only presumptions of law which shifts the evidential burden absolutely.

2. GENERAL PRINCIPLES

The general principle relating to legal burden would, as we have seen depend on
whether the case being tried is civil or criminal. In civil cases the legal burden is on
the Plaintiff since it is he who alleges in his Plaint that certain facts exist on which
he bases his claim. In criminal cases the burden lies with the prosecution because
of the common law doctrine that a man is innocent unless the contrary is proved.
This doctrine is now embodied in Article 15 (2) (a) of the Uganda Constitution.
The general rule relating to legal burden is embodied in Section 100 of the
Evidence Act which provides that whoever desires any Court to give judgment as
to any legal right or liability dependent on the existence of facts which he asserts,
must prove that those facts exist. This imposed the general burden of proving facts
on the Plaintiff and the prosecution. The general rule about the evidential burden is
that the burden of proof in a suit or proceeding lies on that person who would fail if
no evidence at all were given on either side as provided in Section 101. In other
words, where there is a legal presumption of fact, the evidential burden shifts
absolutely to a party who would automatically lose the case in absence of any
evidence.

Apart from cases of legal presumptions, the general principle on evidential burden
is that the burden of proof as to any particular fact lies on that party who wishes the
court to believe in its existence; this applies equally to civil and criminal cases
(Section 102), and Section 103 provides that the burden of proving any fact
necessary to be proved in order to enable any person to give evidence of any fact is
on the person who wishes to give such evidence. For instance if A wishes to prove

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a dying declaration by B, A must prove B’s death. If A wishes to prove the content
of a lost document by secondary evidence, A must prove that the document is lost.
If a party wishes to offer a statement by a witness who cannot be found, he must
prove that the witness cannot be found.

3. BURDEN OF PROOF IN CRIMINAL CASES

(i) General principles: the Legal burden on the prosecution.

Under the common law, the accused has no duty to prove his innocence: every
person charged with a criminal offence is presumed innocent unless he is proved
guilty or he has pleaded guilty. If the accused does not plead guilty, the
prosecution must prove beyond reasonable doubt that the accused committed the
offence. This conclusion follows from the general principle that he who asserts
must prove. The prosecution therefore has the right to begin.

The burden on the prosecution was reaffirmed by the House of Lords in

Woolmington versus DPP. The accused was charged with the murder of his wife
by shooting and the defence was accident. At trial, the judge directed the jury that,
when it had been proved that the accused killed the deceased, the burden was on
the accused to justify the killing by proof of provocation or accident. He was
convicted but his appeal was allowed by the House of Lords because the direction
to the jury gave the impression that the legal burden absolutely shifted to the
accused after the prosecution had proved that the deceased was killed by a
conscious act of the prisoner. Once it was proved that the accused his wife, the
evidential burden shifted to him in the sense that he ran a grave risk of being
convicted unless he took steps to negative malice. It seems that the position of the
common law before Woolmington versus DPP was that there was a presumption
of absence of such circumstance as provocation, accident or self defence and
therefore this presumption would shift the legal burden on the accused. The
Woolmington‘s case makes it clear that there was no such presumption.

(ii) The burden of bringing a case within an exception

Section 105 of the Indian Evidence Act as originally applied to the Evidence Act
provided that the legal burden of proving the existence of any circumstances
bringing the case within any exceptions, such as provocation, accident or self
defence, lay upon the accused, and that the court should presume the absence of
such circumstances. However, the decision in the Woolmington’s case led to the
amendment of Section 104 of the U.E.A. in 1936. Under this amendment when a

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person is accused of any offence, the burden of proving the existence of
circumstances bringing the case within any exception or exemption from the law
creating the offence is upon him and the burden of proving any fact especially
within his knowledge is upon him. However the burden shall be deemed to be
discharged if the court is satisfied by evidence given by the prosecution, whether in
cross examination or otherwise that such circumstances or fact exist. It is further
provided that the person accused shall be entitled to be acquitted of the offence
with which he is charged if the court is satisfied that the evidence given by either
the prosecution or defence creates a reasonable doubt as to the guilt of the accused
person in respect of that offence. Nothing in this section will affect the obligation
to establish by evidence any acts, omissions or intentions which are legally
necessary to constitute the offence with which the person accused is charged or
impose on the prosecution the burden of proving that the circumstances bringing a
case within the exception or exemption exist or the burden placed on an accused
person to prove a defence of intoxication or insanity.

