THE LAW OF EVIDENCE ARRANGEMENT OF SECTIONS CHAPTER I-PRELIMINARY Section 1Short title. 2Application. 3Interpretation.

4Presumptions of fact CHAPTER IIADMISSIBILITYAND RELEVANCY Part I-General 5 General restriction on admissibility of evidence. 6Facts forming part of same transaction. 7Facts causing or caused by other facts. 8Facts relating to motive, preparation and conduct. 9Explanatory and introductory facts, etc. 10Statements and actions referring to common intention. 11Facts inconsistent with, or affecting probability of, other facts. 12Facts affecting quantum of damages. 13Facts affecting existence of right or custom. 14Facts showing state of mind or feeling. 15Facts showing system. 16Facts showing course of business. Part II Admissions 17Admissions defined generally. 18Statements by party to suit or agent or interested person. 19Statements by persons whose position or liability must be proved as against party to suit. 20Statements by persons expressly referred to by party to suit. 21Proof of admissions against persons making them, and by or on their behalf. 22Oral admissions as to contents of documents. 23Admissions made without prejudice in civil cases. 24Effect of admissions Part IIIConfessions 25Confession defined. 25A - Confessions generally inadmissible. 26Confessions and admissions caused by inducement, threat or promise. 27Confession made after removal of impression caused by inducement, threat or promise. 28Repealed 1

29Confessions to police officers. 30 Repealed 31 32Confession implicating co-accused. Part IVStatements by Persons who Cannot be Called as Witnesses 33Statement by deceased person, etc., when (a) relating to cause of death (b) made in the course of business (c) against the interest of maker (d) an opinion as to public right or custom (e) relating to existence of relationship (f) relating to family affairs (g) relating to a transaction creating or asserting, etc., a custom (h) made by several persons and expressing feelings. 34Admissibility of evidence given in previous proceedings. Part VStatements in Documents Produced in Civil Proceedings 35Admissibility of documentary evidence as to facts in issue. 36Weight to be attached to statement admissible under section 35. Part VIStatements under Special Circumstances 37Entries in books of account. 38Entries in public records. 39Statements, etc., in maps, charts and plans. 40Statement of fact contained in laws and official gazettes, etc. 41Statements as to law contained in books. Part VIIExtent to which Statement is Admissible 42Extent of admissibility. Part VIIIJudgments 43Judgments, etc., excluding jurisdiction. 44Judgments in rem. 45Other judgments of a public nature. 46Inadmissible judgments. 47Proof that judgment was incompetent or obtained by fraud or collusion. 47AProof of guilt. Part IXOpinions 48Opinions of experts. 49Facts bearing upon opinions of experts. 50Opinion as to hand writing. 51Opinion relating to customs and rights. 52Opinions of persons with special knowledge. 2

53Opinion on relationship. 54Grounds of opinion. Part XCharacter 55Character in civil cases. 56Good character in criminal cases. 57Bad character in criminal cases. 58Definition of character CHAPTER IIIPROOF Part I Facts Requiring No Proof 59Facts judicially noticed. 60Facts of which court shall take judicial notice. 61Facts admitted in civil proceedings. Part IIOral Evidence 62Oral evidence. 63Oral evidence must be direct. Part IIIDocumentary Evidence 64Proof of contents of documents. 65Primary evidence. 66Secondary evidence. 67Proof of documents by primary evidence. 68Proof of documents by secondary evidence. 69Notice to produce a document. 70Proof of allegation that persons signed or wrote a document. 71Proof of execution of document required by law to be attested. 72Proof where no attesting witness found. 73Admission of execution of attested document. 74Proof where attesting witness denies execution. 75Proof of document not required to be attested. 76Comparison of signatures, seals, etc. 77Reports by Government analysts and geologists 78Photographic evidenceadmissibility of certificate. Part IVPublic Documents 79Distinction between public and private documents. 80Certified copies of public documents. 81Proof by certified copies. 82Proof of certain public documents. Part VPresumptions as to Documents 83Certified documents. 84Records of evidence. 3

85Gazette, etc., to be prima facie evidence. 86Gazettes, newspapers, and documents produced from proper custody. 87Publications generally. 88Documents admissible in England. 89Maps or plans. 90Laws and judicial reports. 91Powers of attorney. 92Certified copies of foreign judicial records. 93Books, maps and charts. 94Telegraphic messages. 95Presumption as to due execution, etc. 96Documents twenty years old. Part VIExclusion of Oral by Documentary Evidence 97Written contracts and grants. 98Evidence of oral agreement. 99Evidence to explain a patent ambiguity. 100Evidence to show inapplicability. 101Evidence to explain a latent ambiguity. 102Evidence of application to one of several subjects. 103Evidence of application to one of several sets of facts. 104Evidence to explain special words. 105Evidence of variation given by third parties. 106Wills. 106ASection 106B to apply in proof of electronic records. 106BAdmissibility of electronic records. 106CProof as to electronic signature. 106DProof as to the verification of electronic signature. 106EPresumption as to Gazette in electronic form. 106FPresumption as to electronic agreements. 106GPresumption as to electronic records and electronic signatures. 106HPresumption as to electronic electronic signature certificates. 106IPresumption as to electronic messages. CHAPTER IVPRODUCTION AND EFFECT OF EVIDENCE Part IBurden of Proof 107Burden of proof. 108Incidence of burden. 109Proof of particular fact. 110Proof of admissibility. 111Burden on accused in certain cases. 112Proof of special knowledge in civil proceedings. 113 114 115Disproving apparent special relationship. 4

116Disproving ownership. 117Proof of good faith. 118Conclusive proof of legitimacy. 118A-Presumption of death. 119Presumption of likely facts. Part IIEstoppel 120General estoppel. 121Estoppel of tenant or licensee. 122Estoppel of acceptor of a bill of exchange. 123Estoppel of a bailee, licensee or agent. Part IIIEvidence of Children 124Corroboration required in criminal cases. CHAPTER VWITNESSES Part ICompetency of Witnesses 125Competency generally. 126Dumb witnesses. 127Competency of parties and spouses. (Repealed) Part IICompellability and Privileges of Witnesses Section 128Compellability of ordinary witnesses. 129Privilege of court. 130Communications during marriage. 131Privilege relating to official records. 132Privilege of official communications. 133Privilege relating to information of commission of offences. 134Privilege of advocates. 135Privilege of interpreters, and advocates clerks and servants. 136Waiving of privilege of advocates, etc. 137Communications with an advocate. 138Title deeds and incriminating documents in hands of third party. 139Privileged document in possession of another. 140Bankers books. 141Accomplices. 142Privileges to exclude oral evidence of documents. 143Number of witnesses. Part IIIExamination of Witnesses 144Court to decide as to the admissibility of evidence. 145Types of examination of witnesses. 5

146Order and direction of examinations. Part IVQuestioning of Witnesses 147Person called to produce a document. 148Witness to character. 149Meaning of leading question. 150Leading questions in examination-in-chief and re-examination. 151Leading questions in cross-examination. 152Examination as to whether certain formal matters are contained in writing. 153Cross-examination as to previous written statements. 154Cross-examination as to credibility. 155Compulsion to answer questions as to credit. 156Cross-examination of accused person. 157Discretion of court to compel witness to answer questions as to credit. 158Necessity for grounds before attacking character. 159Indecent or scandalous questions. 160Insulting or annoying questions. 161Discretion to allow cross-examination of own witness. 162Exclusion of evidence to contradict a witness. 163Evidence to impeach the credit of a witness. 164Circumstantial questions to confirm evidence. 165Proof of consistency by former statements. 166Evidence to test statement of person not available as witness. Part VRefreshing of Memory and Production of Documents 167Refreshing memory by reference to contemporaneous writing. 168Reference to accurate contemporaneous record though facts themselves not specifically recalled. 169Rights of adverse party as to contemporaneous writing. 170Production of documents of doubtful admissibility. 171Document produced in answer to notice to be given as evidence if required. 172Consequence of refusal to produce document in answer to notice. 173Extended powers of court for purpose of obtaining proper evidence. Part VIQuestions by Assessors 174- Repealed. CHAPTER VIIMPROPER ADMISSION AND REJECTION OF EVIDENCE 175Effect of improper admission or rejection. CHAPTER VIIBANKERS BOOKS 176Mode of proof of entries in bankers books. 177Proof and verification of copy. 178Restriction on compelling production of bankers book. 179Inspection of bankers books. 6

180Warrant to investigate. 181Costs. CHAPTER VIIIMISCELLANEOUS PROVISIONS 182Saving for other laws. 183Cessation of application of Indian Evidence Act. SCHEDULE.

CHAPTER I-PRELIMINARY What is Evidence? The law of evidence governs the use of testimony and exhibits or other documentary material which is admissible in a court of law. The Evidence Act provides: s. 3 (1) evidence denotes the means by which an alleged matter of fact, the truth of which is submitted to investigated, is proved or disproved; and without prejudice to the foregoing generality, includes statements by accused persons, admissions, and observation by the court in it judicial capacity; Evidence is therefore information which provides grounds for belief that a particular fact or set of facts is true.1 It is information which is used by many different people such as doctors, journalists, scientists, historians and detectives to enquire into the existence or non existence of an infinite number of facts for a wide variety of different purposes. The process of enquiry is based on the assumption that knowledge may be gained by anyone through observation and reason which has been described as the principle of universal cognitive competence.2 This holds that the truth of facts whose existence is in question, may be established by drawing conclusions (inferences) from information which the inquirer has collected for that purpose. Evidence is something which tends to prove or disprove any fact or conclusion.3 It means the information which is placed before a court of law in order to prove the facts in issue. A court should only rely on the evidence, pleadings and matters canvassed before it by counsel or parties but should not constitute itself as a witness on certain matters and having done so rely on the same for a decision.4 Evidence may take the form of oral testimony, documents produced for inspection, real evidence and admissions of facts.

1 2

Dennis I H; The Law of Evidence. Second Edition. London Sweet & Maxwell 2002. Cohen L J, Freedom of Proof in Facts in Law (ed. W L Twining, 1983) pp 3, 10. For a historical treatment of this assumption see J D Jackson, Theories of Truth Finding in Criminal Procedure: An Evolutionary Approach (1988) 10 Cardozo L R 475. 3 May, Richard, Steven Powles; Criminal Evidence. Fifth Edition, London Sweet & Maxwell 2004. 4 Mwanyule v Said t/a Jomvu Total Service Station [2004] 1 KLR 47

Evidence has also been defined as any matter of fact, the effect, tendency, or design of which is to produce in the mind a persuasion, affirmative or dissaffirmative, of the existence of some other matter of fact.5other attempts to define evidence have been: that which makes evident a fact to a judicial tribunal;6 information by which facts tend to be proved;7 any material which tends to persuade the court of the truth or probability of some fact asserted before it;8 something which may satisfy an inquirer of [a] facts existence.9 Evidence has been classified in various ways: a) Direct and Indirect evidence Indirect evidence may be the evidence of a witness of what he himself saw, heard or perceived The evidence of a witness as to his own physical or mental state; or The production of anything. Indirect evidence is the opposite of direct evidence in the sense that it is hearsay (i.e. what the witness heard from another) or circumstantial evidence (i.e. evidence from which inferences may be drawn). b) Original and Hearsay evidence Statements tendered as original evidence are tendered as evidence of what was said irrespective of whether what was said is true or not. Hearsay on the other hand consists of the evidence of statements made out of court which are tendered as evidence of the truth of what was said. c) Primary and Secondary evidence These expressions relate to proof in documentary evidence. Primary evidence is the best which can be given i.e. the original document. Secondary evidence is any other inferior evidence of the document such as a copy or oral evidence of what the document contained. d) Circumstantial evidence This is evidence of circumstances surrounding an event or offence from which a fact in issue may be inferred. The expression refers to evidence of a fact that is not itself a fact in issue but is a fact from which the existence or non existence of a fact in issue can be inferred. Some of the more common examples of circumstantial evidence are: 1. Motive 2. Acts preparatory to the commission of the offence 3. Fingerprints 4. Lies told by the accused 5. Presumptions of fact Where a case falls for decision based on or heavily falls on circumstantial evidence
5 6

Best W M, A Treatise on the Principles of the Law of Evidence, 4th edn, 1866, p 10. Nokes, GD, An Introduction to Evidence, 4th edn, 1967, p 1. 7 Keane, A, The Modern Law of Evidence, 5th edn, 2000, p 1. 8 Murphy, P, Murphy on Evidence, 1995, p 1 9 Tapper, C, Cross and Tapper on Evidence, 9th edn, 1999, p 1.

the law is well settled that first the circumstances from which the inference of guilt is sought to be drawn must be established by cogent and credible evidence. Secondly, those circumstances should point to the guilt of the accused and thirdly, when the said circumstances are taken cumulatively they should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else. In a nutshell the inference of guilt should only be drawn where the facts said to incriminate the accused are incapable of any other rational explanation except the guilt of the accused and are wholly inconsistent with his innocence.10 Once the circumstantial evidence under consideration qualifies application, it is as good as any direct evidence to prove a criminal charge. e) Collateral facts These are facts relating to some subsidiary matter which itself affects the question of whether a fact in issue will be established or not. Examples are facts affecting a witness competence, or weight to be attached to his evidence. fact includes(a) anything, 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; Fact[s] is the object of proof in a given set of legal proceedings in respect of which evidence can properly be adduced. fact in issue means any fact from which, either by itself or in connexion with other facts, the existence or non existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows; This expression refers to those facts alleged in the complaint by a party and is either denied or not admitted by the other party. They are sometimes called the material facts, and may also be referred to by the Latin term facta probanda. They are all the facts which it is necessary for a party to prove in order to succeed in the litigation. They comprise the facts constituting a cause of action in a civil proceeding, or the facts which make up the offence charged in a criminal case, together in either case the facts which must be proved by the defendant to establish a defence.11 In criminal cases the effect of a
10

Omar Chimera v Republic Criminal Appeal No. 56 of 1998; Mwangi v Republic [1983] KLR 522; Juma Mzuri Chovu v eKLR Republic [2009] (where the court observed that the omission to confront the prosecution witnesses, especially the police, on their assertions that the appellant disappeared and could not be arrested for a long period, left that evidence open for assessment as it stands and we have no reason to doubt that the prosecution witnesses were truthful in those assertions. The defence was an afterthought and in our judgment, it was properly rejected. The conduct of disappearance from the scene completed the chain of circumstances that are inconsistent with the appellants innocence and irresistibly point to his guilt.)
11

Dennis I H; The Law of Evidence. Second Edition. London Sweet & Maxwell 2002 at p 6.

plea of not guilty is to declare everything that the substantive law makes material to the offence a fact in issue.12 A fact is proved when after considering the evidence before it a court is convinced that it exists or that it existence would be probable from the point of view of a prudent man. If the opposite is true then the fact is not proved. If the fact is neither proved nor disproved then it is not proved. The Best Evidence Rule The best evidence was that a party must produce the best evidence which the nature of the case would permit. It is a common law rule of evidence which can be traced back at least as far as the 18th century. In Omychund v Barker 13, Lord Harwicke stated that no evidence was admissible unless it was "the best that the nature of the case will allow". The general rule is that secondary evidence, such as a copy or facsimile, will be not admissible if an original document exists, and is not unavailable due to destruction or other circumstances indicating unavailability. This is a rule that has largely been overtaken by time and the only vestige of it that remains is that if the original of a document is available it must be produced.14 The rule did not require the greatest quantity of evidence that could possibly be given of any fact; the object of the rule was to prevent the introduction of any evidence which, from the nature of the case suggested that better evidence was I the possession of the party producing it. So, for example, oral evidence of the physical condition of certain object was rejected when the object could have been produced in court.15 The rationale for the best evidence rule can be understood from the context in which it arose: in the eighteenth century a copy was usually made by hand by a clerk (or even a litigant). The best evidence rule was predicated on the assumption that, if the original was not produced, there was a significant chance of error or fraud in relying on such a copy. In the age of digital facsimiles, etc. the rule is more difficult to justify. The likelihood of actual error (as opposed to mere illegibility) through copying is slight. The balance of convenience favours avoiding needless effort and delay where there is no dispute about the fairness and adequacy of a digital facsimile. Further, it is by no means clear what the 'original' of an electronic communication such as an e-mail actually is: as a great many electronic 'copies' of a message might come into existence from creation to receipt. Lord Denning MR has stated: The old rule, that a party must produce the best evidence that the nature of the case will allow, and that any less good evidence is to be excluded, has gone by the board long ago. The only remaining instance of it is that, if an original document is available on ones hands, one must produce it; that one cannot give secondary evidence by producing a
12 13

R v Sims [1946] KB 531, per Lord Goddard CJ (1745) 1 Atk, 21, 49; 26 ER 15, 33 14 McGreevy v DPP [1973] 57 Cr App. R.424 15 Chenie v Watson [1797] Peake Add Cas 123

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copy. Nowadays we do not confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to weight, and not to admissibility.16 The courts will nowadays admit all evidence best or not only noting that failure to produce the best evidence may diminish the weight attached to it. s. 4 Presumptions of fact. Facts may be inferred from the surrounding circumstances of an event or alleged offence. A presumption of fact is an inference of fact which a court may draw as a matter of common experience once a particular fact is proved. The inferred fact is then said to be presumed until the contrary is proved. Even if the presumption is not contradicted, the court is not bound draw the inference indicated by common experience since such presumptions involve pure questions of fact without need for elaboration.

CHAPTER II- ADMISIBILITY, RELEVANCY AND WEIGHT. 5. Subject to the provisions of this Act and of any other law, no evidence shall be given in any suit or proceeding except evidence of the existence or non-existence of a fact in issue, and of any other fact declared by any provision of this Act to be relevant. 6. Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction are relevant whether they occurred at the same time and place or at different times and places. 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 The only evidence that can be admitted at trial is that which tends to prove the existence or non existence of a fact in issue or relevant fact. Evidence if it does not tend to prove the existence or non existence of a fact in issue is said to be irrelevant and therefore inadmissible. A fact may still be relevant even if not in issue where such fact is so connected with the fact in issue as to form part of the same transaction notwithstanding that they may have happened at different times. Similarly, facts which lead to or result from relevant facts are relevant and therefore admissible in evidence. The law of evidence is concerned primarily with admissibility, i.e. what evidence is admissible whereas relevance is the fundamental condition of admissibility of evidence.
16

Garton v. Hunter [1969] 1 All ER 451, [1969] 2 QB 37

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Evidence is admissible if it may lawfully be admitted at trial. Relevant evidence is admissible because its admission will tend to promote the aims of the law of evidence. The golden rule of admissibility is that all evidence that is relevant is admissible and that which is irrelevant is inadmissible. Relevance In every jurisdiction based on the English common law tradition, evidence must conform to a number of rules and restrictions to be admissible. Evidence must be relevant that is, it must directed at proving or disproving a legal element. However, the relevance of evidence is ordinarily a necessary condition but not a sufficient condition for the admissibility of evidence. For example, relevant evidence may be excluded if it is unfairly prejudicial, confusing, or cumulative. Definitions of relevance have been attempted: a) Stephen defined the word relevant as Any two facts to which it is applied are so related to each other that according to the common course of events, one either taken by itself or in connection with other facts either proves or renders probable the past, present or future existence or non existence of the other.17 This definition has distinct merits. First, the opening words emphasize that relevance is concerned with the relationship between facts: the relationship between the fact sought to be proved and the fact offered in evidence so that the answer requires a precise analysis of the factual issue to which the evidence is claimed to be connected. Second, the definition requires relevance to be assessed according to the common course of events. In deciding whether something may be inferred about the existence of fact A from proof B reliance is to be placed on logic common sense and general experience. This is what Thayer meant when he said the law furnishes no test of relevancy.18 b) Lord Simon of Glaisdale said: Evidence is relevant if it is logically probative or disprobative of some matter which requires proof[L]ogical probativenessdoes not of itself express the element of expedience which is so significant of its operation in lawIt is sufficient to saythat relevant evidence, i.e. logically probative of disprobative evidence is evidence which makes the matter which requires proof more or less probable.19 This definition modifies the reference to probability and might be called the theory of minimum logical relevance because it does not require that the evidence of fact A should make the existence of fact B (the object of proof) probable or improbable; it requires only that fact A should increase or decrease the probability of the existence of fact B. having established fact B we only need ask whether the evidence in question tends to alter that
17 18

J F Stephen, Digest of the Law of Evidence (12th ed., London, 1948), Art 1 J B Thayer( A Preliminary on Evidence at the Common Law [1890] p 265 19 DPP v Kilbourne [1973] AC 729 at 756, HL

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probability? If so the evidence is relevant. Here relevance is a threshold criterion; provided that the evidence tends to increase or decrease the probability of a fact to be proved, it can be said to have potential probative value. The rule that all relevant evidence is admissible is however, subject to certain exceptions independent of the rules of admissibility such as hearsay opinion or character evidence. Evidence may be summarized as relevant if its effect is to make more or less probable the existence of any fact which is in issue. Or, as Lord Steyn put: [to] be relevant the evidence need merely have some tendency in logic and common sense advance the proposition in issue.20 In terms of s.6 a fact which though not in issue is so connected with the fact in issue so as to form part of the same transaction is relevant and therefor admissible as well as a fact which cause, effect or afford opportunity for relevant things to happen are relevant and admissible as res gestae. This position has been supported by Lord Wilberforce in a case21 when he took the definitive position that When a situation of fact (eg a killing) is being considered, the question may arise when does the situation begin and when does it end. It may be arbitrary and artificial to confine the evidence to the firing of the gun or the insertion of the knife without knowing in a broader sense, what was happening. Thus in OLeary v Regem evidence was admitted of assaults, prior to a killing committed by the accused doing what was said to be a continuous orgy. As Dixon J. said: Without evidence of what was during that time, was done by those men who took any significant part in the matter and specifically evidence of the behavior of the prisoner, the transaction of which the alleged murder formed an integral part could not be fully understood and, isolated from it, could only be presented as an unreal and not very intelligible event. Admissibility The rule that al relevant evidence is admissible is subject to certain exceptions since not all matters which are logically relevant are admissible, usually for reasons of policy. When this is the case we say such relevant matter to be inadmissible. These exclusionary rules form an important part of the law of evidence and the most important are: a) b) c) d) e) hearsay statements evidence of a witnesss opinion; evidence of character privilege and public interest the discretion of the court to exclude evidence.

20 21

A (No.2) [2001]2 Cr. App. R. 351, 362. Ratten v The Queen [1971] 3 AER 801 at 806.

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All the above matters may well be relevant, but may well be excluded as too prejudicial to be admitted if the trial is to be fair, or because the matter is for the court, not the witness to decide. Weight Weight is the extent to which an item of evidence makes the case of one of the parties more likely to be true. For an item of evidence to be relevant it is never necessary that it should be conclusive but its not being conclusive will impact on the amount of sway it exerts on the courts decision. It is relevance that gets the item of evidence onto the scale in the first place, but it is weight that dictates the position it takes there. The weightier the evidence, the nearer it will be to one or other extremity on the scale.

CHAPTER III: PROOF Part 1 . Facts Requiring no Proof JUDICIAL NOTICE 59. No fact of which the court shall take judicial notice need be proved. 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; (d) (Deleted by L.N. 22/ 1965). (e) the public seal of Kenya; the seals of all the courts of Kenya; and all seals which any person is authorized by any written law to use; (f) the accession to office, names, titles, functions and signatures of public officers, if the fact of their appointment is notified in the Gazette; (g) the existence, title and national flag of every State and Sovereign recognized by the Government; (h) natural and artificial divisions of time, and geographical divisions of the world, and public holidays; (i) the extent of the territories comprised in the Commonwealth;

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(j) the commencement, continuance and termination of hostilities between Kenya and any other State or body of persons; (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 execution of its process, and also of all advocates and other persons authorized by law to appear or act before it; (l) the rule of the road on land or at sea or in the air; (m) the ordinary course of nature; (n) the meaning of English words; (o) all matters of general or local notoriety; (p) all other matters of which it is directed by any written law to take judicial notice. (2) In all cases within subsection (1), and also on all matters of public history, literature, science or art, the court may resort for its aid to appropriate books or documents of reference. (3) If the court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it considers necessary to enable it to do so. ADMISSIONS Part II - Admissions 17. An admission is a statement, oral or documentary, which suggests any inference as to a fact in issue or relevant fact, and which is made by any of the persons and in the circumstances hereinafter mentioned. Admissions amount to evidence in the sense that when made they tend to prove or disprove any fact or conclusion. Parties may make formal and informal admissions. Formal admissions are a form of proof since they absolve a party who would otherwise have the burden of proof of the fact in question from having to adduce evidence to prove such fact. The existence of the fact in question is taken to be conclusively established and even evidence that would tend to prove it now becomes inadmissible. Formal admissions are binding on the party admitting and he will not be allowed to contradict them. Informal admissions on the other hand are admissions made but without court proceedings in mind and may therefore be withdrawn when convenient. Admissions may be oral or documentary and must be made by a party to proceedings or the agent of such party so that an admission in a proceeding cannot be made by a non-party to proceeding or their agent. 15

18. (1) Statements made by a party to the proceeding, or by an agent to any such party, whom the court regards in the circumstances of the case as expressly or impliedly authorized by him to make them, are admissions. (2) Statements made by parties to suits, suing or sued in a representative character, are not admissions unless they were made while the party making them held that character. (3) Statements made by (a) persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding, and who make the statement in the character of persons so interested; or (b) persons from whom the parties to a suit have derived their interest in the subject-matter of the suit, are admissions if they are made during the continuance of interest of the persons making the statements. For a statement to amount to an admission in a suit , such statement must have been made by a party to the suit or an agent to such party to a suit where the court regards such agent to have been expressly or impliedly authorized to make such admission. In the case of an agent the admission must be with the authority of the Principal. It has been held that evidence of conversation between an advocates clerk and potential witnesses was inadmissible since there was no admissible evidence that the clerk was acting on the authority of the advocates client.22Where the issue was proof whether an advocate wrote a letter on behalf of a client it was held that it was necessary to show that the letter was written on the clients specific instructions.23 Where in a suit parties sue or are sued in a representative capacity any statements they make can only give rise to admissions so long as such statements are made when they are acting as such representative capacity not before or after. When such representative steps out of the cloth of representative they lose capacity to admit. Where a person has a recognized proprietary or monetary interest in the subject matter of the suit or another person who derives such an interest from such a person as aforesaid though they not be parties to the suit such statements as made by them amount to admissions so long as their interest persists. Where a non party to a suit makes a statement and the issue for the at trial court involves a determination of the position or liability such non party as against a party to the suit, such statement would,
22 23

Evans , [1983] Crim L.R. 699 Downer (1880) 14 Cox C.C 486.

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notwithstanding his being non party, amount to an admission if, one, such statement would have been admissible if the non party had actually been a party and two if the statement had been made while such non party occupied such position or was subject to such liability. Where a party to a suit has specifically referred to a non party for specific information which he relies on in the suit then such information may amount to an admission as regards the facts contained therein. An admission when made is not is not necessarily sufficient proof of the fact admitted but will operate as an estoppels should a party attempt to argue otherwise than the admission. 19. Statements made by persons whose position or liability it is necessary to prove as against any party to a suit, are admissions if such statements would be admissible as against such persons in relation to such position or liability in a suit brought by or against them, and if they are made whilst the person making them occupies such position or is subject to such liability. 20. Statements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions. 21. Subject to this Act, an admission may be proved as against the person who makes it or his representative in interest; but an admission cannot be proved by or on behalf of the person who makes it or by his representative in interest, except in the following cases (a) when it is of such a nature that, if the person making it were dead, it would be admissible as between third persons under section 33; (b) when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable; (c) if it is relevant otherwise than as an admission. In terms of sec. 21 admissions which are not based on personal knowledge are not admissible to prove are not admissible to prove a fact not within the knowledge of the maker since person can only admit his own acts, knowledge or intentions but not the acts of other persons which he has not seen and of which he can only have knowledge by hearsay.24Under subsections a, b, and c an exception applies where the maker of the statement was dead an no better knowledge of their evidence was available or where circumstances of
24

See decision of Privy Council in Surujpaul v R [1958] 1 W.L.R 1056, 1056.

17

the statements afforded sufficient guarantees of their reliability to justify their admission. 22. Oral admissions as to the contents of a document may not be proved unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under this Act or unless the genuineness of a document produced is in question. Where evidence comprises the contents of a document a party cannot give oral evidence purporting to admit the contents of such document. It is only I the exceptional case where such party is entitled to give secondary evidence of the contents of such document or the genuineness of such document is in question that such oral evidence of the contents of the document may be allowed. In civil cases the parties to a matter may agree that a fact though it amounts to an admission may not be proved in court at trial for example matters admitted on a without prejudice basis for purposes of negotiations. 23. (1) In civil cases no admission may be proved if it is made either upon an express condition that evidence of it is not to be given or in circumstances from which the court can infer that the parties agreed together that evidence of it should not be given. (2) Nothing in subsection (1) shall be taken to exempt any advocate from giving evidence of any matter of which he may be compelled to give evidence under section 134. 24. Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions hereinafter contained. It is the policy of the law that disputes should be amicably settled, and where possible parties should be at liberty to freely admit certain facts to facilitate a settlement without the fear of such facts being ud against them in subsequent proceedings if the attempt to settle is not successful. The privilege is a rule of evidence which comes from public policy. The Without Prejudice doctrine finds expression in this section, and being a rule of evidence it must not be confined to discovery nor to cases where attempts at settlement have failed alone. Te rationale behind the doctrine is to encourage parties to a dispute to engage in pre trial and out of court settlements without fear that admission of 18

certain facts would be used against them to their prejudice. This section therefore renders inadmissible admissions which the parties either by an express condition or by implication did not intend to be adduced in subsequent proceedings. This accord protection to any pre trial admissions made without prejudice unless the consent of the other party or parties toit is first obtained. The effect of this section is to place a party who entered into pre trial negotiations at liberty to resile before judgment is entered but where judgment is entered into on the basis of such pr trial negotiations such is refered to as a consent judgment and is in the nature of an agreement binding both sides. The effect of a consent judgment is that once it is entered parties to t will b stopped from challenging it later, save only on grounds which would vitiate a contract.25 CONFESSION What is a confession? Section 25 defines a confession thus: Part III Confessions 25. A confession comprises words or conduct, or a combination of words and conduct, from which, whether taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person making it has committed an offence. The core of confession is an inference that a person has committed an offence arising from the utterances and or conduct of such a person. The words or conduct giving rise to confession may stand alone or may be taken together with other facts. A statement made by a person though not amounting to a confession may become one if when taken together with other evidence, reasonably lead to an inference that that the maker has committed an offence.26 Conduct. What would give rise to confession by conduct? The court held that violent and abusive behavior of an accused when arrested was capable of constituting an admission of violent and abusive behavior in a public house earlier in the evening.27 Failure to Reply to an Accusation. What should a court make of an accuseds decision to remain silent in the face of accusations against him? The rule is that an accusation is
25 26

Nzau v Mbuni Transport Company Ltd [1990] 173 Mwaniki v R [1989] KLR 510. 27 Preece v Parry [1983] Crim. L.R. 170

19

not evidence against an accused unless and until he admits what has been alleged against him,28so the fact that an accused fails to reply to an accusation in his presence is not normally evidence against him. An accused is entitled to his right of silence. Exceptions do however, arise so that a court may draw inferences from an accuseds silence under question though this does not abolish the rule above. Where circumstances are such that a reply or a denial of what has been said or asked would have been expected failure to reply is tantamount to an acceptance of an allegation. This principle found expression where an accused was charged with the murder of a young woman by stabbing her. Her mother found her bleeding from the wounds and saw the accused in the compound, holding a knife. Her mother accused the accused twice of stabbing her daughter and he did not bother to reply. Next she grabbed the accused told him she would keep him there until the arrival of police. He then attached her with the knife chopping her finger. The privy council upheld the judges decision that the accuseds reaction including his silence be taken into account in deciding whether he was guilty or not.29 Failure to Reply to Written Allegations. In a limited number of cases failure to reply to allegations contained in correspondence may amount to a confession. A case in point would be the matter of a letter that imperatively demands an answer to an allegation contained therein so that failure to answer would give rise to a confession.30The requirement seems to be more stringent in criminal cases where the courts are expected to be more careful. In a case where the accused was charged with incitement to racial hatred by aiding the publication of a comic which contained racially offensive matter. The prosecution adduced evidence to the accused referring to the comic as your idea and your work and an unfinished reply in his typewriter which made no mention of the comic. The court of appeal doubted whether the letters had properly been admitted.31 In a civil case such doubt would not have arisen as need to reply would be overwhelming. Vicarious Admissions Can a confession arise from the words or conduct of an agent. The position is as stated above that a confession by an agent can only arise where it is made on the principals express or implied authority so that
28 29

See Lord Atkinson in Christie [1914] A.C.545, 554. Mitchell [1892] 17 Cox. C.C. 503, 508. 30 Wiedemann v Walpole [1891] 2 Q.B. 534. Where the court held that failure to answer letters referring to agreements made by the recipient amounts to an admission of the agreement 31 Edwards [1983] Crim.L.R. 539.

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where an advocates clerk held a conversation with a potential witness such conversation was inadmissible since there was no evidence that the clerk was acting on the accuseds authority.32 Admissibility of Confessions. 25A. (1) A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Chief Inspector of Police and a third party of the persons choice. (2) The Attorney General shall in consultation with the Law Society of Kenya, Kenya National Commission on Human Rights and other suitable bodies make rules governing the making of a confession in all instances where the confession is not made in court. This section enacts the common law rule that confessions are admissible against a maker as an exception to the rule against hearsay grounded on the rationale that a person would not admit something against his interests unless it is true. Confessions or facts tending to the proof of guilt made by an accused are to be made only before court but where made out of court must be before a police officer of the rank of or above Chief Inspector and in the presence of a third party of his choice. This amendment raises serious doubts about admissibility of confessions arising out of conduct as contemplated by sec. 25 which arise out of court or away from competent agents. As a precautionary measure and having regard to past experience the rules for confession before police are made by the Attorney General in consultation with the LSK and Kenya National Commission on Human Rights. 26. A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible in a criminal proceeding if the making of the confession or admission appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any
32

Evans. [1981] Crim. L.R. 699.