Section 104 (1) of the U.E.A was discussed in Paulino Olarker versus Uganda
(Cr. App. 494/69) (M.B. 27/71). A chief Magistrate convicted the Appellant on his
plea of defilement of a girl under 14 years contrary to Section 123 (1) of the Penal
Code and sentenced him to 08 years. On appeal, counsel for the Appellant
submitted that the Appellant who was unrepresented, should have had all the
ingredients of the offence of defilement explained to him carefully and in
particular his attention should have been drawn to subsection 3 which makes it a
sufficient defence to a charge under this section if it is made to appear to the court
that the person charged had reasonable cause to believe and did in fact believed
that the girl was of or above the age of 14 years. It was held by the High Court that
this was a matter especially within the Appellant’s knowledge and the burden of
proving that he came within the qualification of the law creating the offence with
which he was charged, under Section 104 (1) was on the Appellant. In outlining
the facts of the case, the prosecutor had stated that the girl was about 09 and half
years. Confronted with this fact, the Appellant merely stated that it was up to the
court to decide. The court was satisfied that the Appellant had made an
unequivocal plea of guilty to the charge. This section therefore, according to this
decision, seems to assume that the accused person knows the law and it is upon
him to detect and establish the grounds and facts of any exception, defence and
qualification.

In Kongoro versus R (1956) 23 EACA 532, the trial court had held the view that
there were presumptions that every homicide was murder and that every man must
be taken to intend the probable consequences of his acts. The Court of Appeal

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however, stated that there is no such presumption that every homicide is prima
facie murder. Since Woolmington’s case, it is settled that the presumption of sanity
is the only common law presumption which shifts the burden of proof to the
accused in criminal cases embodied in the East African Penal Codes. The
presumption that every man must be taken to intend the natural and probable
consequences of his act does not shift the legal burden of proof from the
prosecution to the accused.

Where an enactment makes provision for exception or defence, the burden of proof
lies on the accused as was settled in Bombay Trading Stores versus R (1962)EA
589. The Appellants were convicted of selling poison to unauthorized person, Mr.
Musoke. The question was whether the onus of proving he was an unauthorized
person lay with the prosecution of the defence. The Court of Appeal was
convinced that the question whether Mr. Musoke was an unauthorized person was
not a matter within the special knowledge of the Appellants. The case was
therefore deciding on the question of burden of proving an exception to the
operation of the law. It was held that in such a situation the onus was on the
Appellants. The sale of poison prima facie created an offence. Therefore, the
burden of bringing circumstances whether the exception lay upon the Appellants. It
seems that this could have also been decided on the basis of the shifting of the
burden of proof in cases of legal presumptions.

(iii) Burden of proving intoxication.

Owing to the special provision in the Penal Code on intoxication, the defence of
intoxication falls under the categories of ultimate burden. It is provided in Section
104 (2) (c) that the burden placed upon an accused to prove a defence of
intoxication and insanity are unaffected by the provisions of Section 104.
Therefore in cases involving the defence of intoxication, the burden of proof is
determined by Section 13 of the Uganda Penal Code. The onus is on the defence to
establish the degree of intoxication necessary to excuse a killing or to reduce it to
manslaughter as was stated in Nyamweru versus R (1953) 20 EACA 192. The
Court of Appeal held in R versus Odima (1941) 8 EACA 29 that, in such a case,
it is sufficient for the defence to raise a reasonable doubt in his favour as to his
being capable of forming the necessary intention. However, as pointed out by
Durand, it does not seem clear whether raising a reasonable doubt and
demonstrating the probability of what he seeks to prove are the same standards of
proof. It should be stressed that while the accused has the burden of proving the
defence to a reasonable degree of probability, the burden of proving intention
remains on the prosecution throughout. It was held in Cheminingwa versus R

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(1956) 23 EACA 451 that intoxication may provide a defence either by enabling
the accused prove temporary insanity or by indicating that he was incapable of
forming the intention necessary to constitute the offence. In the first case, the onus
is on the accused to show the insanity. In the second, the onus never shifts from the
prosecution. Unless the intention is proved, the case will fail at the outset and the
judge in this case had erred as to the onus on this point. It was thus stressed in
Kiett versus R (1959) EA 797 that it is an established principle that the burden of
proving that the accused was capable of forming the necessary intention to
constitute the offence of murder always on the prosecution.

(iv) Burden of proving insanity

The burden of proof relating to the defence of insanity in general is governed by

Section 11 of the Penal Code. This Section reiterates the English law to the effect
that every person is presumed to be of sound mind until the contrary is proved.
“Every person is presumed to be of sound mind and to have been of sound
mind at any time which comes in question, until the contrary is proved.”
Here again, as in the case of intoxication the legal burden to prove the case against
the accused is on the prosecution. However, when insanity is advanced by the
defence, the burden of proof to raise a doubt as to the sanity of the accused is on
the defence as illustrated by the following cases. The earlier judicial view
expressed in R versus Ross (1932) 14 KALR 48 was that on a trial for murder
where the defence was insanity, the accused must satisfy the jury beyond
reasonable doubt, if the defence of insanity is to succeed that he was insane at the
time of committing the act. This case has not been followed. In R versus Mwose
(1948) 15 EACA 161, it was held that the well established law was that the onus
on the defence to establish insanity was no higher than that of a party to a civil case
on whom is laid the burden of proving a particular issue. Sodeman versus R
(1946) 2 ALLER 1138 and R versus Kanji (1937) 4 EACA 34 were followed in
the Mwose’s case. In R versus Kachinga (1946) 13 EACA 135, the Court said
that it was sufficient if the accused produced such preponderance of evidence as to
show that he was most probably insane at the time of the commission of the
offence. In Godiyano Barongo versus R (1952) 19 EACA 229, the Appellant was
convicted of murder because the judge refused to believe that his intoxication was
so complete as to amount to legal insanity. The Court of Appeal held that the
burden resting upon the accused, when attempting to rebut a natural presumption
which must prevail unless the contrary is proved, will never be so heavy as that
which rests upon the prosecution to prove the facts which they have to establish
and it will not be higher than the burden which rests on the Plaintiff or Defendant
in civil proceedings. It must, however, establish the probability of what is sought to