21

advantage or avoid any evil of a temporal nature in reference to the proceedings against him. 27. If such a confession as is referred to in section 26 is made after the impression caused by any such inducement, threat or promise has, in the opinion of the court, been fully removed, it is admissible. 28 . (Repealed by 5 of 2003, s. 100 .) 29. No confession made to a police officer shall be proved against a person accused of any offence unless such police officer is (a) of or above the rank of, or a rank equivalent to, inspector; or (b) an administrative officer holding first or second class magisterial powers and acting in the capacity of a police officer. 30. (Repealed by 5 of 2003, s. 101. ) 31. (Repealed by 5 of 2003, s. 102. ) This section governs the admissibility of confessions. A confession must be voluntary to be admitted in evidence. Where a confession is shown not to be voluntary as having been caused by inducement, threat or promise proceeding from a person in authority giving the accused reason to believe that making the confession would be advantageous, it is not to be admitted. A confession must also be unequivocal if it is to carry any weight so that before admitting any statement of confession the court must satisfy itself that it was voluntarily given upon holding a trial within a trial. In such an inquiry the onus is on the prosecution to satisfy the court that the alleged confession was obtained voluntarily and that it was admissible. A confession made to a police officer is not admissible in evidence unless that officer is of above the rank of or of a rank equivalent to inspector. Where an accused is convicted on inadmissible evidence an appellate court may nevertheless uphold the conviction where it is clear that there was other evidence that supported the conviction.33 A statement that contains self exculpatory matter cannot amount to a confession if the exculpatory statement is of some fact which, if true would negative the offence alleged to be confessed. In order to amount to a confession, a statement must admit in terms either the offence or substantially all the facts which constitute the offence. An admission of a gravely incriminating fact is not of itself a confessions.34 Repudiated and Retracted Confessions A confession may be disowned when it is said to be repudiated. When it is withdrawn it is said to be retracted. These may be admitted under certain circumstances. A trial court should accept any confession which has been retracted or repudiated or both repudiated
33 34

Owiti v R [1984] KLR 733. Choge v R [1985] KLR 1

22

and retracted with caution and must before basing a conviction on such confession, be fully satisfied that in all the circumstances of the case the confession is true.35 Where a confession is argued not to be voluntary, courts have had to observe that the confession was sufficiently detailed and tallied with the movements of the accused so as to make such confession properly admissible and that it was voluntarily made by the accused hence correctly made in evidence. Such disputed confession may be corroborated by circumstantial evidence which then confirms its admissibility.36 There is no rule of law that a court cannot act on a retracted and or repudiated confession unless it is corroborated in material particulars. But there is a rule of prudence or practice that a court should be cautious when acting on such confession unless it is corroborated in material particulars. But the court could act on it if it came to the conclusion in the light of all the circumstances that the confession could not be true.37 So where a confession is retracted or repudiated, it requires corroboration only as a rule of practice. The court may convict even without corroboration if it is satisfied that the confession cannot be true, subject to its warning itself of the dangers of doing so.38 It is prudent that the court make a specific finding on the record on the issue of a repudiated statement but failure to specifically make a finding is curable under s. 382 of the Criminal Procedure Code cap 75.39

32. (1) When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take the confession into consideration as against such other person as well as against the person who made the confession. (2) In this section confession means any words or conduct, or combination of words and conduct, which has the effect of admitting in terms either an offence or substantially all the facts which constitute an offence; offence includes the abetment of, or an attempt to commit, the offence.
35 36

Macharia v R [2001]KLR 155. Warui v R [2002] 1 KLR 750. 37 Thiongo v R [2004] 2 KLR 38. 38 Odhiambo v R [2002] 1 KLR 39 Njuki & 4 Others v R [2002] 1 KLR 271

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This section makes provision for admission of the confession of an accomplice as against the person confessing as well as the person together with whom they are charged. The practice has been to admit the confession of such accomplice only in s far as it is used to corroborate or supplement evidence where there is substantial evidence to which such confession may be added.40 A confession by an accused person involving his co accused when unsupported by other testimony is evidence of the weakest kind against such a co accused. It is accomplice evidence which needs corroboration and the need for such corroboration becomes even greater when the maker of the statement has sought to retract it. It has been held variously that a confession by one accused person which involves the guilt of another accused person is of itself if unsupported by other testimony evidence of the weakest possible kind against that other accused person. It is accomplice evidence which needs independent corroboration and this need is the greater when the maker has sought to retract it.41Evidence of this kind may only be taken into consideration under section 32(2) to lend assurance to other evidence, but it should not be considered independently.42 The evidential value of a confession by an accused person under this section is that it can only be used as lending assurance to other evidence against the co accused, evidence which narrowly falls short of the standard of proof for conviction. It is not to be used as the basis for the prosecution case. This position though is not to say that corroboration is mandatory in law and a court may act on the confession alone where it is fully satisfied after considering all the material points and surrounding circumstances that the confession cannot possibly be true.43 This section throws up a lacuna where a co accused against whom a confession is taken into consideration has no opportunity to cross examine where the maker of the confession does not give evidence or makes an unsworn statement in court. The practice when dealing with the evidence of an accomplice has been established fairly consistently. The court should first establish whether the accomplice is a credible witness and then look for some independent evidence as corroboration connecting the accused person with the offence.44 Corroboration could take many forms such that the confession of an appellant which was held to be properly admitted was been held to have corroborated the accomplice evidence. It has also been held to be a serious misdirection to treat the evidence of an accomplice as that of a reliable witness the court observing that it should have been held to be untrustworthy for the reason that the accomplice was likely to have sworn falsely in order to shift blame while disregarding the sanctity of the oath to tell the truth.

40 41

Gitau &Anor v R [1989] KLR 187. Choge v R [1985] KLR 1 42 Ngoya v R [1985] KLR 309. 43 MInanga v R [1985] KLR 294 44 Nguku v R [1985] KLR 412

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Where an accused person had originally denied all knowledge of a crime but later admits to committing it the court is best placed to able to get the feeling and the effect of the circumstances in which a confession was made and such finds are to be respected. Where on the one hand a confession is substantially truthful but contains mistakes, in an appropriate case the court may rely on it despite the mistakes. If on the other hand a material element in it is demonstrably untrue and was known to the author, the it must be rejected.45 Part IV - Statements by Persons who cannot be called as witnesses 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 This section is an exception to the rule against hearsay. The rationale for going against the rule is that evidence may be relevant and admissible but due to unavailability of a witness is locked out . This may be detrimental to the parties and the court in arbitrating the dispute. The exceptions are not unlimited so that they only apply in very specific circumstances where the maker is; a) b) c) d) e) Dead; Cannot be found; Has become incapable of giving evidence; His attendance cannot be procured; His attendance can be procured but it would be unreasonably expensive in money and time.

When faced with the foregoing scenario it is open to a court to admit evidence from such persons but again such evidence as is admissible is circumscribed to include only that evidence relating to the following; Dying Declarations (a) when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that persons death comes into question and such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of
45

Shah v R [1984] 674. See also Aneriko v Uganda [1927] EA 193.

25

death, and whatever may be the nature of the proceeding in which the cause of his death comes into question; A statement of a deceased person as to how he met his death falls within this section as a dying declaration which is admissible as an exception to hearsay. The general principle on which a dying declaration is admitted in evidence is that it is a declaration made in extremity when the maker is at the point of death and the mind is induced by the most powerful considerations to tell the truth. However, the admissibility of a dying declaration does not depend upon the declarant being at the time of making it, in a hopeless expectation of death. There need not be corroboration for a dying declaration to support a conviction but the exercise of caution is necessary in the reception into evidence of such a declaration as it is generally unsafe to base a conviction solely on the dying declaration of a deceased person. Once a dying declaration is admitted in evidence, the court has verify it by establishing that the deceased did in fact recognize the accused person as the author of his death. It is unsafe to base a conviction solely on a dying declaration and there is a necessity of caution inherent in the reception of this kind of evidence. It is generally speaking unsafe to base a conviction on the dying declaration of a deceased person made in the absence of the accused and not subject to cross examination, unless there is satisfactory corroboration so that where a deceased in his dying declaration said that the accused had killed him amounted to evidence of the deceaseds belief nut not evidence that the accused had indeed committed the crime.46 Evidence of voice identification is receivable and admissible in court and it can, depending on the circumstances, carry as much weight as visual identification. In verification by the court where the dying declaration was on account of a voice alleged to be that of the accused the court must ensure that; a) The voice was that of the accused b) The witness was familiar with the voice and recognized it c) The conditions obtaining at the time it was made were such there was no mistake in testifying to what was said and who said it.47

46 47

Aluta v R [1985] KLR 543 Mbelle v R [1984] KLR 626

26

(b) when the statement was made by such person in the ordinary course of business, and in particular when it consists of an entry or memorandum made by him in books or records kept in the ordinary course of business or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce, written or signed by him, or of the date of a letter or other document usually dated, written or signed by him; Although this section mentions documents that appear mainly commercial or property transaction documents there is , at the same time in this section, express reference to documents made in the discharge of professional duty which may include post mortem examination reports prepared by medical doctors and pathologists. Before this section can become applicable, the first part of this section regarding the specific categories above which are conditions precedent must be met before this subsection. It is desirable, though that an expert should always attend court and explain to the court his expert opinion and grounds upon which that opinion is based. This acquires more urgency in cases where parties are unrepresented or might have difficulty in understanding the opinion or report without full explanation without full explanation by the expert. This section should therefore only be used in the most exceptional of cases and where the best possible interests of justice permit. (c) when the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages; Where a person makes a statement which is against his pecuniary or proprietary interest it is admissible against him without need to call him to give evidence on the fame facts. Similarly where a person makes a true statement which exposes him or would have exposed him to criminal prosecution or to a suit in civil matters then such statement is admissible without having to call the maker. The rationale behind this provision is that it is improbable that a person would make a false statement against himself knowing the statement to be incriminating. Such statement is only made in secret in the belief that exposure is improbable. Such statement may have been made innocently in the belief that no liability attaches and is ameliorated by the requirement that the statement must be true. 27

(d) when the statement gives the opinion of any such person as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen; An opinion by a person likely to know, as to the existence of a public right or custom or matter of public or general interest is admissible at trial without calling the maker of such opinion. However to be admissible such opinion must have been made before the dispute in which the opinion is proffered arose. The rationale underlying this provision is that such opinion would be a honest one without anticipation of litigation. If such opinion were to be given after commencement of the dispute it would be impossible to have consensus due to entrenched positions by the litigants and the desire to triumph at all costs. (e) when the statement relates to the existence of any relationship by blood, marriage, or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised; A statement by a person relating to family relationship or status i.e whether child, parent, husband, wife etc where the person making the statement regarding such relationship was such as he would be expected to have special means of knowledge of the truthfulness of such statement as he makes. The rationale for this exception is that matters relating to the existence of such relationships are best known to individuals close to them and are not facts that capable of exposure through reason and deduction. Such statement must, for the same reasons as above, have been made before the question in dispute was raised. This may have to change with advances in science and the arrival of DNA testing. (f) when the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised;

28

A statement regarding any relationship by blood, marriage or adoption between persona deceased relating to the affairs of their family, made in a will or deed or tombstone, family portrait or other things on which such statements are usually made may also be admitted for the obvious reason that the maker is dead. Again such statement must have been made before the dispute arose. 34. (1) Evidence given by a witness in a judicial proceeding is admissible in a subsequent judicial proceeding, or at a later stage in the same proceeding, for the purpose of proving the facts which it states, in the following circumstances (a) where the witness is dead, or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or where his presence cannot be obtained without an amount of delay or expense which in the circumstances of the case the court considers unreasonable; (b) the proceeding is between the same parties or their representatives in interest; and (c) the adverse party in the first proceeding had the right and opportunity to cross-examine; and (d) the questions in issue were substantially the same in the first as in the second proceeding. (2) For the purposes of this section (a) the expression judicial proceeding shall be deemed to include any proceeding in which evidence is taken by a person authorized by law to take that evidence on oath; and (b) a criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused. 61. No fact need be proved in any civil proceeding which the parties thereto or their agents agree to admit at the hearing, or which before the hearing they agree, by writing under their hands, to admit, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the court may in its discretion require the facts admitted to be proved otherwise than by such admissions. Part 2: Oral Evidence 62. All facts, except the contents of documents, may be proved by oral evidence. 63. (1) Oral evidence must in all cases be direct evidence. 29

(2) For the purposes of subsection (1), direct evidence means(a) with reference to a fact which could be seen, the evidence of a witness who says he saw it; (b) with reference to a fact which could be heard, the evidence of a witness who says he heard it; (c) with reference to a fact which could be perceived by any other sense or in any other manner, the evidence of a witness who says he perceived it by that sense or in that manner; (d) with reference to an opinion or to the grounds on which that opinion is held, the evidence of the person who holds that opinion or, as the case maybe, who holds it on those grounds: Provided that the opinion of an expert expressed in any treatise commonly offered for sale, and the grounds on which such opinion is held, may be proved by the production of such treatise if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable. (3) If oral evidence refers to the existence or condition of any material thing, other than a document, the court may, if it thinks fit, require the production of such material thing for its inspection. Oral evidence is the evidence of a witness, normally given under oath, to a court as proof of facts stated. They are taken to be true because the witness says they are. A witness may also give evidence in the form of affidavit but we are not here concerned with that. Over the years oral evidence has been the foundation of Common law as reiterated in an Australian case where it was said: A witness who gives evidence orally demonstrates, for good or ill, more about his or her credibility than a witness whose evidence is give in documentary form. Oral evidence is public; written evidence may not be. Oral evidence gives to the trial the atmosphere which, though intangible, is often critical to the jurys estimate of the witness. By generally restricting the jury to consideration of testimonial evidence in its oral form, it is thought that the jurys discussion of the case in the jury room will be more open, the exchange of views among jurors will more easily occur than if the evidence were given in writing or the jurors were each armed with a written transcript of the evidence.48
48

Butera v DPP [1987] 164 CLR 180 at 189.

30

This section requires that witnesses should as far as possible appear personally in court to give oral evidence and to avail himself to be cross-examined on that evidence. The overriding rationale for the requirement for oral evidence is in ensuring that the evidence is credible and reliable. This is ensured by requiring that: First, the witness gives only oral evidence of matters of which he as personal knowledge, second, that such oral evidence be given on oath or affirmation so that the witness risks liability for perjury should he knowingly utter falsehood. Third, oral evidence enables the judge to observe the during testimony the demeanor of a witness so as to able to know the amount of weight to attach to such evidence. Fourth, a witness is open to cross examination during oral testimony so that his evidence is tested for any inconsistencies and contradictions. Finally, during oral evidence it is possible that collateral evidence may emerge from such oral evidence by him to be able to prove bias, disreputable conduct or even previous conviction relevant to the matter at hand.

Part III DOCUMENTARY EVIDENCE 64. The contents of documents may be proved either by primary or by secondary evidence. 65. (1) Primary evidence means the document itself produced for the inspection of the court. 66. Secondary evidence includes (a) certified copies given under the provisions hereinafter contained; (b) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies; (c) copies made from or compared with the original; (d) counterparts of documents as against the parties who did not execute them; (e) oral accounts of the contents of a document given by some person who has himself seen it. What is a document? Generally a document means something, usually paper, in writing from which information can be discerned. In law it is the writing and not the paper which is significant so that a party wishing to rely on the contents of a document must adduce it in evidence. It has long been held that any written thing capable of being evidence is a document no 31

matter what material it was written on.49The definition of evidence should therefore not be confined to writing on paper or even to written things alone since the essential feature of a document is that it conveys information.50Having regard to this proposition tape recordings51 and films52 have been held to be a document. Presently even information stored in a hard disk is considered documentary evidence.53 Electronic data and communications (comprising sounds or images or both) are documentary evidence under s. 65 (5). The contents of a document may be proved either by primary or secondary evidence. Primary evidence is where the original document itself is produced for the court to see whereas secondary evidence is where copies, counterparts or oral accounts of the contents of a document are given in proof. In rare cases it may be possible to adduce primary evidence by other means where for example (i) copies of such documents made under public authority are admissible as evidence and (ii) a party against whom such document are adduced admits the contents of such an inadmissible document thereby eliminating need to object.54 Documents are normally classified as follows: Private Documents Documents that emanate from private persons are known as private documents. As a rule private documents must be proved by primary evidence so that a person seeking to rely on a private document must prove that it has been duly executed by showing that it has indeed been signed by the person who purports to have signed it or in the case of attestation that it has been attested. Proof of execution is done by calling the executing party to identify his own signature on the document. Where the executing party is unavailable his execution can be proved by calling somebody who saw him sign the document or can identify his handwriting. This rule is however limited to written documents and may not be relevant to tapes and films.55 Primary Private Documents:
49 50

Daye [1908] 2 K.B 333, 340. Grant v Southwestern Properties [1975] Ch. 185, 193, per Walton J. 51 See Grant above. 52 Senior v. Holdsworth Ex p.ITN [1976] Q.B.23. 53 Derby & Co. Ltd v Weldon [1991] 1 W.L.R. 652 (Vinelort J:Alliance & Leicester Building Society v Gharemani, The Times, March 19, 1992 (Hoffman J.). 54 Slatterie v Pooley [1840] 6 M.&W. 664. 55 Kajala v Noble [1982] 75 Cr. App.R. 149, 152

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Private documents must be proved by primary evidence but this rule is limited to written documents a rationale traceable to the fact that originally copies were made by hand with the attendant risk of exposure to error during transcription. This is a direct product of the best evidence rule which requires that a party must produce the best evidence which the nature of the case permits. A foremost authority on this rule was a case where an accused was charged with causing a disturbance when a group of youths threw missiles at the police. The accused was identified as among those who threw missiles by a witness who recognized him during a TV news bulletin. During the trial the prosecution relied on a cassette recording of the program and the accused was convicted. He appealed on grounds that since the original film existed, the prosecution should have been allowed to rely on a copy i.e the recording of the TV program. The court did not agree with this argument and in its judgment observed that: The old rule, that a party must produce the best evidence that the nature of the case will allow and that any less good evidence is to be excluded, has gone by the board long ago. The only remaining instance of it is that, if an original document is available in ones hands, one must produce it; that one cannot give secondary evidence by producing a copy. Nowadays we do not confine ourselves to the best evidence. The goodness or badness of it goes only to weight, and not to admissibility.56 Secondary Private Documents: These are usually copies of which presently there are degrees.57The first category is when a witness may give oral evidence of the contents of a document which he has read.58 Copies: Copies may be certified copies which means that they have been certified as true by a person in whose custody the original document has been entrusted or examined copies which means that a copy has been examined and been proved to be an accurate reproduction of the original. Copies of copies: A copy of a copy is admissible by a witness being called to verify that the copy the copy is not only a true copy of the original copy but is also a true copy of the original document.59
56

Ibid at 152. The same point was alsomade by Lloyd L.J, in R.v Governor of Pentonville prison Ex p. Osman [1990] 1 W.L.R. 277, 308 when he said that all that remains of the best evidence rule is that if a party has an original document and does not produce it without reasonable explanation the court will infer the worst. 57 Brown v Woodman [1834] 6 C&P.206, per Parke B; Doe d. Gilbert v Ross [1840] 7 M.&W.102, 106107; Garton v. Hunter [1969] 2 Q.B. 37, 44 per Lord Denning M.R.; Wayte [1983] 76 Cr. App.R. 110, 116. 58 Brown v Woodman , above. 59 Collins [1960] 44 Cr. App. R. 170.

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Microfilm copies: Once a document is microfilmed such microfilm copy may be produced the only requirement being that it is verified in such manner as the court may require which usually takes the form of a witness in whose custody it has been having to be the one to produce it. Hearsay statements: Where a hearsay statement is admissible in evidence itmay be proved by producing either the document or a copy of it authenticated in a manner the court may approve. Admissibility of Secondary Evidence In terms of s 68(1) secondary evidence of documents may be admissible in the following circumstances: (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; or (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; (b) when the existence, condition or contents of the original are proved to be admitted in writing by the person against whom it is proved, or by his representative in interest; (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in a reasonable time; (d) when the original is of such a nature as not to be easily movable; (e) when the original is a public document within the meaning of section 79; (f) when the original is a document of which a certified copy is permitted by this Act or by any written law to be given in evidence; (g) when the original consists of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection. 34

Section 77 (1) allows a document under the hand of a medical practitioner to be used in evidence so that in terms of subsection (2) the court is allowed to presume that the signature to any such document is genuine and that the person signing it held the office and the qualification which he professes to hold at the time he signed it.60 Section 77(1) as well allows any document purporting to be a report under the hand of a government analyst, medical practitioner or any ballistics expert, document examiner of geologist upon any person, matter or thing submitted to him for examination or analysis to be used in evidence. The same has been held to be capable of production by a police officer. It is however necessary that where the accused person is not represented by counsel, he should be made aware of the consequences of a document for example a P3 Form or such other documents being produced by the police in the absence of the maker of such document. It falls upon the court to explain to an accused his right to insist on seeking to cross examine the maker if he so wishes.61 Public Documents Public documents are documents made by public officers for the purpose of the public making use of it and being able to refer to it.62Because of the public inconvenience that would occasion originals of public documents do not have to be produced in court neither do they require evidence of execution.63 In terms of s. 79 (1) the following are public documents: (a) documents forming the acts or records of the acts (i) of the sovereign authority; or (ii) of official bodies and tribunals; or (iii) of public officers, legislative, judicial or executive, whether of Kenya or of any other country; (b) public records kept in Kenya of private documents. Materials generated by Computers: In terms of s.106 B computer printout or stored matter in the form of optic or electromagnetic media is a document and is admissible in evidence without need for production of the original.

60 61

Ogeto v R [2004] 2 KLR 14 Soki v R [2004] 2KLR 21 62 Sturla v.Freccia [1880] 5 App.Cas. 623, 643, per Lord Blackburn. 63 Mortimer v MCallan [1840] 6 M & W. 58, 63, per Alderson B.

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Where faced with a decision whether or not to admit a computer printout having regard to the rule against hearsay evidence it has to be determined the role the court was performing and the source of the information on which the computer performed function. If the recording and printing was of material keyed in by a human operator, the printout represents information which has passed through a human mind and the printout is hearsay if the intention is to rely on it as a true statement. If on the other hand the computer was operating merely as a mechanical instrument, then the print out it produces has not passed through the human mind and did not therefore depend on any input of information provided by the human mind64 and can be admitted as original evidence. It has therefore been held that a test record print out produced by an automatic breath testing device is not hearsay but is real evidence and therefore admissible.65 Generally the practice as regarding documentary evidence has been that documents must have been in existence and not anticipated the case so that where documentary evidence was adduced to prove parentage of children the court held the same to be of no evidentiary value as the same were obtained during the pendency of the case and for the purpose of the case.66 Documents are not to be admitted as a matter of course but are to be subjected to thorough scrutiny so that where a trial court had accepted a partys accounts and documents on the face value without serious scrutiny was a material failure on the part of the court.67 Once a document is admitted in evidence oral evidence cannot be adduced to contradict the contents of such document. It is a firmly established rule of law that oral evidence should never be admitted to add to, vary or contradict a written instrument constituting a valid and operative contract between parties. On the converse, documents not tendered and admitted in evidence do not form part of the record of the suit and cannot be relied on.68 106B. (1) 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 electromagnetic media produced by a computer (herein referred to as
64 65

The phrase used by Lord Griffiths in Shephard [1993] A.C.380 at 384. Castle v Cross [1985] 1 All E.R.87, DC. 66 Gachigi v Kamau [2003] KLR 169. 67 Five Continents Ltd V Mpata Investments Ltd [2003] KLR 443. 68 Simani v Magotswe [1989] KLR 620.

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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. Mechanical recordings of computers are regarded as documents for the purposes of this section and duly authenticated versions are therefore admissible whether or not the original recording is still available as there is no formal requirement to produce the original. It has been held that where a suitable copy was not available oral evidence of the contents of the recording is admissible. In a case where police officers had watched a video recording of a shoplifting incident and identified the suspects the video recording was erased before the trial and the officers were allowed to give oral evidence of the contents of the video the court holding that their evidence was direct evidence of the crime as if they had directly observed it.69When adducing such evidence questions may arise regarding the quality of the recording or even about the reliability of the officers recollection of the recording, but again such only go to the weight attachable not admissibility of the evidence. The conditions mentioned in subsection (1) regard formal requirements of proof that the computer was functioning properly when it produced the document in question and arises out of concern for reliability of such computer generated evidence. It is presently possible that this provision may have become superfluous due to the widespread use and reliability of computers with the attendant diminishing of the possibility of unreliability. Tape Recordings Where it is desired to rely on tape recordings as evidence the recording cannot stand and be admitted on its own in the absence of the party who made the recording. a It has been held where police recorded a conversation between a complainant and an accused that the tape recording could only be used as an aide memoir to the police officer who had heard the actual conversation between the complainant and the accused. It was necessary to call the police officer to come to court so as to identify the voices in the recording.70

CHAPTER IV: PRODUCTION AND EFFECT OF PROOF: BURDEN AND STANDARD s. 108 1. Burden of Proof The term burden of proof also known as onus of proof, refers to the legal obligation on a party to satisfy the court, to a specified standard of proof, that certain facts in issue
69 70

Taylor v. Chief Constable of Cheshire [1987] 1 ALL E.R 225. Achieng v R [1988] KLR 436

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(the facts on which the legal rights and liabilities of the parties to the case depend) are true. It is the obligation which rests on a party in relation to a particular issue of fact in a civil or criminal case, and which must be discharged, or satisfied, if that that party is to win on the issue in question. There may be several facts in issue in a given case, the burden of proof of different issues may be differently allocated amongst the parties. Significance of Burden of Proof It is important to know which party bears the burden of proof in a given case for the following reason: 1) The party who bears the burden of proof on the first issue will have the right to begin during trial. The crucial question of who has the right to begin is accordingly answered by determining the allocation of the burden of proof of the facts in issue. 2) Where there is a submission of no case to answer, the judge will need to know the allocation of the burden of proof in order to rule on the submission. If the party bearing the burden of proof has not adduced sufficient evidence capable of convincing the court to the requisite degree, the submission will succeed and the case will terminate at that stage. 3) When the court comes to the point of deciding on the issues after all the evidence has been adduced, the burden and standard of proof is crucial in determining by who and how far the court has to be persuaded that the facts are true. The function of the rules on burden and standard of proof at this stage is to provide authoritative guidance for the resolution of uncertainty. 4) A further function of the rules particularly those on standard off proof is to distribute the risk of error in the trial process. Given that truth is a matter of probability, there is a possibility that a particular decision may be mistaken. The question of which party ought to bear the risk of a mistake by the court is vital since they raise the issue of which values are at stake in a particular judicial system. 5) The rules on burden and standard of proof are important on appeal when an appeal court has to decide whether they were correctly applied at the trial. Where the rules are found to have been incorrectly applied, that will provide ground for setting aside the judgment of the trial court. Types of Burden There is more than one type of burden in law. The fundamental distinction however, is between the burden of proof and the burden of adducing evidence.

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The Legal Burden is allocated by rules of law and is fixed at the beginning of the case and does not shift during the trial. There are various synonyms for legal burden such as persuasive burden, probative burden, ultimate burden, and risk of non persuasion. In criminal trials the prosecution bears the persuasive burden. Therefore the rule is that the duty of persuading the court i.e. the burden of proving that the accused is guilty, is upto the prosecution. This is the cardinal principle of all criminal trials. It encapsulates the presumption of law that the accused remains innocent until he is proved guilty. The rule was firmly established by the House of Lords in Woolmington v DPP71.The accused in that vase was charged with murdering his wife. He admitted shooting her. The defence was that he had fired the fatal shot by accident. The trial court directed the jury that once it was established that she died as a result of the accuseds act he had the burden of establishing that it was an accident. The House of Lords Held this to be a misdirection and Viscount Sankey LC stated the law in a celebrated passage in his speech: While the prosecution must prove the guilt of the prisoner, there is no burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt. Throughout the web of English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the guilt of the prisoners guilt subjectto the defence of insanity and subject to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, by the evidence given bi either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or what the trial, the principle that the prosecution must prove the guilt of the prisoner is part mf the common law of England and no attempt to whittle it down cal be entertained.72 Kenyan case law is as well established that in criminal cases, the burden is always on the prosecution to establish the guilt of the accused beyond any reasonable doubt and generally, the accused assumes no legal burden of establishing his innocence.73The burden of proving facts which justify the drawing of this inference of guilt from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused.74 Accordingly the prosecution must prove all the elements in the offence necessary to establish guilt. There is no onus of proof placed on an accused person even where an alibi is pleaded.75 Where in a criminal an accused raised a defence of alibi a court remarked that the accuseds failure to call witnesses meant his defence was not
71 72

[1935] MAC 462 At 481. 73 Mkendeshwo v R [2002] 1KLR 461. 74 Sawe v R [2003] KLR 364. 75 Juma Mzuri Chovu v Republic [2009] eKLR

39

corroborated and proceeded to convict. The accused therefore has to prove nothing unless he raises insanity or certain statutory exceptions apply. Insanity Where an accused person raises the defence of insanity, the burden of proving insanity rests with the accused, because a man is presumed to be sane and accountable for his actions until the contrary is proved. The burden of proving insanity is not as heavy as the one on the prosecution. The burden is discharged on proving on a balance of probabilities that it seemed more likely that due to mental disease, the accused did not know what he was doing at the material time, or that what he was ding was wrong, and so he could not have formed the intent to commit the crime. Whether or not the defence has proved a case of insanity is usually a matter of fact for the court. The burden of proving an averment of insanity once it is raised lies upon the accused person, who has to show on a balance of probabilities that at the time of the alleged crime he was; a) Suffering from a disease affecting his mind; b) That through such disease he was incapable; of understanding what he was doing, or of knowing that he ought not commit the crime alleged. For example an epileptic fit, provided that a suitable evidential foundation for it is laid and is established on a balance of probabilities, may be a disease of the mind within the McNaghten Rules where it has the effect of so impairing the mental faculties of reason, memory and understanding that the sufferor did not know the nature and quality of his act or if he did, he did not know he was doing what was wrong. On this reasoning the courts have acquitted where the preponderance of the evidence in a case showed that an appellant suffered from epilepsy and was prone to fits at frequent intervals and it had been established on the balance of probabilities that the appellant was legally insane when he did the act charged.76 The rule in Wilmington extends throughout the criminal law. It is of the general application in all charges under the criminal law77 and permits of no exceptions save only in the case of insanity which is not strictly a defence,78 The general rule is therefore that if a defense is raised, the onus is on the prosecution to disprove it and not on the defendant to prove it. The Evidential Burden. This is the obligation to adduce sufficient evidence to raise an issue for the court to consider. For example in a criminal case the prosecution have the legal burden of proving the elements of the offence charged but they cannot discharge

76 77

Chemagong v R [1984] KLR 611. Mancini v DPP [1942] AC I, 11 per Lord Simon. 78 Per Lord Tucker in C`an Kau v R [1955] AC 206, 211.

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this burden unless they produce sufficient evidence capable of satisfying the court that the elements of the offence are proved to the required standard. Generally a party who bears the legal burden of proving a particular issue will bear an evidential burden on that issue as well; this means that the party must adduce sufficient evidence on the issue on the issue. The expression evidential burden may also be defined as the burden of adducing sufficient evidence to put a matter to issue. For instance, unless sufficient evidence to put self defence in issue is given the prosecution are under no obligation to negative it. Often the expression prima facie is applied in the circumstances so that unless the prosecution have adduced sufficient evidence to allow the court to convict on that evidence alone, the accused will be acquitted. In an action for negligence, the burden is always on the plaintiff to prove that the accident was caused by the negligence of the defendant. However if in the course of the trial there is proved a set of facts which raises a prima facie inference that the accident was caused by negligence on the part of the defendant, the issue will be decided in the plaintiffs favour unless the defendants evidence provides some answer adequate to displace that inference.79 To the extent that it must adduce sufficient evidence to make a prima facie case, the prosecution may be said to be under an evidential burden. In criminal cases, the burden is always on the prosecution to establish the guilt of the accused beyond any reasonable doubt and generally, the accused assumes no legal burden of establishing his innocence.80 However in certain limited cases the law places a burden on the accused to explain matters which are peculiarly within his own personal knowledge. For example s.111 of the Evidence Act cap 80 provides that in criminal cases, an accused person is legally duty bound to explain, on a balance of probabilities, matters or facts which are peculiarly within his knowledge. The section does not, however diminish the obligation on the prosecution to establish by evidence the commission of the offence charged.81 The section is silent though on what would happen if he fails to do so but s.119 entitles a court to raise a presumption of fact from the circumstances of the case. This has been evident in cases where a party having special knowledge of an issue is placed in a position where he is likely to fail if no evidence of that issue is given. In a case where the issue inheritance it was held that whether the defendant was married to the deceased under customary law was a matter which was specially within the knowledge of the spouses and so the burden of proving upon a balance of probabilities, the facts which qualified their union as such marriage was upon the defendant. In any case, since it was the plaintiffs who would fail in the suit if no evidence was given on either side, the burden lay on them to prove, on a balance of probabilities, that the defendant was not married to the deceased under customary law.82

79 80

Nandwa v Kenya Kazi Ltd [1988] KLR 488. Mkendeshwo v R [2002]!KLR 461 81 Kimeu v R [2002] 1KLR 756. 82 Kituu v Nzambi [1984] KLR 411

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Similarly s.29 of the Weights and Measures Act (No.18 of 1987) places the burden on an accused found in possession to explain that the instrument he is found in possession of is not for trade. In such cases where the law places a burden on an accused to prove, it has never been, unless the law clearly says so, as high as always is on the prosecution to prove a criminal charge beyond any reasonable doubt. To this extent it has been held that a trial court erred in holding that the duty placed on an accused by s.29 above was to explain beyond reasonable doubt that the instrument was not for use in trade.83 The more accurate position was that the possession raised a presumption and the duty of the accused was merely to rebut the presumption by demonstrating on a balance of probabilities that the instrument was not for use for trade purposes. When an accused person puts forth an alibi as his defence it falls upon the prosecution to disprove it since an accused person is under no obligation to prove his own innocence as the burden of proving a case against an accused person person remains on the prosecution throughout the trial.84 Where the trial magistrate by his remarks on an appellants alibi had shifted the burden of proof of the case from the prosecution to the defence it was held to be a serious misdirection which would lead to the quashing of the conviction.85 In an action for damages arising out of an accident and based on negligence, the burden is always on the plaintiff to prove that the accident was caused by the negligence of the defendant. However if in the course of the trial there is proved a set of facts which raises a prima facie inference that the accident was caused by negligence on the part of the defendant, the issue will be decided in the plaintiffs favour unless the defendants evidence provides some answer adequate to displace that inference.86 Where a case is heard ex parte the burden on the plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended. The burden of proof is not lessened merely because the case is heard ex parte by way of formal proof.87 Where Both parties to Blame. It may happen that after trial the court is satisfied that both parties bear responsibility in equal measure yet it is the duty of the court to arrive at a finding on the facts however difficult the circumstances may be. This may arise in an accident case where for example the cause of an accident is speculative that no reasonable or probable inference can be drawn as to which driver was at fault due to lack of evidence that either driver was negligent nor can such negligence be inferred from the circumstances. Under the circumstances a court must apportion blame.88 2. Standard of Proof
83 84

Mwakima & 3 Others v R [1989] KLR 330. Macharia v R [2001] KLR 155 85 Njuguna v R Nrb CR App 131 of 1986 86 Nandwa v Kenya Kazi Ltd [1988]KLR 488 87 Karugi & Another v kabiya & 3 others [1987] KLR 347. 88 Haji v Marair Freight Agencies Ltd [1984] KLR 139.