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be proved. In a recent case, R versus Kiunga (1963) EA 1, the Court of Appeal
stated that the accused must show that insanity is more likely than sanity, though it
may be ever so little more likely than sanity. Merely to a raise a reasonable doubt
might still leave the balance tilted on the side of sanity.
Indeed from the different languages employed by the courts, it would seem in
substance that for a defence of insanity to succeed the accused must prove his case
on the balance of probabilities; which is the same as the standard of proof in civil
cases. It seems clear that the three standards of proof recognized in America –
proof on the preponderance of probability, proof by clear, strong and cogent
evidence and proof beyond reasonable doubt have not been applied in East Africa
as is clear from the language used in R versu Kamau, supra.

(v) Proving Alibi.

On alibi the question of burden of proof was discussed in the following cases. In R
versus Sebwato (1960) EA 174, the accused was charged with robbery with
violence contrary to Section 273 of the Penal Code and he set up an alibi. The
accused elected to give evidence on oath and swore he was at home all the night
and this was supported by his wife.
Lyon J., said;
“That the accused, well known to the complainant, should go with seven
other men to commit an organized robbery in a house where he was well
known seems to me to be unexplicable. He must have known he was bound
to be recognized and that, in my view casts doubts on the evidence of the
complainant and his wife … In fact I have been very anxious over this case
since the last hearing; and that alone shows that I have some doubt in my
mind and it is a substantial doubt.”

The accused was therefore acquitted. In Saidi versus Republic (1963) EA 6, the
Appellant was convicted of conversion. According to the prosecution evidence the
Appellant was found pushing the motor cycle by the police, but he ran away. The
Appellant had put forward a defence of alibi, and a defence witness described by
the magistrate as honest and reliable gave evidence that the appellant was at
material time sleeping innocently miles away from the scene of crime. The
magistrate reached the conclusion that the police was not mistaken. On appeal, it
was held that an accused person putting forward an alibi as an answer to a charge
made against him does not in law thereby bear any burden of proving that answer.

All he needs to do is to introduce into the mind of court a doubt that is not
unreasonable, then the court must acquit him as was held in R versus Johnson

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(1961) 3 ALLER 969. In Sekitoleko versus Uganda (1967) EA 531, the
Appellant was charged with robbery and his defence was alibi. In the course of his
judgment, the learned magistrate said that the burden of proving the alibi was on
the accused, who was convicted. On appeal, Sir Udo Udoma C.J, following R
versus Johnson, supra, stated that “as a general rule the burden of proving the guilt
of the prisoner beyond reasonable doubt never shifts whether the defence set up is
alibi or something else. The burden always rests on the prosecution. Following
Aniseth versus Republic (1963) EA 206 and R versus Olango (1937) 4 EACA
46, it was held that the burden of proving alibi does not lie on the prisoner and the
trial magistrate misdirected himself. In Uganda versus Sebyala and Others
(1969) EA 204, the second accused was acquitted because the accused did not
have to establish that his alibi was reasonably true. All he had to do was to create a
doubt as to the strength of the case for the prosecution. When the prosecution case
was thin, an alibi which was not particularly strong might very well raise doubts.

(vi) Proving diminished responsibility.

The question of burden of proof when the defence is that the accused acted under
diminished responsibility is provide for under Section 188A of the Uganda Penal
Code. As in the case of insanity, it is for the defence to prove that the accused was
suffering from such abnormality as to bring him within the scope of such a
defence. As stated by Morris there is, likewise, a presumption that at the trial the
accused is fit to plead. If, however, the court has reason to doubt this fitness, as
was settled in Kaplotwa versus R (1957) EA 553 then it must enquire into the
matter and the onus is on the prosecution to prove the fitness of the accused.

(vii) Statutes placing the onus on the accused.