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The term standard of proof also known as quantum of proof, refers to the degree of probability to which the facts must be proved to be true. In judicial proceedings truth is generally conceived to be a matter of probability since no party is required to prove facts to a standard of absolute certainty. Criminal cases. There are only two standards of proof in criminal cases: the widely established proof beyond reasonable doubt, and the less common proof on the balance of probabilities. Proof beyond reasonable doubt. In a criminal trial the prosecution must establish the accuseds guilt beyond reasonable doubt. If there is a reasonable doubt created by the evidence given by either the prosecution or the defence the prosecution has not made out the case and the accused is entitled to be acquitted.89 Even where the greatest suspicion is cast on the accused that he had stolen, that fact alone is insufficient to establish his guilt beyond reasonable doubt.90 What is reasonable doubt? The standard of proof is a high one but it should never be confused with absolute certainty: nor with scientific proof.91 Thus in Re H (Minors),92Lord Nicholls said: The law looks for probability not certainty. Certainty is seldom attainable. But probability is an unsatisfactorily vague criterion because there are degrees of probability. In establishing the principles regarding the standard of proof, therefore, the law seeks to define the degree of probability appropriate for different types of proceedings. The rationale for this standard is that the accused in a criminal trial generally has more at stake than a defendant in a civil trial, and so the margin of error must be reduced in his favor by placing on the prosecution the burden of proving guilt beyond reasonable doubt.93 Proof on the balance of probabilities. On the rare occasion when the burden of proof on an issue is on the defence, the standard to which the defence have to prove an issue is o the balance of probabilities, the standard applicable in civil cases. This burden was defined most clearly by Denning J in Miller v Minister of Pensions94when he said that it must carry a reasonable degree of probability, but not as high required in a criminal case. This position has been supported by Lord Hailsham LC when he said that the burden of proof resting on the accused to prove insanity was not as heavy as the burden resting on the Crown95 and in Carr- Briant96 in which Humphreys J. concurred.

89 90

Woolmington v DPP [1935] AC 462, 481. Anguko v R [1985] KLR 755 91 Bracewell [1979] 68 Cr App. R. 44, CA. 92 [1996] 2 WLR 8, 24. 93 In Re Samuel Winship 397 US 358 (1970), pp 369-72, opinion of Harlan J. 94 [1947] 2 All ER 372 95 Sodeman v R [1936] WN .190 96 [1943] KB 607, 612.

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Civil cases. The standard of proof in civil cases, and also the standard of proof where the accused bears the burden of proof in criminal cases, is proof on the balance of probabilities or in other words the preponderance of probabilities. It has been said that in a civil case, the evidence 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, but, if the probabilities are equal, it is not.97 Although this is the generally accepted standard of proof in civil cases there are a few examples of civil cases where courts have held that certain matters must be proved to the criminal standard of proof. For example contempt of court in civil matters must be proved beyond reasonable doubt98 because the liberty of the individual was involved.99 The standard of proof in contempt proceedings must be higher than proof on a balance of probabilities, and almost, but no exactly, beyond reasonable doubt as it is not safe to extend the latter standard to an offence which is quasi criminal in nature. The guilt of a contemnor has to be proved with such strictness of proof as is consistent with the gravity of the charge.100 It has been held that where a person who knowing an injunction, or an order of stay, willfully does or causes others to do something, to break the injunction or interfere with the stay, is liable to be committed for contempt as such person has by his conduct obstructed justice. The standard of proof here must be higher than on proof on a balance of probabilities, and almost, but not exactly, beyond reasonable doubt as it is not safe to extend the latter standard to an offence which is quasi criminal in nature. The guilt of a contemnor has to be proved with such strictness of proof as is consistent with the gravity of the charge.101 The principle must be borne in mind that the jurisdiction to commit for contempt should be carefully exercised with the greatest reluctance and anxiety on the part of the court to se whether there is no other mode which can be brought to bear on the contemnor. In another matter it was held in proceedings before a Solicitors Disciplinary tribunal, allegations of professional misconduct had to be proved to the criminal standard where what was alleged was tantamount to a criminal offence.102 The more widely accepted position is that it is relevant for the court to take into account the gravity of the allegation in deciding whether the standard of proof has been reached without necessarily accepting formally the application of the criminal standard.103 The
97 98

Denning J in Miller v Minister of Pensions [1947] 2 All ER 372; Sourcebook, p 65. Re Bramblevale Ltd [1970] Ch 128. see further Wtham v Hlloway [1995] ALIR 847 High Court of Australia; CJ Miller, Proof of Civil Contempt 1121 QR 539. 99 DPP v Havering Magistrates Court [2001] 3 3 ALL ER 997 100 Mututika v Baharini Farm Ltd [1985] KLR 227. 101 Mutitika v Baharini Farm Ltd [1985] KLR 227 102 Re A Solicitor, [1993] QB 69, DC 103 Examples of cases that support this position are Hornal v Neuberger Products Ltd [1957] 1 QB 247 CA (fraudulent misrepresentation amounting to an offence of obtaining money by false pretences); Re Dellows Will Trusts [1964] 1 WLR 451 ( issue in a probate action of whether a wife

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degree of gravity of the allegation should be the one to determine the degree of probability required. This is based o the assumption that there are degrees of probability within the concept of the balance of probabilities, so that the court should require a degree commensurate with the gravity of the allegation. This might at times near the criminal standard where a particularly serious allegation is made.104 According to this reasoning there are more or less infinite degrees of proof between a balance of probabilities and beyond reasonable doubt and the standard is constantly shifting from case to case. It has been held that by virtue of s 47 A of the Evidence Act cap 80, a final judgment of a competent court in any criminal proceedings which declares any person to be guilty of a criminal offence becomes conclusive evidence that the person so convicted was guilty of the offence as charged after the expiry of the time limited for an appeal or after the date of the decision of any appeal. The section applies to both criminal and civil proceedings and where a defendant had in an earlier criminal suit been found guilty of manslaughter, he could not be allowed to go behind the conviction and attempt to show that he was not guilty by explaining what the circumstances of the killing were.105 Part II Estoppel 120. When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. 121. 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 license 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 license was given. 122. No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority to draw such bill or to endorse it:
had killed her husband); Post Office v Estuary Radio Ltd [1967] 1 WLR 1396 (application for an injunction under the Wireless Telegraphy Act 1949 alleging an offence under the Act). 104 As in B v Chief Constable of Avon and Somerset [2001] 1 All ER 562, DC ( proof of the conditions for making a sex offender order under s. 2 of the Crime and Disorder Act 1998 should be to a civil standard of proof which will for all practical purposes be indistinguishable from the criminal standard; per Lord Bingham CJ at p. 573). 105 Wachira v Wanjohi [1988] KLR 654

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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. 123. No bailee, agent or licensee shall be permitted to deny that the bailor, principal or licensor, by whom any goods were entrusted to any of them respectively, was entitled to those goods at the time when they were so entrusted: Provided that any such bailee, agent or licensee may show that he was compelled to deliver up any such goods to some person, who had a right to them as against his bailor, principal or licensor, or that his bailor, principal or licensor, wrongfully, and without notice to the bailee, agent or licensee, obtained the goods from a third person who has claimed them from such bailee, agent or licensee. Estoppel is a rule where by a party is precluded by some previous act to which he was a a party or privy from asserting or denying a fact. It is an absolute exclusionary rule of evidence which renders the proof of some facts unnecessary. The rationale for the rule is grounded on considerations of public policy and justice. It would be unjust to allow someone to do or say something, yet afterwards try to obtain an advantage by denying the validity of what he aid earlier. It would also be contrary to public policy to allow identical claims to be repeatedly litigated. To raise an estoppel Scarman LJ106 posed three questions; 1. were the circumstances such as to raise an equity in favour of the plaintiff? 2. if so, what is the extent of the equity? And 3. in what way should it be satisfied? There are generally four types of estoppel; estoppel by record/previous judicial proceedings, estoppel by deed, equitable estoppel and estoppel by conduct. They share certain peculiar characteristics: a) it can be claimed by a party in whose favour it operates b) it cannot be taken advantage of by strangers c) it cannot form a cause of action but may enable a cause of action which would otherwise fail to succeed. 1. Estoppel by Record/ Previous Judicial Proceedings
106

Crabb v Arun District Council [1975] 3 WLR 847.

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Once judgment is passed by a tribunal, it becomes conclusive against everyone in relation to the issues and state of affairs that it produces. The effect of this is that parties to it and their privies are prevented from denying facts on which it is based. Estoppel by Previous Judicial Proceedings can operate either as a cause of 'action estoppel' or 'issue estoppel'. Cause of action estoppel finds expression in s.7 of the Civil Procedure Act cap 21 (res judicata). It prevents a party to an action from asserting or denying as against the other party, the existence of a particular cause of action, the existence of which has already been determined in a final judgment in a final judgment on the merits in previous litigation between the same parties. Where judgment has been given for the plaintiff in an earlier action, the cause of action expires and the judgment takes its place and no action can be brought against the same party for the same cause of action.107 Cause of action estoppel also applies to 'privies' of the parties to the original action arising out of blood, title or interest.108 Issue estoppel is an extension of cause of action estoppel and provides that once an issue is raised and determined as between parties, thereafter neither party can be allowed to raise it again to be determined. Besides barring a party may not also deny that such issue has bee determined in the manner in which it was.109 The conditions precedent to application of issue estoppel are; a) the same issue must have been decided upon in the earlier case; b) the decision in the earlier case must have been final; and c) the parties to the earlier decision, or their privies, must be the same parties as the parties to the proceedings in which estoppel is raised, or their privies.110 Issue estoppel manifested in a case where there was a collision between a taxi driven by B and a car driven by H. A passenger in H's car sued both for negligence and obtained judgment against each. The court held that B pay 5/6 and H 1/6. B later sued H for damages for personal injury based on negligence arising out of the same crash. The court held that B was estopped from alleging that he was other than 5/6 to blame for the accident.

107 108

Re Fidelitas Shipping Company Ltd [1966] 1 1QB 630 at 640 C (A Minor) v Hackney London Borough Council [1996] 1 WLR 789, p 792, per Simon Brown LJ. 109 Thoday v Thoday [1963] P 181, p 198, per Diplock LJ. 110 Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] AC 853, p 935, per Lord Guest.

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In criminal cases the equivalent to cause of action estoppel is a plea of autrefois acquit or autrefois convict so that in terms of s. 47A, previous convictions and acquittals can lead to estoppel in subsequent criminal proceedings. 2. Estoppel by Deed There is no express provision for this head of estoppel in our Evidence Act Cap 80, but since it is a recognised head of evidence that existed well before the Act- the legislature could not have intended that it be excluded. This head of estoppel mandates that where an action is brought on the strength of a deed, parties to the deed and those claiming through them are estopped from denying the contents of the deed. It is a preclusion against the competent parties to a valid contract and their privies from denying its force and effect by any evidence of inferior solemnity. The House of Lords has had occasion to observe that estoppel by deed is a rule of evidence founded on the principle that a solemn and unambiguous statement in a deed be taken as binding on the parties and their privies and therefore as not admitting any contrary proof.111 This was established as early as 1834 where a plaintiff claimed to be entitled as patentee the rent under a licence to use 'power looms' for weaving which had been granted to the defendants. The licence had been granted by a deed which had stated that the plaintiff had invented the 'power looms' for which he obtained a patent. The defendants later denied inter alia, that the plaintiff was the inventor, or even that the 'power loom' was a new invention. The plaintiff countered that that those pleas were bad, because the defendants were estopped by the recitals in the deed to which they were parties. The court agreed holding that the defendants were estopped from denying either that the power loom was a new invention, or that the plaintiff was its inventor.112 In Kenya, it has been held that a person should always stand by his word or deed given to another who believes and acts on that word or deed as the truth of the matter. And the person who gave that word or deed to be acted upon cannot be seen to deny the truth of it, as given to the other in any suit or proceeding involving the one to whom the representation was made and the one who represented it or his agent.113

111 112

Greer v Kettle [1938] AC 156. Bowman v Taylor [1834]4LJKB 58 113 Esther Akinyi Odidi & 2 Others v Sagar Hardware Stores Ltd & Another [2006] eKLR.

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S.120 binds people to their words or deeds said or done, believed as truth by whom the words or deeds are said or done and who act on the same thereby changing their circumstances. If the truth of the word or deed is changed, those who believed and acted on it stand prejudiced incase a suit ensues. If the deed is intended to be a statement which all the parties to the deed have mutually agreed to admit as true, it will act as an estoppel upon all. If it is, however, intended for only one party, then that partys intention is to be gathered from the construction of the instrument so that recitals in a deed will not always bind both parties.114 3. Equitable Estoppel The underlying rationale for this head of estoppel can find expression in the maxim my word is my bond. In its application it is expected that a person intends the consequences of his word whether there is consideration to support it or not. Once a man gives a promise or assurance to his neighbour on which the neighbour relies, he will not be allowed to go back on it. The basic underlying principle in this doctrine estopps a person a person acting inconsistently with a representation which he has made to the other party in reliance of which the other party acts. The representor will not be allowed to go back on what he represented by words or conduct when it would be detrimental to the other persons interests. Although not expressly provided for, equitable doctrines apply in all cases of estoppel unless excluded by statute.115This position has been buttressed in East Africa by Newbold J stating that as the Privy Council held that s.115 enacted in terms of the English law of estoppel, and as both the Common law and equitable estoppel formed a part of the law of England at the time of the enactment of the Evidence Act and as the fact that the representation of a legal relationship could ground an equitable estoppel had been clearly stated before the Evidence Act was applied to Tanganyika, I am satisfied that there is no reason to restrict the meaning of the word thing in s.115 to an existing fact, and that an equitable estoppel falls within the section. Subsequently, it has also been held in Kenya that despite the disappearance of the Crown from the domestic law of Kenya, the
114 115

Stroughill v Buck [1850] 14 QB 781 at 787. Doge v Kenya Canners Ltd NRB HCCC 1832 of 1980

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defence of estoppel was still available to a defendant a court could properly find that a plaintiff was estopped by acquiescence from claiming possession of premises.116 Where a person acquiesced in and allowed the other to spend moneys to improve property, equity will not allow such person to chase away the other. 4. Estoppel by Conduct This category of estoppel finds expression in s 120 and arises where it would be unconscionable for a person to deny a representation of fact that is implicit in his conduct. Such an estoppel may arise from agreement or from an express or implied representation, promise or from negligence. In principle, if two parties agree expressly or impliedly that their legal relations shall be based on the assumption that a certain state of affairs exists, and when this has been done, the original parties to the agreement as well as those claiming through them are estopped from denying the existence of the assumed state of affairs. Agreement. An example of estoppel by conduct arising out of agreement finds expression in s. 121 where no tenant of immovable property or persons claiming through such tenant shall during the continuance of such tenancy be permitted to deny that the landlord of such tenant had during the beginning of such tenancy a title to such immovable property and no person who came upon any immovable property by the licence of the person in possession in possession thereof shall be permitted to deny the fact that such person had the right to such possession at the time when the licence was given. Where the plaintiff as landlord of a furnished dwelling house claimed vacant possession of the premises occupied by the defendant, the defendant claimed, inter alia, that the plaintiff had no title to the property due to a circumstance which arose two years prior to the tenancy. The court held that the defendant was estopped from impugning the plaintiffs title by virtue of s.121.117 In an action for use and occupation of land let to the defendant by the plaintiffs predecessor in title, the defendant had paid rent, not only to the plaintiffs predecessor in title, but also to the plaintiff. At trial the defendant sought to call evidence to prove that the plaintiff had no title to the land. The court rejected the defendants intention to call such evidence holding that in an action for use and occupation, a tenant who occupies land by agreement with another ought not, as a matter of convenience and public policy, be allowed to call upon the other person to show the title under which he let the land.118
116 117

Commissioner of Income Tax v Hussein [1968] EA 585. Rodseth v Shaw [1967] EA 833 (K) 118 Cooke v Loxley [1792] 5 TR 4

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Representation. This rule prescribes that where a person by words or conduct willfully causes another to believe a certain state of affairs, and thereby induces him to act, or to alter his own previous position, the representor will be estopped from alleging that a different state of affairs existed at the time when the representation was made.119 The expression wilfully here means that the representor alleged something to be true that he knew to be false, or that he meant his representation to be acted upon, and it was accordingly acted upon. Where a wife had forged her husbands signature on cheques drawn on the defendant bank, the husband got to know of it but failed to report to the bank. Later he threatened to report her and she committed suicide. The husband then sued the bank for the sums it had paid out of his account to the wife on the authority of the forged cheques. The House of Lords held that he was estopped from relying on the fact of forgery while acknowledging that mere silence could not amount to representation. When, however there was a duty of disclosure, deliberate silence might become significant and might amount to a representation. It observed that a bank customer had the duty to disclose the fact of forgery to his bank, if he discovered it and the plaintiffs silence in this case amounted to a representation that the forged cheques were in order.120 For a representation to generate an estoppel, it must clearly be one of fact and not law since an admission on a point of law cannot create an estoppel. No representation can operate as an estoppel if the result would be something that is prohibited by law. Negligence. To establish estoppel by negligence , it must be proved that a duty of care was owed to the person who has suffered loss, and that there has been a breach of that duty. Both conditions aforesaid were satisfied where a railway company had negligently issued two delivery orders in respect of one consignment of wheat. This had enabled a swindler to obtain two advances of money, as if there had been two separate consignments. The court held that the railway companys negligence estopped it from denying that there had been two consignments.121 Promise The principle of promissory estoppel first came to prominence with the celebrated judgment of Denning J in the High

119 120

Pickard v Sears [1837] 6 A&E 469. Greenwood v Martins Bank Ltd [1933] AC 51 121 Coventry, Sheppard and Co v Great Eastern Railway [1883] 11 QBD 776

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Trees Case122.The principle has been accepted to apply in Kenya123, with the court observing that before it can arise, one party must have made to the other a clear and unequivocal representation, which may relate to the enforcement of legal rights, with the intention that it should be acted upon, and the other party, in the belief of the truth of the representation, acted upon it.124 Three elements must be present for promissory estoppel to avail are first, a clear and unequivocal representation, second, an intention that it should be acted upon and third, action upon it in the belief of its truth. In the High Trees Case the landlords had let to the tenants the ground lease of a block of flats at 2500 Pounds per annum. As a result of WW II most of the inhabitants moved out of London with the result that it was difficult to fill the flats with tenants. After discussions, the landlords agreed to accept 1250 Pounds per annum as ground rent which the tenants paid until 1945. in 1945, due to the ending of the war, conditions had changed and the landlords then sued for the original rent for the quarter ending in September and December, 1945. Lord Denning held that the landlords should not be allowed to go back on their promise to reduce the rent. He also held that the conditions could only be binding so long as the conditions prevailing when it was made properly applied. Once the war was over and the tenants had returned, it would have been unreasonable to hold the landlords to their promise for the entire 99 year lease as the tenants had contended. Promissory estoppel cannot, however, be used as the ground for an action because it is defensive rather than offensive.125 Proprietory Estoppel. This estoppel arises when a person incurs expenditure (for example by building on land) or otherwise prejudices himself, in the belief, actively or passively encouraged, that he had or would have a sufficient proprietory interest in the property to justify such expenditure. The classic exposition which has been cited in Kenyan judgments is that of Lord Kingsdown in a dissenting speech as follows; if a man under a verbal agreement with a landlord for a certain interest in land, or what amounts to the same thing, under an expectation created or encouraged by the landlord, that he shall have a certain interest takes possession of such land , with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the land lord and without any objection by him, lays
122 123

Central London Property Trust Ltd v High Trees House Ltd [1947] 1KB 130. Century Automobiles Ltd v Hutchings Biemer Ltd [1965] EA 304 124 Nurdin Bandali v Lombank Tanganyika Ltd [1963] EA 304. (CA) 125 Mulji Jetha v Commissioner of Income Tax [1967] EA 50

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out money upon the land, a court of equity will compel the landlord to give effect to such promise or expectation.126 If the owner of the property asserts his rights to the property, but in spite of this, the other party continues to build or otherwise expend money on the land, no estoppel can be raised, for the equitable rule as to the effect of persons lying by and allowing another to expend money on his property does not apply when money is expended with knowledge of the knowledge of the real state of the title. Besides, no estoppel can be raised against the true owner if he did not realize that he was entitled to interfere as where he does not realize that the property is his. Fray LJ laid down the test to establish a proprietary estoppel requiring answers to questions as follows;127 1. has the plaintiff made a mistake as to his legal rights? 2. did he expend some money or do some act on the faith of his mistaken belief? 3. did the defendant who possessed the legal right know of its existence which is inconsistent with the right claimed by the plaintiff? 4. did the defendant know of the plaintiffs mistaken belief? 5. did the defendant encourage the plaintiff in his expenditure of money or in the other acts which he has done either directly or by abstaining from asserting his legal right? Proprietary estoppel as stated above, differs from promissory estoppel and estoppel at common law in that its effect is to confer substantive rights on the person in whose favour the equity is raised. The consequence is that where the true owner of goods or land has led another to believe that he is not the owner, or at any rate, is not claiming an interest therein, or that there is no objection to what the other is doing, the owner is not allowed to go back on what he led the other to believe. So much so that his own title to the property be it land or goods, has been held to be extinguished or limited, and new rights and interests have been created therein. One of the first East African authorities on proprietary estoppel concerned the hire purchase agreement of a motor vehicle which was later repossessed by the seller. The hirer sued alleging (inter alia) fraud, waiver, and estoppel. The suit was dismissed and on appeal, it was held (inter alia) dismissing the appeal, that the respondent had

126 127

Ramsden v Dyson [1866] LR IHL 129-170. Willmort v Barber [1880] 15 Ch D 96.

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not by its cause of action estopped itself from asserting its right to repossess.128 Lord Denning said the effect of estoppel on the true owner may be thathis own title to the property, be it land or goods, has been held to be limited or extinguished, and new rights and interests have been created therein. And this operates by reason of his conductthat he has lead the other to believe-even though he never intended it. The new rights and interests so created by estoppel, in or over land, will be protected by courts and in this way give rise to a cause of action.129 A dispute arose where a deceased and his son built two cottages on the deceaseds land on the understanding that one of the cottages would be a gift to the son. Both helped in the construction of the cottages and the son expended money on purchase of materials with the deceaseds knowledge. There was no understanding to subdivide or transfer to the son the land on which the designated cottage was built. The Court held that the son had acquired an equitable charge or lien to be reimbursed. The value of labour and materials had been expended by him on the building and property as the deceased owner of the land, with full knowledge, had not only stood by, but also encouraged him to incur expenditure in the expectation that the cottage would be his.130

Part III - Evidence of Children 124. Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act, where the evidence of alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him. Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged
128 129

Nurdin Bandali v Lombank Tanganyika Ltd [1963] EA 304. Moorgate Mercantile Co Ltd v Twitchings [1975] 3WLR 286 130 Whitehead v Whitehead & Others [1984] NZLR at 1066.

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victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth. CHAPTER V: COMPETENCE AND COMPELLABILITY OF WITNESSES. Part I: Competence of Witnesses When a person is permitted by law to give evidence he is said to be competent. When a person nay be compelled by law to give evidence, or risk punishment for contempt of court if they refuse they are said to be compellable. The general rule therefore is that a witness is competent if he may lawfully give evidence but he is competent if he may lawfully be required to do so. s. 125 (1) All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease (whether of body or mind) or any similar cause. Everybody is recognized by law as competent to adduce evidence. A court retains the power to declare a person incompetent as a witness where they cannot understand the questions asked of them or are unable to answer questions in a rational manner. Such inability is limited to those that are as a consequence of tender years, senility, disease or similar cause. This is the statutory basis of the rule that any person is competent and compellable as a witness provided that he or she is capable of coherent communication.131 Inability to testify has always been regarded as the exception rather than the rule and subject to some exceptions, a witness who was competent was also compellable. The primary rule of universal competence and compellability was stated by Willes J as follows: Every person in the kingdom except the sovereign may be called upon and and is bound to give evidence to the best of his knowledge upon any question of fact material and relevant to an issue tried in any of the Queens courts, unless he can shew some exception in his favour132
131

See Ex p. Fernandez [1861] 10 CB (NS) 3, 39, per Wiles J. The sovereign and foreign ambassadors and their suites are exceptions to the rule. They are not compellable. Bankers ad officers of banks are not compellable to produce any bankers book or to appear as witnesses to prove matter recorded therein unless by order of a judge for special cause: Evidence Act s. 140 (1) (2) on restriction on compelling production of bankers book. Expert witnesses are in the same position as witnesses of fact. They are compellable: Evidence Act s.48 (1). Harmony Shipping Company v Davis [1979] 3 All ER 177,181, per Lord Denning MR. Judges are competent but not compellable in relation to their judicial functions; however it appears that a judge would be compellable to give evidence of a collateral matter occurring in his presence, e.g, a murder in court: Warren v warren [1996] 3 WLR 1129. see s 129. 132 Ex p Fernandez [1861] 10 CBNS 3, p 39. See also Hoskyn v Commissioner of Police for the Metropolis [1979] AC 474, pp 484, 500-01.

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Once the question of a witnesss competence is raised in court, it is for the party calling the witness to satisfy the court that, on a balance of probabilities, the witness is competent to give evidence. As the law of evidence has developed the tendency has been to increase the scope of competence while maintaining a few cases where a competent witness is not compellable. We will consider some classes of witnesses: Children There is no statutory or judicial definition in Kenya of the phrase a child of tender years for the purposes of the law of evidence. It is left to the discretion of the judge to assess whether a young witness is a child of tender years or otherwise. In the Oaths and Statutory declarations Act (Cap 15) does not have a definition of child of tender years either but the practice in the absence of special circumstances is that the court takes it to mean any child of an age or apparent age of under fourteen years. Within the meaning of s. 124 of cap 80 a child of tender years seems to be a child who is legally immature and incapable of being responsible for his own actions and they include children under the age of 8 years who under s. 14(1) of the Penal Code cap 63 are not criminally responsible for any acts or omissions. S.124 only applies to children under the age of 8 years upon whose uncorroborated evidence no conviction can be based so that if a witness is aged 12 years he is not a child of tender years whose evidence requires corroboration as a matter of law. If however the witness is is not over the age of 14 yrs his evidence would still need corroboration as a matter of practice and a trial court has to caution itself of the danger of convicting on uncorroborated evidence of such a child be fore acting on it.133 Still whether a child is one of tender years is a matter for the good sense of the court where there is no statutory definition. A courts investigation of a child for the purposes of the Oaths and statutory declarations Act cap 15 should precede the swearing and the evidence and the investigation should be directed to the particular questions whether the child understands the nature of an oath rather than to the question of the childs general intelligence. To this extent it has been held that the statement of a child that she went to church to pray to God did not in any way inform the trial magistrate that the witness understood the nature of the oath as stipulated in the Oaths and Statutory Declarations Act cap 15. Where there is doubt regarding the age of a child it is desirable to seek better medical evidence as to the age such as a medical assessment of her age or birth certificates before making a finding as to age on the mere say of the childs mother. If the child is of the age of 12 years then the court before taking her evidence should have complied s.19 (1) of cap 15 in that if the court was of the opinion that the child did not
133

Njoki v R [1988] KLR 342.

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understand the nature of the oath it could receive her evidence even if not on oath, if it was of the opinion that she was possessed of sufficient intelligence to justify the reception of her evidence and that she understood the duty of telling the truth. 134 There are two procedure that the trial courts should follow when receiving the evidence of a child of tender years. a) The court should first ascertain whether the child understands the nature of an oath. An investigation to this effect must be done by the court immediately the child witness appears in court. The investigation need not be a long one but it has to be done and it has to be directed to the particular question whether the child understands the nature of an oath. If upon investigation it appears that the child understands the nature of an oath, then the court proceeds to swear of affirm the child and to take his or her evidence. This can be done by way of a voir dire. b) If the child does not understand the nature of the oath, he or she is not necessarily disqualified from giving evidence. The court may still receive the evidence if it is satisfied, upon investigation, that the young person is possessed of sufficient intelligence and understands the duty of speaking the truth. This investigation must be done, and when done it must appear on the record. Where the court is so satisfied then the court will proceed to record unsworn evidence from the child witness. The decision of whether or not to conduct a voir dire examination of a child witness rests with the trial court. If when from a general examination of the child the court thinks a witness is not a child of tender years an appellate court which not have the same advantage as the trial court to see the witness will be in no firm position to find that the trial judges exercise of discretion in accepting the witness testimony without a voir dire examination was wrong.135 This procedure of receiving the evidence of a child of tender years is required by statute and needs no strict compliance.136 The testimony of children is governed by c.19 of the Oaths and Statutory Declarations Act Cap 15. Children whatever their age, are competent to give evidence if they can understand the questions put to them as a witness and give answers which can be understood. It is for the party calling the child to satisfy the court on a balance of probabilities of the childs competence. The extreme youth of a witness does not in itself demonstrate that a child is incompetent.137 In Nyasani S/o Gichana, it was stated that it was clearly the duty of the court to ascertain, first whether a child tendered as a witness understood the nature of an oath, and if the finding of this question was in the negative, to satisfy itself that the child was possessed of sufficient intelligence to justify the reception of the evidence and that the child understood the duty of speaking the truth. Such an investigation need not be a lengthy one, but it must be made and, when made, the trial judge ought to record it. The
134 135

Musikiri v R [1987] KLR 69. Nywela v R [1989] KLR 452. 136 Kinyua v R [2002] 1KLR 256 137 DPP v M [1997] 2 Cr. App. R 70

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investigation should precede the swearing and the evidence and should be directed to the particular question whether the child understands the nature of an oath rather than to the question of his general intelligence. Kinyua v. Republic [2002] 1 KLR 256 summarized the procedure of preliminary examination of a witness in two steps. First, the court must ascertain whether the child understands the nature of an oath. An investigation to this effect must be done by the court immediately the child witness appears in court. The investigation need not be a long one but it has to be done and it has to be directed to the particular question whether the child understands the nature of an oath. If upon investigation it appears that the child understands the nature of the oath, then the court proceeds to swear or affirm the child and to take his or her evidence. Second, if the child does not understand the nature of the oath, he or she is not necessarily disqualified from giving evidence . The court may still receive the evidence if it is satisfied, upon investigation, that the young person is possessed of sufficient intelligence and understands the duty of speaking the truth. This investigation must be done and when done, it must appear on record. Where the court is so satisfied then the court will proceed to record unsworn evidence from the child witness. An accused can only be convicted on the evidence of a child of tender years if such evidence is corroborated by other material evidence in support thereof implicating him as set out in s. 124.138 Civil cases: The test of whether the child is competent to give sworn evidence was laid down in R v Hayes as:139 does the child understand the solemnity of the occasion and the special duty to tell the truth, over and above the ordinary social duty to do so? If the child does not satisfy these conditions the court must then rely on the Childrens Act ( s?) on how to treat a child, who is called as a witness in any civil proceedings and who does not, in the courts opinion, understand the nature of an oath. Such a childs evidence may be heard, if in the courts opinion, the child understands that it is his duty to speak the truth and he has sufficient understanding to justify his evidence being heard. Criminal cases: In criminal cases all persons are, whatever their age, competent to give evidence. The position at Common law is that a child of tender years could be sworn in any proceedings provided that he does understand the nature of an oath and the obligation to tell the truth.140 Under s.124 there is a caveat that a person cannot be convicted on the evidence of a child unless it is corroborated by other material evidence. Where a child of tender years is allowed by the court, upon proper investigations under s. 19(1) of the Oaths and Statutory Declarations Act to give sworn evidence, it is requirement as a rule of practice that such evidence should be corroborated. It is a sound rule of practice which has stood the test of time and it ought not to be disregarded for the sake of fair trial and justice and justice to
138 139

Onserio v R [1985] KLR 618. [1977] 1 WLR 234. 140 Brasier [1779] 1 Leach 199

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the offender. Corroboration should be in material evidence implicating the accused and the court ought to properly direct itself. It however remains a rule of practice and subject to the proper warning being administered, the court may convict upon such evidence without corroboration. Corroboration is however not necessary where the child is a victim of a sexual offence and the court is convinced that it is telling the truth. The question whether a witness in criminal proceedings is competent may be raised by either party or by the court suo moto and it is for the party calling the witness to satisfy the court that, on a balance of probabilities, the witness is competent. If after a child is confirmed to be competent to give evidence, should his evidence be sworn or unsworn? The answer again is in the Hayes test i.e. that he has sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath. In practice witnesses aged 14 and over are likely to take the oath without further question if they are able to give intelligible testimony. The consequence of this is that children aged 14 and over will be treated as adults and no evidence will be made into their capacity to take the oaths unless an objection supported by evidence, is made. Ultimately, the decision whether a child should give evidence or not is a matter for the courts discretion depending upon the circumstances and type of case and the circumstances of the particular child. It has been held by Kenyan courts that a courts investigation of a child for the purposes of the Oaths and Statutory Declarations Act cap 15 should precede the swearing and the evidence and the investigation should be directed to the particular questions whether the child understands the nature of an oath rather than to the question of the childs general intelligence. The statement of a child that she went to church to pray God has been held not to in any way inform the trial magistrate that the witness understood the nature of the oath before accepting her evidence on oath.141 The rules with regard to the evidence of children were set out in a case where an accused was charged with committing an unnatural offence contrary to s. 162 of the Penal Code on a boy aged 12 and the issue was whether the complainant was a child of tender years whose evidence needed corroboration. It was held that within the meaning of s. 124 of the Evidence Act cap 80, a child of tender years seemed to be a child who is legally immature and incapable of being responsible for his own actions and they include children under the age of eight years under s. 14 (1) of the Penal Code cap 63 who are not criminally responsible for any acts or omissions. Section 124 of the Evidence Act cap 80 only applies to children under the age of eight years upon whose uncorroborated evidence no conviction can be based. Where a complainant was aged 12 years he was held to be a child of tender years whose evidence required corroboration as a matter of law. But again since he was not over 14 years, his evidence still needed corroboration as a matter of practice and the court had to caution
141

Njuguna v R Nrb Cr App 131 of 1986

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itself of the dangers of convicting on the uncorroborated evidence of such a child before acting on such evidence. In this case the trial court had found the complainant to be an intelligent child who knew why he should speak the truth and allowed him to take an oath. He was a truthful witness and his evidence was safe for basing a conviction even though it was uncorroborated in a material particular.142 s. 125 (2) Persons of Defective Intellect Where an accused person raises the defence of insanity, the burden of proving insanity rests with the accused, because a man is presumed to be sane and accountable for his actions until the contrary is shown. The burden on the accused to prove insanity is not as heavy as the one on the prosecution. The burden is discharged by proving on a balance of probabilities that it seemed more likely that due to mental disease, the accused did not know what he was doing at the material time, or that what he was doing was wrong, and so he could not have formed the intent to commit the crime. Civil cases. A person who is mentally disordered or defective will not as a matter of fact be incompetent to testify. His competence will depend on the nature and severity the disability. The position at common law is that persons of unsound mind who are not capable of understanding the nature of the oath and giving rational evidence are not competent witnesses. The test is whether the witness understands the nature and sanction of the oath. It is for the court to decide whether such a person is competent or not by calling evidence in the voir dire on his mental condition. In a case where the prosecution wished to call the inmate of a lunatic asylum, one of the attendants was called first and gave evidence that the man in question had the delusion that spirits continually conversed with him. He, however added that the inmate was capable of giving an account of anything that happened before his eyes. The court held that the an should be allowed to testify because it found that he had a clear understanding of the obligation of an oath and was rational on all subjects except his reticular delusion.143 In another case144 a victim in a rape case had a mental age of 10. the Court of Appeal held that she should have been allowed to give sworn evidence because it had been clear from her answers to questions from the judges that she had satisfied the Hayes test. The court of Appeal was particularly impressed with her realization that if she told a lie in evidence she could, as she had said, be put away. Criminal cases. Where a potential witness has a defective witness, the test to be applied and the procedure for determining them are the same in relation to children. It follows
142 143

Njoki v R [1988] KLR 342 R v Hill [1851] 2 Den 254. 144 R v Bellamy [1985] 82 Cr App R 222.