There are many East African statutes under the provisions of which the burden of
proof is cast upon the accused. The Kenya Wild Animals Protection Act states that
whenever a person is charged with possessing any game animal or trophy obtained
in contravention of the Act, and it is proved that there was possession, then the
onus is on the accused to prove that he came by it lawfully. The Uganda Mining At
states that if any mineral is found in the possession or control of any person that
person shall, unless he proves that he obtained it lawfully be guilty of the offence.
The Tanganyika Diamond Industry Protection Act (Cap 129) Section 3 (1) states
that if any diamond is found I the possession power or control of any person, that
person shall, unless he proves that he obtained it lawfully be guilty of the offence.
This provision was considered in R versus Metha (1946) 13 EACA 80. The
accused contended that the diamonds were planted on him. The Court of Appeal

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stated if the accused raised a reasonable doubt the diamonds were planted on him,
he was entitled to acquittal. Referring to Queen versus Tolson (1889) 23 Q.B.D.
at page 175, the court considered it beyond question that the Defendant might
excuse himself by showing that he came innocently into possession and treated the
unqualified words of the statute as merely shifting the burden of proof and making
it necessary for the prosecution to show existence of a guilty mind. It is upon the
accused to prove that the violation of the law which had taken place had been
committed accidentally or innocently as far as he was concerned.

(viii) Proving facts especially within the knowledge of the accused.

Section 104 (1) of the U.E.A. also provides that the burden of proving any fact
especially within the knowledge of the accused is upon him, subject to the two
provisos (a) and (b) under that sub-section. The Court of Appeal in Mwaitige
versus R (1961) EA 470 at page 475 referred to the opinion of the privy council
in Attygalle versus R (1936) 2 ALLER 116 and Senevirante versus R (1936) 3
ALLER 36 and stated that the obligation cast by Section 104 (1) on the accused
person of proving any fact especially within his knowledge does not cast upon him
the burden of proving that no crime was committed. In Ismail versus R (1955) 22
EACA 461, it was held that the word “especially” within the knowledge of the
accused was wider and less favourable to the accused than “peculiarly” within the
knowledge of the accused used in R versus Oliver (1944) K.B. 68 and the words
“especially” or “peculiarly” within the knowledge of the accused does not mean
that the matter must be exclusively within the knowledge of the accused. In the
Ismail’s case, supra, the accused was convicted for being in possession of firearm
and ammunition without the requisite certificate. Possession was proved and
admitted, but no evidence was called on either side concerning the certificate. The
court held that possession of a firearm license was a matter which fell within the
knowledge of the Appellant. In Nkozi and Another versus R (1961) E.A 575, it
was held that where vehicles carried passengers for hire or reward, it was a public
service vehicle in Section 2 of the Traffic Ordinance, and under Section 105 of the
Indian Evidence Act the onus was upon the first Appellant to show that there was a
public service vehicle in force. In the Mwaitige’s case above, it was held by the
Court of Appeal that identity of the producer of coffee and the district in which it
was grown were not facts within the knowledge of a seller of coffee for it might
have passed through other hands since it left the producer and before the accused
acquired it. In Kanji and Kanji versus R (1961) E.A. 411, the Appellant firm was
convicted under causing bodily injury to a person by failing to fence securely the
feed aperture of a sisal decorticating machine. The magistrate had made a finding
upon the condition of the machine on the date of the accident from the evidence of

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the factory inspector who inspected the machine about five months after the
accident. On appeal to the High Court, the judge held inter alia that the magistrate
was entitled to assume that the machine was in the same condition on the date of
the accident as when inspected. On appeal to the Court of Appeal, it was argued
that the condition of the machine some five months after the accident could not
establish the state of the machine at the date of the accident and that the learned
judge was wrong to rely on Section 105 of the Indian Evidence Act to supply a gap
in the prosecution. It was held that the learned judge was wrong to hold that a
charge occurring in the machine during the five months was a matter especially
within the knowledge of the Appellant firm within Section 105 of the Indian
Evidence Act. It was well established in Attygalle’s case, above, that the Section
does not cast upon an accused person the burden of proving that no crime was
committed. It was evident that the prosecution would have had no difficulty in
finding a witness to state categorically whether or not there had been any material
charge in the machine within the five months. In Chandaria versus R (1966) E.A.
246, the accused was convicted on eleven counts of attempting to commit offences
under the Exchange Control Act by mailing currency to a person in London. The
prosecution argued that once it was established that the person to whom currency
was mailed was outside the scheduled territories, the burden of proof would shift to
the accused under Section 111 of the K.E.A., similar to Section 104 of the U.E.A.,
relying on the Ismail’s case. It was held that Section 111 of the K.E.A. would not
apply because a fact relating to someone else could not be especially within the
knowledge of the appellant. In the cases cited, the accused’s knowledge was
knowledge of his own, personal, circumstances – for instance one must know his
nationality, the ingredients of the sausages he made, and whether or not he had
obtained a firearm certificate.

(ix) Proving lawful entry in immigration cases.