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therefore that a person with defective intellect may be able to give evidence in criminal , but not in civil proceedings. In criminal proceedings, provided he satisfies the basic test for competence, he will be able to give evidence-if not sworn, then unsworn. In civil proceedings, an adult witness with defective intellect must be able to satisfy the Hayes test and be sworn; if he cannot do so there is no provision enabling him to give unsworn evidence. In criminal cases therefore, an adult witness under disability, who is currently unable to testify if he lacks sufficient understanding to take the oath, will be able to give unsworn evidence provided he passes the basic test of competence. In this way vulnerable adults who have been the victims of physical or sexual abuse may be able to help bring their abusers to justice. Whether the defence ultimately has proved the case of insanity is a matter of fact for the judge. Where it is found that the accused was insane, a special finding may be entered; if he is found to have been sane, the finding maybe murder or manslaughter; and in the case of manslaughter, that would be due to the fact that although sane by reason of illness, the accused did not appreciate the full consequences of his act.
145

s. 126 Incapacitated witnesses/ Deaf and Dumb The competence of incapacitated witnesses is, like all witnesses, governed by s.125 (1). Thus provided that the witness (i) can understand the questions put to him as a witness and give answers to them which can be understood, and (ii) has sufficient apprehension of the solemnity of the occasion and of the particular responsibility to tell the truth, he is competent. Under s 126 (i) a deaf and dumb witness is competent provided that (a) he can be made to understand the nature of the oath; and (b) through signs understand questions and give answers.146 This may be achieved thorough an interpreter, the use of an intermediary, or an aid to communication. Where for example a witness is drunk that he cannot give coherent evidence, it falls upon the judge to make a ruling on whether he is competent or his evidence should be adjourned until such time as he is sober. It has been held that a judge had rightly exercised his discretion in adjourning a case over the weekend because a witness was too affected by drugs to comprehend the proceedings. It has also been held that a judge has discretion to allow a trial to continue where a witness who was epileptic and mentally handicapped, having been cross examined for sometime, became ill and could not give evidence further.147 In practice if the incapacity is temporary, the court may adjourn the evidence until the incapacity is over. If there is no improvement after the adjournment the court may allow the trial to continue. In a case where the witness became too distressed during cross examination, the court allowed an adjournment for her to compose herself. After the adjournment the witness was still distressed and the judge terminated the cross
145 146

Marii v R [1985] KLR 710 Ruston [1786] 1 Leach 408. 147 Stretton [1986] 86 Cr App. R. 7

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examination. It was held on appeal that the judge had a discretion to adjourn the matter for the length of time he did and rejected an argument that he had not allowed the witness enough time to compose herself.148 s. 127 Spouse of the Accused 127. (1) In civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. (2) In criminal proceedings every person charged with an offence, and the wife or husband of the person charged, shall be a competent witness for the defence at every stage of the proceedings, whether such person is charged alone or jointly with any other person: Provided that (i) the person charged shall not be called as a witness except upon his own application; (ii) save as provided in subsection (3), the wife or husband of the person charged shall not be called as a witness except upon the application of the person charged; (iii) the failure of the person charged (or of the wife or husband of that person) to give evidence shall not be made the subject of any comment by the prosecution. Civil Cases The law relating to the competence and compellability of a spouse in civil cases is to be found in section 125. The relevant part is subsection (1) and provides: 125. (1) All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease (whether of body or mind) or any similar cause. In civil cases the plaintiffs and defendants as well as their spouses are competent to adduce evidence as witnesses. The spouses are able to give evidence against or for any of the parties without restraint only subject to rules of evidence. A spouse is competent to testify unless in the opinion of the court such spouse is prevented from testifying by tender years, extreme old age, disease or any similar cause. The section is silent on compellability and it is reasonable to conclude that they are competent but not compellable.

148

Wyatt [1990] Crim LR 343.

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In terms of section 127 (1) it is restated that like any other witness in civil cases the spouses are competent witnesses. The section as well is silent on compellability of a spouse in civil cases. Criminal Cases In criminal cases an accused person and his or her spouse is competent as a witness for such accused whether such accused is charged alone or jointly with somebody else as a co accused. Where, however, the accused opts to be a witness for himself or herself it is a matter of choice and cannot be compelled to adduce evidence as such. An accused cannot be compelled to give evidence for himself and may after prosecution case opt to close his case without calling any evidence or witness. A spouse of an accused person cannot be called to come and give evidence as witness for the accused or the prosecution except on the request of the accused himself. The only circumstances when a spouse may be called as witness without reference to an accused spouse is the exceptional case where the charge facing the accused is one of either bigamy, an offence under the Sexual Offences Act and an offence affecting the spouse or their children. Where normal circumstances would dictate that the spouse of an accused gives evidence for or against the accused but such a spouse fails to do so, such failure cannot, unlike in cases where the witness is not a spouse, be made a subject of comment by the prosecution with a view to imputing on such possible implications of such failure. Reference to husband or wife under this section is taken to mean a binding marriage contracted under statute or custom but excludes the duration when such marriage stands dissolved. The law as to the capacity of a spouse as a witness in criminal proceedings in s 127(2) (ii) is that the spouse is competent for the defence save that the spouse shall not be called as a witness except upon the application of the person charged. The word husband and wife under subsection (4) and s 127 mean the husband and wife of a marriage which is by law binding during the lifetime of both parties unless dissolved according to law, and includes a marriage under native or tribal custom. This then covers cohabiting coupes who under Kenya law can in certain cases be presumed married. It has also been held that where the spouses were staying apart the wife although competent could only be called as a witness upon the application of the accused and it was therefore improper for her to be called by the prosecution as that was to make her a compellable witness.149 A Spouse a witness for the defence.
149

Range v R [2003] KLR 692

63

A spouse is a competent witness for an accused whether the accused is a person charged alone or jointly with another person. This competence is however, subject to certain restrictions so that before a spouse can act as witness for the defence the accused must be the one to apply for the spouse to be called as a defence witness. Under this section the husband or wife of the accused is compellable on behalf of the accused in all cases. This rule is so because a husband might feel a great inconvenience if he could not compel his possibly estranged wife to give evidence for him. The only exception is when both the husband and wife are charged in the same proceedings. In this case one accused will not be able to compel a spouse to give evidence unless one of them is no longer a person charged and therefore liable to be convicted of any offence in the proceedings. Reference here to a person charged do not not include a person who is not, or is no longer liable to be convicted of any offence in the proceedings (whether as a result of pleading guilty or a nolle prosequi) Where the accused spouse is charged with a certain category of offences under section 127 (3) the witness spouse becomes both competent and compellable. A spouse as a witness for the prosecution. A spouse is generally competent but not compellable to give evidence for the prosecution against the other spouse unless jointly charged with them. The rationale for this is the repugnance that would arise at forcing a spouse to give evidence against another and the probable consequences for the institution of marriage. Thus, except in the exceptions that follow a spouse has a right to refuse to give evidence against another until it is waived by going to the witness box and taking an oath hen such spouse then becomes an ordinary witness. The exception to this rule is where the accused spouse is charged with the crimes of bigamy, certain offences under the Sexual Offences Act and, and in respect of an act affecting the person or property of the spouse or children. The law here weighs the interests of the family against those of the community at large by attempting to balance two interests: (i) the preservation of the marriage institution which may be jeopardised when spouses give evidence against one another; and (ii) the investigation of crime which can only take place when a spouse gives evidence where a crime is committed in the home. Ex Spouses Where spouses are divorced or their marriage annulled, the ex spouse is both competent and compellable as if the parties had never been married. In the past the rule used to be that a spouse was incompetent to give evidence for the prosecution in a case where the specific matters in issue arose during the marriage.150It would follow that this provision applies even where a presumption of marriage arises out of cohabitation and repute. Polygamous marriages It has been held that a woman who underwent a polygamous marriage was a competent witness for the prosecution against an accused spouse and his co accused and that the same principle applies in the case of a spouse of a polygamous marriage as applies to a woman who has not undergone a ceremony of marriage or as applies to the spouse of a

150

Algar [1954] 1 Q.B. 279; 37 Cr. App. R. 200

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bigamous marriage.151 There appears no indication that the same principle does not apply when questions of compellability arise. In terms of s 127 (2) (iii) the prosecution is forbidden to comment on the failure by an accused to call a spouse. This is a mandatory provision and its breach is a material irregularity.152A conviction was quashed in a shoplifting case because the prosecution told the jury that they had been deliberately deprived of material evidence as the accused had not called his wife (who had been in the shop at the material time).153Such damage done by a comment need not be fatal and may be remedied where the court on noticing a clear breach of the section ought to stop the prosecutor after his comment and point out the error.154 A judge in the same position may, where appropriate, comment upon the failure of an accused to call a spouse155 or any witness who might have been called so that an appellate court has deprecated a judge' s comments on an accused's failure to call her boyfriend as a witness dangerous because they detracted from the burden of proof.156 If the judge must make such comment in very exceptional circumstances then it must be done with a great deal of circumspection.157 Part II: Compellability and Privileges of Witnesses Privilege in the law of evidence is the right of a witness to withhold from the court information relevant to an issue in the proceedings before the court.158 Where a privilege avails a person may refuse to answer a question and cannot be compelled to do so. Privilege is distinguishable from the law relating to compellability which only deals with occasions when a person may be compelled to adduce evidence. It is also a personal right in the sense that: a) it may only be exercised by the person entitled to claim it; and b) it may be waived only by that person. The rationale for privilege arises out of the realisation that the public interest is best served by recognising certain privileges, despite the obvious disadvantages which may arise in terms of ascertainment of the truth.159 There are under Kenya law two significant privileges: a) The privilege against self incrimination, and b) Legal professional privilege
151 152

[1989] 84 Cr . App. R 44 Brown and Routh [1983] crim. L.R.38 153 Naudeer [1984] 80 Cr. App. R. 9 154 Whitton [1998] Crim L.R 492. 155 Gallagher [1974] 1 W.L.R. 1204 156 Wright [2000] Crim L.R. 510 157 Naudeer at 39 above. 158 This definiton is based on that in para. 1 of the Sixteenth Report of the Law Reform Committee, Privilege in Civil Proceedings, Cmnd.3472 (1967). 159 See Att-Gen v Clough [1963] 1 Q.B. 773, 787, per Lord Parker C.J.

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Privilege against Self Incrimination 128. A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will incriminate, or may tend directly or indirectly to incriminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind, but no such answer which a witness is compelled to give shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer. The general unadulterated privilege against self incrimination entitles a person in legal proceedings to refuse to answer questions or produce documents which may incriminate him so that a witness (not defendant) is not bound to answer a question if there is, in the opinion of the court, a risk that the answer will expose him to proceedings for a criminal offence, forfeiture or recovery of a penallty. The rationale for this rule could be explained by the maxim nemo tenebatur prodere seipsum: a man should not be his own accuser so that the coercive power of the state should not be used to compel a person to disclose information which would render him liable to punishment.160 The result is that it inhibits abusive power by investigatory authorities and prevents the eliciting of confessions which might have doubtful probative value.161 In Civil Proceedings In civil proceedings the privilege against self incrimination has been refered to as the right of a person in any legal proceedings other than criminal proceedings to refuse to answer any question or produce any document or thing or thing which would tend to expose that person to proceedings for an offence or for the recovery of a penalty.162 This provision restates the Common law position163 where the privilege has a general application to everybody in civil proceedings where it avails equally to witnesses and parties164 In the absence of the privilege a person so called upon would have a legal duty placed upon him to
160 161

Law Reform Committee, Sixteenth Report, above, at para. 8. Regina v Hertfordshire County Council Ex. P Green environmental Industries Ltd. The Times, february 22, 2000, per Lord Hoffmann. 162 The Civil Evidence Act 1968 s. 14 163 See lord Diplock in Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] A.C. 547 at 636, HL. See also Phipson, paras 21-18 to 21-28. 164 Blunt v Park Lane Hotel Ltd [1942] @ KB 253 where the question arising was whether the plaintiff in a slander action could rey on the privilege to refuse to answer interrogatories about whether she had committed adultery.The Court of Appeal held that since the jurisdiction of the old ecclesiastical courts over adultery was obsolete, the privilege no longer had this extension.

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answer questions or produce documents or face contempt in default. The privilege extends to both answers that would incriminate a person directly as well as indirectly such as those which comprise a line of inquiry leading to the obtaining of evidence against the person objecting.165 In terms of s.128 a witness must adduce evidence when called upon even when such evidence may have the effect of incriminating him save that such evidence cannot be relied on subsequently to prosecute him on the basis of such incrimination. Where a witness is not compelled but voluntarily elects to adduce self incriminating evidence such evidence may nevertheless be relied upon to prosecute him subsequently. A witness may also be prosecuted subsequently on the basis of self incriminating evidence he has been compelled to adduce where he commits perjury while adducing such evidence. In Criminal Proceedings. The common law privilege applies in criminal proceedings as well so that witnesses may not rely on it for refusing to answer questions tending to incriminate them and this includes accused's testifying in their own defence. This applies only in so far as the crime charged is concerned but it cannot incriminate him for offences other than those currently charged that may emerge as a consequence of his present evidence. Section 128 has cut down this privilege by allowing that a witness may be questioned, but that only limited use may be made of his answers so that no statement or admission made by any witness questions in such proceedings shall be admissible in evidence against that person in proceedings for an offence arising out of such evidence. The Right to Silence The right to remain silent is a derivative of the right against self incrimination. It means that a suspect is not obliged to answer questions when interrogated by the police. The effect in law is that the court may not draw adverse inference from a suspects' failure to answer questions. Generally, the fact that a suspect fails to reply to questions when interviewed by the police is not evidence and should never be held against him.166 A court is, however allowed to draw such inferences as appear proper from evidence that a suspect fails to mention any fact relied on in his defence, which in the circumstances existing at the time, he could reasonably have been expected to mention. A proper inference is one that is relevant to determining whether the accused is guilty, but may also be one which is simply adverse to the defence. In Taylor 167 it was held to be proper to draw an adverse inference from the accused's
165 166

Slaney (1832) 5 C & P. 213. see also Lamb v Munster (1882) 10 QBD 110. Gilbert (1978) 66 Cr. App.R. 237, 244.

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failure to mention a possible alibi defence when interviewed despite the fact that his answering questions would have amounted to admission of other criminal offences and the fact that the accused had mentioned his alibi to his lawyer prior to to the interview by the police. Judicial authorities have tended to suggest that before an adverse inference can be drawn a court must be satisfied that: a) on being questioned under caution the defendant failed to mention the fact; b) the fact is relied on in is defence c) in the circumstances existing at the time, he could reasonably have been expected to mention the fact; d) that the only sensible explanation for his failure to mention the fact is that he had no answer at the time that would stand up to scrutiny; and e) that apart from the failure to mention the fact, the prosecution's case against him was so strong that that it called for an answer.168 Judicial Privilege 129. No judge or magistrate shall, except upon the special order of some court to which he is subordinate, be compelled to answer any questions as to his own conduct in court as such judge or magistrate, or as to anything which came to his knowledge in court as such judge or magistrate, but he may be examined as to other matters which occurred in his presence whilst he was so acting. A judicial officer cannot be compelled to answer questions regarding his conduct of judicial proceedings or information that may have come into his possession during such judicial proceedings. This may however be overridden where a higher court issues an order compelling him to answer such question. This privilege does not avail where the judicial officer is to be examined on a matters that arise in his presence as a judicial officer. A judicial officer is accordingly immune from having to account for acts performed in his official capacity save where he is a witness to matters coming to his attention while performing his functions. The rationale for this provision is that judicial officers when performing their functions need not do so with the constant worry that they will be called upon to account for every single deed when an appeal would suffice, Spousal Privilege 130. (1) No person shall be compelled to disclose any communication made to him or her during marriage, by the other spouse; nor shall a person be permitted to disclose such
167

[1999] Crim. L.R. 828 see aso Pointer [1977] Crim. L.R. 676; Gayle [1999] Crim L.R. 502; McGuinness[1999] Crim L.R. 318; and Ioanmou [1999] Crim L.R. 586. 168 May, Martin and Steven Powles; Criminal Evidence 5th edn Londond, Sweet and Maxwell, 2004

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communication without the consent of the person who made it, or of his or her representative in interest, except in suits between the parties to the marriage or in any of the cases referred to in paragraphs (a), (b) and (c) of section 127 (3). (2) In this section marriage means a marriage, whether or not monogamous, which is by law binding during the lifetime of the parties thereto unless dissolved according to law and includes a marriage under native or tribal custom. A spouse cannot be compelled to disclose communication with the other during the marriage. Even where a spouse is wiling to disclose without compulsion the consent of the spouse who made the communication is mandatory save where the suit is between the spouses or is with respect to any of the cases under s.127(3) (a) (b) and (c). in terms of subsection (2) such marriage includes a marriage arising out of cohabitation and repute. This is in contrast to the position in England where that the terms wife and husband did not include the co-habitee of an accused even though they lived together for 19 years and had three children together.169 Public Privilege (Public Interest Immunity) 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. 132. No public officer shall be compelled to disclose communications made by any person to him in the course of his duty, when he considers that the public interest would suffer by the disclosure. 133. (1) No judge, magistrate or police officer shall be compelled to say whence he got any information as to the commission of any offence, and no revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the law relating to the public revenue or to income tax, customs or excise. (2) For the purposes of this section, revenue officer means any officer employed in or about the business of any branch of the public revenue, including any branch of the income tax, customs or excise departments.