Generally in immigration case, the burden of proving that the entry is lawful is on
the accused, as illustrated by Patel versus AG Kenya (1960) E.A. 388. The
Appellant entered Kenya as an adopted son of a resident in Kenya.
After 13 years of residence, he was served with a removal order on the ground that
he was a prohibited immigrant. He sued for a declaration that his entry was lawful
and the suit was dismissed by the Supreme Court because he had not proved his
adoption. The Appellant appealed contending, interalia, that the onus of proof was
on the crown to show that the Appellant was not an adopted son. It was held that
the onus of proving the fact of adoption was on the Appellant because Section 18
(2) of the Immigration Act provided that the burden of proving any person was not
a prohibited immigrant was on that person and under Section 106 of the Indian

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Evidence Act, the burden of proving that the Appellant was an adopted son would
rest upon him as being a fact especially within his knowledge. The crown could not
possibly discharge such an onus with regards to immigrants. It was also held in an
earlier case of Devraj versus R (1955) 22 EACA 488, that the onus of proving the
existence of circumstances bringing a case within any exception was by virtue of
Section 104 of the U.E. Ordinance upon the accused. It was for the accused to
prove that he was entitled to remain in the protectorate after the expiry of his
temporary pass. If he had led evidence leaving reasonable doubt on the point on the
mind of the court, he would have been entitled to acquittal.

4. BURDEN OF PROOF IN CIVIL CASES

As we have already seen, one of the general implications of Section 100 of the
U.E.A. is that the burden of proof in civil case lies on the Plaintiff who desires the
court to give judgment for him. It is upon the Plaintiff to establish a prima facie
case. For example in Ali Mahdi versus Mohamed 1961 E.A. 83, The Respondent
claimed compensation under the Workmen’s Compensation Ordinance and alleged
that the Appellant was his employer. It was upon the Respondent as a Plaintiff to
prove that the Appellant was his employer and to lead evidence to establish that he
lost his eyes by an accident arising out of and in the course of the employment. He
led the necessary pieces of evidence on these facts and the Court of Appeal held
that on the evidence available to the trial magistrate it was open to him to find that
the Respondent was an employee and there was evidence to support the finding
that the accident arose out of and in the course of the Respondent’s employment.
Where the Plaintiff relies on customary law, the onus of establishing the customary
law would be on him – Kimani versus Gikanga 1965 E.A. 735. On the same
principle it was held in Mbowe versus Eliufoo 1967 E.A. 240 that in an action
challenging the validity of elections, the burden of proof lay on an unsuccessful
candidate seeking an order that the election was null and void.

Section 105 of the U.E.A provides that in civil proceedings when any fact is
especially within the knowledge of any person, the burden of proving that fact is
upon him. The principle of this section is that where the knowledge of the subject
matter of an allegation is within the peculiar province of a party, it is fair and
proper that the burden of proof must also be there. It is stated by Ratanlal and
Thakore at page 227 that it is the bound dut of a party personally knowing the
circumstances of the case, to give evidence on his own behalf and to submit to
cross examination. His non-apperance as a witness would be the strongest possible
circumstance going to discredit the truth of his case. Two illustrations are given
under Section 106 of the Indian Evidence Act. When a person does an act with

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some intention other than that which the character and circumstances of the act
suggest, the burden of proving that intention is upon him. If A is charged with
travelling in a railway without a ticket, the burden of proving that he had a ticket is
on him.

It was held in Pritam versus Commissioner of Internal Revenue 1961 EA 671,

that it must be peculiarly within the knowledge of the tax payer whether he had
committed fraud or gross negligence in relation to his income, but the burden
created by this section is a burden of proving affirmative facts, not of disproving
facts. In commissioner of Income Tax versus Bapoo 1958 EA 223, it was thus
held that the onus of proving that a tax payer is not liable to assessment as well as
onus of proving excessive assessment is on the tax payer. Please see also
Khambhaita and Others versus Commissioner of Income Tax (1954) 21
EACA 16, where it was settled that the onus was on the tax payer to show that his
original assessment to tax was excessive so that it was for him to satisfy the High
Court on any disputed fact in issue. In Virani versus United Africa Company
(1958) EA 204, the court stated that the facts proved were sufficient to place, by
virtue of Section 106 of the Indian Evidence Act, the onus on the Appellants to
prove two facts both peculiarly within their knowledge, that they had a right to sell
the coffee and that the failure of the Respondents to obtain quiet possession was
not due to any cause for which they were responsible in law.

5. STANDARD OF PROOF.

As evident from the discussion of the preceding sections of this chapter, the burden
of proof and the standard of proof are intimately connected. When it has been
ascertained where the burden of proof lies, it is necessary to know what evidence is
required to discharge it.

Generally under the common law, the party who first adduces evidence must take
out a prima facie, that is he must give the minimum of evidence necessary to prove
his allegations. However, as he would usually have no further opportunity of
adducing evidence, he will attempt to satisfy the standards required to prove the
issues. This standard depends on the type of proceedings – whether it is civil,
criminal or matrimonial proceedings. Broadly speaking, two standards of proof are
recognized under the common law. They are proof on a preponderance of
probabilities, the standard appropriate in civil cases, and proof beyond reasonable
doubt, the proper standard on a criminal charge. Whether the prescribed standard
of proof has been attained may involve question of cogency which is discussed in

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chapter 13 together with corroboration. We should now examine the standard of
proof in civil and criminal.

(i) The standard of proof in criminal cases

(a) Prosecution

In civil cases, the Plaintiff does not need to prove the facts in issue any more than
on the balance of probability, but the prosecution must prove the guilt of the
accused beyond reasonable doubt. Nokes has pointed out that the rule is probably
older than the C19th, but it has become well established during the last century as a
corollary of the presumption of innocence.

In English law, the courts have faced difficulties in defining in practical terms what
is meant by “beyond reasonable doubt” in order to give practical and meaningful
guidance to the jury. Willes J. said in R versus Winsor (1865) 4 F & F 363 that
proving the guilt of an accused beyond reasonable doubt means that a conviction
must be created in the mind of the members of the jury and not merely as a matter
of probability, if it was only an impression from probability their duty was to
acquit. In R versus Kritz (1950) 1 K.B 82 Lord Goddard C.J. expressed the view
that a jury was likely to be confused by attempting to explain what is meant by
proving the guilt of the accused beyond reasonable doubt. He preferred a direction
that the jury should be satisfied and feel sure that the accused is guilty. In R versus
Kritz above, Lord Goddard said,
“Once a judge begins to use the words “beyond reasonable doubt” and to try
to explain what is a reasonable doubt and what is not, he is much more likely
to confuse the jury than if he tells them in plain language, it is the duty of the
prosecution to satisfy you of the prisoner’s guilt.”

In Miller versus Minister of Pensions Denning J., as he then was said,

“That degree is well settled. It need not reach certainty, but it must carry a
high degree of probability. Proof beyond a reasonable doubt does not mean
proof beyond the shadow of a doubt. The law would fail to protect the
community if it admitted fanciful 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 the sentence of course
it is possible but not in the least probable the case is proved beyond
reasonable doubt nothing short of that will suffice.

13
In R versus Hepworth and Fearnley (1955) 2 QB 600 at page 603, Lord
Goddard again said,
“One would be on a safe ground if one said in a criminal case to the jury,
you must be satisfied beyond reasonable doubt, and one could also say you
the jury must be completely satisfied or better still you must be sure of the
prisoner’s guilt.”
Cross quotes the chief justice Dixon C. J of Australia as having said the following
in Dawson versus R (1961) 106 C.L.R. 1, at page 18;
“In my view, it is a mistake to depart from the time –honoured formula. It is
I think used by ordinary people and is understood well enough by the
average man in the community. The attempts to substitute other expressions
of which there have been many examples not only here but in England have
never prospered. It is wise as well as proper to avoid such expressions.”

Cross doubts whether any useful purpose is achieved by further analysis. He says;
“It is open to question whether any useful purpose is served by further
analysis because there is no scale of differing percentages of certainty, and
the suggestion that there is such a scale obscures the nature of the typical
direction to juries in criminal cases. In effect, the juries are told that,
although they come to the conclusion, after considering all the evidence, that
the prisoner probably committed the crme charged, they must not act on that
conclusion by returning a verdict of guilty if they recognize that reasonable
grounds exist for taking the contrary view. The essential difference between
the two standards of proof consists in the effect which those who,
exhypothesi, believe in the probable existence of a certain state of affairs
must give to their doubts on the subject.”

The courts in East Africa have more consistently followed the common law
standard of proof beyond reasonable doubt, with less semantics and efforts at
further analysis and elucidation of what is meant by the phrase beyond reasonable
doubt. In Amgara versus R 1959 EA 654, the court of appeal stressed that it still
of course, remains for the court to be satisfied beyond reasonable doubt as to the
guilt of the accused on the whole of the evidence. Even in the early Kenya case R
versus Ross, above, which has been much criticized, it was clearly stated that the
burden on the prosecution was to prove its case beyond reasonable doubt. In R
versus Popat 1961 EA 263, Sir Kenneth O’Connor stated that the “onus would
then shift on the prosecution of proving each charge beyond reasonable doubt.” In
Sekitoleko versus Uganda 1967 EA 531, Sir Udo Udoma C. J. said “as a general
rule the burden of proving the guilt of the prisoner beyond reasonable doubt never
shifts whether the defence set up is alibi or something else. The burden always

14
rests on the prosecution. In Gandhi versus R 1961 EA 643 Sir Ronald Sinclair C.
J. said “in all these cases the defence is never required to do more than show an
explanation which is reasonably possible in the circumstances, such cases are not
really cases of onus of proof upon the defence in a persuasive sense for in truth in
such cases the onus is upon the prosecution throughout to prove every essential of
the offence beyond reasonable doubt and it never shifts to the defence.”

Although comparatively little fuss has been made in further analysis of the time
honoured phrase, beyond reasonable doubt, it would seem that in giving directions
to assessors there is a real need in East Africa to employ expressions which will
have efficacious practical results and which will make sense to the assessors. There
is a strong objection to the use of beyond reasonable doubt for the following
reasons; first, the concept of reasonableness is a vague, imprecise and relative and
in most local languages spoken in East Africa it is not easy to find its precise
equivalence without being involved in meaningless explanations and
generalizations; secondly the starting point of the degree of proof required might
be easy to establish if one is clear about what is reasonable but the maximum limit
of the standard is infinite. Lord Denning was quick to point out that it does not
necessarily mean and require proof to absolute certainty, and yet he must be aware
that the law would not reject an assiduous effort by the prosecution to prove the
case absolutely. Owing to all these semantic difficulties with beyond reasonable
doubt it is proposed that in East Africa it might be statutory to adopt the following
direction to the assessors; “you must feel sure that the guilt of the accused, from
the evidence adduced by the prosecution and defence, is clearly established to rule
out any possibility of innocence.” It is submitted that in practical terms the
expression beyond reasonable doubts logically means to an ordinary person that
the possibility of innocence is ruled out as a result of the chain and threads of
evidence led by the prosecution taken together with the defence evidence if any. It
follows that the above formula might be more realistically adopted within the East
African social context.

(b) Defence

Generally, as we have seen in relation to the defences of intoxication, alibi,

diminished responsibility and insanity, the standard of proof imposed on the
defence is not to prove innocence but to provide evidence which will establish
reasonable doubts in the minds of the assessors or the court whatever the case may
be. If the evidence adduced by the defence and prosecution leave them in a state of
real doubt, the accused should be acquitted. In Woolmington versus DPP 1935
AC 462 at page 482, the House of Lords held with reference to the defence of a

15
person accused of murder that if the jury are either satisfied with his explanation
or, upon a review of all the evidence, are left in reasonable doubt whether, even if
his explanation be accepted, the act was unintentional or provoked, the prisoner is
entitled to the benefit of doubt.”

On the standard of proof to be met by the defence the East African Courts have
been largely influenced by what the judicial committee said in R versus Sodeman
(1936) 2 ALLER 1138 at 1140; “the burden in cases in which an accused has to
prove insanity may fairly be stated as not being higher than the burden which rests
upon the Plaintiff or Defendant in civil proceedings,” which was cited with
approval by the Court of Criminal Appeal in R versus Carr-Briant 1943 K.B. 607
at page 610 and 611. The rule was applied to the standard of diminished
responsibility in R versus Dunbar (1958) 1 Q.B. 1, C.C.A.

Relying on the above English decisions and dicta the Court of Appeal held in
Barongo versus R (1952) 19 EACA 229 that the burden resting upon the accused
when attempting to rebut a natural presumption which must prevail unless the
contrary is proved will never be so heavy as that which rests upon the prosecution
to prove the facts which they have to establish and it will not be higher than the
burden which rests on a Plaintiff or Defendant in civil proceedings. It must atleast,
however, establish the probability of what is sought to be proved. Earlier in R
versus Kamau (1939) EACA 133, the Court of Appeal held that the burden of
proving the incapacity of insanity is on the defence and the Appellant would be
deemed to have discharged that burden if he has shown that the preponderance of
evidence supports a defence of insanity. The court of appeal in Amgara versus R
1959 EA 654 said at page 658;
“Where as in the instant case, there is a specific provision in a statute placing
the burden of proof regarding a particular matter on the person accused,
there is no need for the prosecution to rely upon Section 105 … and we think
that the application of that section must be excluded, even though it would
otherwise have been applicable and that the principles of English Law
would apply … We do not think that there is any material difference
between Section 105 of the Evidence Act and the English law on the point.”

The Court of Appeal therefore referred to the English law on the point stated in
Phipson on Evidence 9th Edition at page 38 that whenever the burden is on the
accused, he is not in general called to prove it beyond reasonable doubt or in
default to incur a verdict of guilty, it is sufficient if he succeeds in proving a prima
facie case, for then the burden is shifted on the prosecution which has still to
discharge its original onus that never shifts – that of establishing the guilt beyond

16
reasonable doubt. It is therefore clear that the standard of proof on the defence in
East Africa is the same as the standard imposed by English law, proof on the
preponderance of probability.

(ii) The standard of proof in civil cases

As stated by Lord Denning in Miller versus Minister of Pensions, supra, the

standard of proof required in civil cases is well settled both in England and East
Africa. This is also true of the position of the law in East Africa;
“That degree is well settled. It must carry a reasonable degree of probability
but not so high as is required in a criminal case. If the evidence is such that
the tribunal can say, “we think it more probable than not,” the burden is
discharged.

However, as pointed out by Morris, the standard of proof required is not

necessarily the same in all civil cases and will vary according to the gravity of the
matter to be proved. In cases where something akin to a crime is alleged by the
Plaintiff, such as fraud, something more than the mere preponderance of
probabilities will be required.

It was stated in Patel versus Makanji 1957 EA 314 by the Court of Appeal that
allegation of fraud must be strictly proved although the standard of proof may not
be so heavy as to require proof beyond reasonable doubts, something more than a
mere balance of probabilities is required (at page 317). Sir Kenneth O’Connor
accepted Mr. Thornton’s argument in Ilanga versus Manyoka 1961 EA 705 at
page 709 that while the standard of proof required in civil cases is not as high as
the standard of proof required in criminal cases, it was not correct to say or imply
that the standard of proof was the same in all civil cases – namely a mere balance
of probabilities; the standard varies according to the gravity of the matter to be
proved and as the allegation of the present issue was an allegation of breaking and
forcibly taking possibly amounting to theft, the standard of proof required was very
high – atleast as high as required in civil fraud. The learned president cited with
approval what Denning L. J. said in Bater versus Bater (1950) 2 ALLER 458 at
page 459; “many great judges have said that in proportion as the crime is
enormous, so ought the proof to be clear.” In Hornal versus Neuberger Products
Limited (1956) 3 ALLER 970 at page 973, Lord Denning approved the passage
in Bater versus Bater, above and said; “the more serious the allegation the higher
the degree of probability required; but it need not, in a civil case reach the very
high standard required by the criminal law.”

17
Following the general principle of fluctuation of standards of proof in civil cases
discussed above, Morris has suggested that the standard of proving the grounds for
divorce such as adultery and desertion is more akin to that in a criminal case except
in Tanganyika where there appears to be no distinction between the degree of proof
in matrimonial cases and that in other civil cases. The Kenya Matrimonial Causes
Act, Section 9 provides that the court must be “satisfied” on the evidence that the
petitioner’s case is proved. In Stjernholm versus Stjernholm (1955) 28 K.L.R
183, it was held that the word “satisfied” should be read as if it was qualified by
“beyond reasonable doubt.” However, commenting on Section 04 of the English
Matrimonial Causes Act, 1950 Nokes has argued that the ordinary rules as to the
standard of proof in civil proceedings might well be applied to an issue of adultery
in matrimonial causes. He suggests this conclusion is reinforced by section 04
which merely requires the court to be satisfied on the evidence that the case for the
petition has been proved. He also, nevertheless, thinks it probable on the basis of
Preston Jones versus Preston Jones 1951 AC 391 that the standard of proof of
adultery in cases of divorce is higher than the standard in other civil matters.
Section 9 of the Uganda Divorce Act (Cap 215) also uses the phrase “if the court is
satisfied,” Lord Denning has pointed out in Blyth versus Blyth (1966) 1 ALLER
524 at page 535 that the word “satisfied” in the Matrimonial Causes Act refers to
the incidence of the burden of proof rather than the standard of proof, it places the
onus on a Petitioner to satisfy the court by the production of evidence which would
establish and satisfy the courts on the grounds of the petition. He therefore went on
at page 536 – 537;
“So far as the grounds for divorce are concerned, the case, like any civil
case, may be proved by a preponderance of probability, but the degree of
probability depends on the subject matter. In proportion as the offence is
grave, so ought the proof to be clear.”

The East African Court of Appeal seems inclined to support the view expressed in
Preston Jones versus Preston Jones, above. Forbes V.-P., in Mallinson versus
Mallinson 1961 EA 185 at page 189 stated that the burden of proof lies on the
Petitioner …………………………………………………a party to an ordinary
civil action. This view was followed by Spry J.A in Patel versus Patel 1965 EA
560 at page 562. It seems therefore more likely that the standard of proof in
matrimonial cases would be generally higher in East Africa. The tacit suggestion
by Denning L.J. in Blyth versus Blyth above, that as a general rule the standard of
proof in matrimonial cases is the same as that in an ordinary case, but the degree
should fluctuate with the proportionate gravity of the allegation, has not yet
apparently been considered herein. It is submitted that the standard suggested by
Denning L.J. necessarily involves the individualism of legal categories and

18
applying different standards to different situations. It may be an orthodox juristic
technique to treat each situation according to the peculiar circumstances to meet
the requirements of ethical relativism. However, since the standard of proof
required in each situation involves reference to degrees of certainty, a vague
concept – it seems logically futile to suppose or create many unique categories to
which no uniform and precise standards can be neatly fitted or applied. The use of
the expressions a “little bit more” or a “little bit less” than the preponderance of
probability have no specific meaning and content which can be meaningfully and
realistically applied in any given situation. In other words, we would like to put it
that the problem can neither be solved by an easy resort to the traditional proof on
the preponderance of probability, which is equally vague, nor by the adoption of
new suggested by Denning; in proportion as the offence is grave, so ought the
proof be clear. The question off cogency or of the impact of evidence on the judge,
jury or assessors is basically subjective. It is on this ground that it is probably
sufficient for human purposes to maintain the dichotomous standards for criminal
and civil cases and discourage the multiplication of numerous categories by, first,
applying different standards for matrimonial cases and then different standards of
proof in proportion as the offence is great. It may thus be a mistake to depart from
the time – honoured dichotomous formulae. What the law should really do is to
impose on the judges, jurors and assessors an effective mechanism for checks and
balances or for psychological multi-functionalism to militate against both
impetuous and over cautious intellectual reaction to evidence adduced before them.
It would seem to us that there are no other better tools for effective, self operating
and built in checks and individual accountability of the judges, jurors and assessors
other than the time honoured proof beyond reasonable doubt and proof on the
preponderance of probability.

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