169

Pearce [2002]1Cr.App.R.39

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Under this section relevant evidence may be excluded or withheld on the ground that it would be prejudicial to the public service. A minister only needs to state on oath that he has examined the contents of an unpublished document forming part of official records and has formed the opinion that its production would be prejudicial to the public service either on account of its contents or merely because it belongs to a class of documents which that should be withheld on grounds of public policy. Talking of public service, it can be said that there is an interest in: a) The maintenance of national security or diplomatic relations; or b) The effective functioning of the public service; or c) The detection of crime which may in certain circumstances require that evidence be excluded or that information be withheld. Section 132 prescribes that information that has come to the knowledge of a public officer in the course of his duty may not be disclosed if such disclosure would in his opinion be harmful to the public interest. This provision was for long referred to as Crown privilege which has been pointed out to be wrong and misleading because the Crown did not have a privilege to withhold information but merely that there was immunity from disclosure when the public interest in withholding information in a particular case outweighs the regular rules of disclosure.170 Similarly reference to privilege is also inaccurate because it is the duty of a party when holding potentially immune material to assert such immunity and it cannot be said that a party can waive immunity because the government when it pleads public interest is not claiming privilege but is discharging a duty.171Public interest immunity is not a preserve of certain privileged players to play as and when they wish. It cannot be waived in the manner of rights because it is a duty.172 This anomaly has now been corrected by acceptance and widespread use of the expression public interest immunity173 A convenient starting point to trace the history of this rule would be the decision of the House of Lords in Duncan v Cammell Laird174 In this matter an action was instituted by the dependants of of men who lost their lives when a submarine in which they were sank during trials. It was their case that the defendants who had constructed the submarine were negligent. Among the documents the plaintiffs wanted to obtain on discovery were contracts between the defendants and the Admiralty, and salvage reports. The Admiralty
170 171

Rogers v Home Secretary [1973] A.c. 388,400 per Lord Reid. Air Canada v Secretary of State for Trade [1983] A.C. 394, 436, per Lord Fraser. However, in Horseferry Road Magistrates Court Ex p. Bennet (No.2) (1994) 99 Cr. App. R. 123 the court held that it is not necessary in every case for the Crown prosecution Service to apply to the court for a ruling before disclosing such information; they make voluntary disclosure provided that they have the express approval of the Treasury Solicitor for doing so. 172 Makanjuola v Commissioner of Metropolitan Police [1992] 3 All ER 617. 173 Ward [1993] 1W.L.R. 619, 647, per Glidewell L.J. 174 [1942]AC 264.

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resisted to disclose on grounds of national security. The House of Lords agreed with the Admiralty that it was bound to accept the Ministers certificate that disclosure of these documents would be harmful to the public interest. This essentially meant that the court was helpless when faced with a claim of Crown privilege and could never question such claim if made in the proper form, regardless of the nature of documents which the government wished to keep secret. Section 131 in consonance with Duncan places such privilege on two grounds: a) Disclosure of the contents of the particular documents would harm the public interest or b) The documents belonged to a class of documents that had to be withheld in the public interest. The origins of the modern approach to Public Interest Immunity was the decision of the House of Lords in Conway v Rimmer.175In Conway, the Plaintiff, a former policeman claimed against his former Superintendent for malicious prosecution (he had been prosecuted for theft and acquitted). He wanted to obtain on discovery a number of confidential reports which had been made on him during his probation. These reports were likely to be relevant to the issue of malice and both sides of the case wanted them produced. The Home Secretary objected. The court took the opportunity to reverse its earlier ruling in Duncan, holding this time round that it was for the court to decide where the balance of public interest lay: in protecting a government claim for secrecy, or in upholding a litigants right to have all relevant materials available for the proper adjudication of his case. In this case, the second limb prescribing that public interest immunity might be based on a class rather than a contents claim was still accepted, the court observing that the reason for supporting a class claim was that disclosure would create or fan ill-informed or captious public or political criticism, or would be inimical to the proper functioning of the public service.176In the United Kingdom, this approach led to undesirably wide public interest immunity claims being made by ministers. The practice was widely criticized in the Scott report,177and the government has now effectively abandoned class claims.178 Section 131 specifically mentions minister. Does this mean there for that only in cases involving government does public interest immunity can operate? The correct position is that while a minister is always the most appropriate person to assert the public interest, it is open to any person to raise the question. In fact there may be cases where even the judge may do so if no one else does so in cases requiring protection of the anonymity of an informer who reports suspicion of child cruelty.179
175 176

[1968] AC 910. [1968]AC 388, P 400. 177 Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq and Related Prosecutions, 15 February 1996 (HC 115) 178 Attorney Generals statement to the House of Commons, HC Deb, Vol 287, cols 949-57, and Lord Chancellors statement to the House of Lords, HL Deb, Vol 576, cols 1507-17, 18 December 1996. 179 D v NSPCC [1978] AC 171.

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After Rimmer the position now is for the court to decide whether material should be withheld on the grounds of public interest immunity so that in Ward180 the court held that where the prosecution in criminal proceedings makes a claim of public interest immunity in order to withhold material from disclosure, it is for the court to decide whether the material should be disclosed. The effect of this was to give the courts the role of monitoring the views of the prosecution as to what material should be disclosed with the prosecution no longer being a judge in its own case. Class and Contents Claims Section 131 refers to these two as categories under which public interest immunity may be claimed i.e. Class based (belonging to a class which in the public interest ought not to be disclosed, for example government documents relating to high policy, such as Cabinet papers and Foreign Office dispatches) or Contents based (i.e. documents, the contents of which it would not be in the public interest to disclose).181 As regards criminal cases consensus seems settled that this approach is inappropriate where more weight ought to be attached to the need to do justice to the accused. It hass been recommended that contents claims should not be made in relation to documents which might be of assistance to the defence and should not be made unless (in the opinion of the person putting forward the claim) disclosure will cause substantial harm; and that if the judge is asked to rule on the immunity claim he should be asked to decide whether the documents might be of assistance to the defence and that if a document satisfied that test it ought not to be withheld on public interest immunity grounds.182 It is safe to conclude that in criminal matters witnesses may not be asked, and will not be allowed to disclose, the names of informers or the nature of the information given. This position is supported by Marks v Beyfuss,183 where in an action for malicious prosecution, the Director of Public prosecutions was called as a witness by the Plaintiff but declined on grounds of public policy to give the names of his informers or to produce the statement on which he acted in directing the earlier unsuccessful prosecution of the plaintiff. The trial and appellate judges upheld his objection on grounds that informers need to be protected, both for their own safety and to ensure constant supply of information on criminals. This rule can be departed from if the disclosure of the name of the informant is necessary to show the innocence of the accused.184 This position raises an obvious conflict between one public policy and another but the one that prevails is that an innocent person should not be condemned when it is possible that he could be innocent were such evidence to allowed. The task is upon the accused person to show that there is a good reason to disclose.185

180 181

[1993] 1 W.L.R. 619, 647. Duncan v Cammell Laird [1942] A.C 624; Conway v Rimmer [1968] A.C. 910 182 Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq and Related Prosecutions, (1996) HMSO 115, paras G10,18-94, K6.6 (the Scott Report) 183 Ibid, Scott , pp 432-35. 184 Marks v Beyfus [1890] 25 QBD 494. 185 R v Hennessey (1978) 68 Cr App R 419.See also R v Keane [1994] ! WLR 746; R v Menga and Marshalleck[1998] Crim LR 58.

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Disclosure was considered necessary in R v Agar186 where the accused was charged with being in possession of drugs. His defence was that he had been framed by the informer and the police acting in concert and that the name of the informer should be disclosed because his identity might give weight to the accuseds testimony. The Court of Appeal ruled that the trial judge should have ordered the informers name to be disclosed. Legal Professional Privilege 134. (1) No advocate shall at any time be permitted, unless with his clients express consent, to disclose any communication made to him in the course and for the purpose of his employment as such advocate, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment: Provided that nothing in this section shall protect from disclosure(a) any communication made in furtherance of any illegal purpose; (b) any fact observed by any advocate in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment, whether the attention of such advocate was or was not directed to the fact by or on behalf of his client. (2) The protection given by subsection (1) shall continue after the employment of the advocate has ceased. 135. The provisions of section 134 shall apply to interpreters, and the clerks or servants of advocates. 136. (1) If any party to a suit or proceeding gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in section 134 (1). (2) If any party to a suit or proceeding calls any advocate, interpreter, clerk or servant as a witness, he shall be deemed to have consented to such disclosure as is mentioned in section 134 (1) only if he questions such witness on matters which, but for such question, the witness would not be at liberty to disclose. 137. No one shall be compelled to disclose to the court any confidential communication which has taken place between him and his advocate unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the court necessary to be
186

[1990] 2 All ER 442

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known in order to explain any evidence which he has given, but no others. Communications passing between a client and his legal advisor or advocate are privileged from being disclosed by the client in evidence and (unless the client consents) by the legal advisor. The rationale for this rule is to allow a client to recieve legal advise with safety which is a fundamental condition in the administration of justice187 and cannot be ousted by general statutory provisions.188 The privilege belongs to the client and not the legal advisor,189 and extends only to confidential communications.190 The privilege extends only to communications between: a) the client (and his agents) and the client's legal advisors; b) the client's legal advisors and third parties if made for the purpose of pending or contemplated litigation; c) the client (or his agent) and third parties, if made for the purpose of obtaining information to be submitted to the client's legal advisors for the purpose of obtaining advise upon pending and contemplated litigation. This section gives effect to two forms of privilege at common law. One form, normally referred to as lawyer-client privilege, protects communications between client and advocate made with the purpose of the client receiving or obtaining legal advice from the advocate. This privilege is identifiable as belonging to the client rather than the lawyer and secondly that it attaches to confidential communication in connection with the purpose of legal advice irrespective of whether litigation is in existence or contemplated. The other form, known as litigation privilege, protects communication between a client or a clients lawyer, and a third party made for the purpose of the client obtaining or receiving advice in connection with litigation which is in existence or is contemplated. This privilege protects material coming into existence for the purpose of litigation to which the client is a party. This may include materials such as a clients correspondence with his advocate such as legal research, advocates notes, draft opinions etc. This privilege is, however wider than legal advice privilege in one fundamental respect in the sense that it extends privilege to confidential communications by the client or lawyer with third parties for the dominant purpose of acquiring advice or information in connection with the litigation. At the very least an accused or defendant is prevented from being asked questions about any discussions which he may have had with his lawyer191 so that a mere letter written by a lawyer on behalf of a client
187 188

B v Auckland District Law Society, The Times, May 21, 2003. R.(Morgan Grenfell & Co. Ltd) v Special Commissioner of Income Tax [2003] 1 A.C. 563. 189 Wilson v Rastall (1972) 4 T.R. 753. 190 Bursill v Tanner (1885) 16 Q.B.D 1. 191 Downer (1880) 14 Cox 486.

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is not normally protected by privilege as not amounting to communication between advocate and client. It has also been held that the record of a time on a lawyer's attendance note, time sheet or fee note is not subject to legal professional privilege because it does not amount to communication for the purpose of seeking legal advise.192.A duty of confidence attaches to an interpreter who is present at an interview between an advocate and a client not to disclose communication interpreted by him.193 A defendant does not waive privilege merely by giving evidence or calling his advocate to rebut a suggestion of fabrication. If however, he goes further than declining to answer questions but he or his lawyer takes it upon himself to explain the basis of the legal advise the he waives the privilege and can be cross examined about the nature of the advise and the facts upon which it was based. Exceptions to the rule. Communications which are part of a criminal or unlawful proceeding are not covered by privilege.194 The test applicable is to ask yourself whether the professional advice was in furtherance of a crime or fraud or in preparation of it and if your answer is yes then the communication has failed the test for privilege.195 in a case where two suspects conspired to defraud a creditor they sought legal advice to facilitate the fraud. The lawyer gave advice not knowing the purpose for which it was intended. It was held that communication between advocate and client for the purpose of facilitating a fraud was not privileged because a it did not come within the scope of ordinary professional employment.196 When such a question comes into issue the court must decide on the particular facts of the case whether it seems probable that the accused person may have consulted his legal adviser, not after the commission of the crime for the legitimate purpose of being defended, but before the commission of the crime for the purpose of being guided or helping in committing it.197 For this purpose a court may look at the communication without it being proved that it was produced for this purpose.198 In a case where a letter was written by a lawyer to a client warning the client that he would be liable to prosecution if he proceeded with a certain course of conduct it was held that the letter was not written in furtherance of crime or fraud and was accordingly privileged.199
192 193

Manchester Crown court ex parte R [1999] 2 Cr. App.R. 267. Regina (Bozkurt) v Thames Magistrate's Court, the Times, June 26, 2001 194 Bullivant v Att-Gen for Victoria [1901]A.C. 196 195 See Butler v Board of Trade [1971] Ch. 680, per Goff J. 196 Cox and Railton [1884] 14 Q.B.D. 153. 197 See Cox and Railton above. 198 Governor of Pentonville ex Parte Osman[1989] 3 ALL E.R.701 199 Butler v Board of Trade [1971] Ch.680, per Goff J.

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This must be distinguished from advice that seeks to know whether a certain end can be achieved lawfully or whether particular conduct is lawful or unlawful. In such a case privilege should only be lost if the suspect has made up his mind in advance to act unlawfully either way. The scenario is the same if the purpose of obtaining the advice is unlawful so that in a case where a client sought to enter a transaction at an undervalue with the intention of causing prejudice to persons making claims against him it was held that the purpose was sufficiently iniquitous for public policy to require that the communications between him and his lawyer in relation to the setting up of these transactions be discoverable.200 Under section 137 a client can also waive privilege by deliberate disclosure, by giving evidence about it or by authorizing the lawyer to do so. Waiver is also implied by law so that an advocate representing a client has ostensible authority to conduct the case as he thinks is in the best interest of the client in which case should he produce a document in trial without the clients agreement he effectively waives any privilege in that document.201Once a client has waived privilege in certain communication he cannot claim it subsequently in the same proceedings. A third exception arises where a third party gets hold of a privileged document or overhears a privileged conversation. Can he give evidence of the privileged conversation or document? The answer was laid in a case where during the course of a trial the accused wrote an incriminating note to his advocate which was found on the floor and given to the prosecutor. When the trial resumed the following day the prosecutor wanted to cross examine the accused on the contents of the document but he objected on grounds that it amounted to breach of natural justice. The judge rejected production of the document itself while observing that Privilege in this context, relates only to production of document; it does not determine its admissibility in evidence. Put another way is that the note although obviously privileged from production was admissible in evidence once it was in the possession of the prosecution.202 138. No witness who is not a party to the suit shall be compelled to produce his title deeds to any property, or any document in virtue of which he holds any property as pledgee or mortgagee, or any document the production of which might tend to incriminate him, unless he has agreed in writing with
200 201

`Barclays Bank v Eustice [1995] ALL E.R. 511. Great Atlantic Insurance Company v Home Insurance Company [1981] 2 All E.R. 485, CA. 202 Butler v Board of Trade [1971] Ch. 680

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the person seeking the production of such deeds or document, or with some person through whom he claims, to produce them. A witness in proceedings cannot be compelled to produce in evidence documents of title or proof of his title to property, or in the case of a person to whom property has been mortgaged or pledged, such document as the mortgage or pledge is based or any any document which might incriminate him. To compel such witness to produce such document he has to be joined as a party to the suit or the party requiring production must agree with him in writing that he shall produce such document at trial. The rationale is to prevent a party from having to incriminate himself especially having regard to the fact that he is not even a party to the suit. S. 139. No one shall be compelled to produce documents in his possession, which any other person would be entitled to refuse to produce if they were in his possession, unless such other person consents to their production. Where a person has in his possession documents and which he is required to produce in evidence, he cannot be compelled to produce them if them if such documents belonged to another person and the other person could not be compelled to produce them. Such person as in possession has extended to him the privilege of the original owner and a party may not take advantage of change in possession to enforce a right which they otherwise would not be able to enforce. 140. (1) A bank, or officer of a bank, shall not, in any legal proceedings to which the bank is not a party, be compelled to produce any bankers book the contents of which can be proved under the provisions of Chapter VII. (2) No bank or officer of a bank shall be summoned or called as a witness to prove any matters, transactions or accounts recorded in a bankers book except by order of a judge or magistrate made for special cause. A bank cannot be compelled to produce evidence contained in its books where such bank has not been joined as a party to those proceedings unless the procedure prescribed in Chapter VII is complied with. For a bank or its agents to be called as witnesses to prove any matters recorded in its books an order to that effect must issue from court. 141. An accomplice shall be a competent witness against an accused person; and a conviction shall not be illegal merely because it proceeds upon the uncorroborated evidence of an accomplice. Where two people are charged they will be competent witnesses against one another as a accomplice would against a co accused. 77

Where an accomplice gives evidence against an accused, the mere fact that such accomplice evidence is not corroborated does not make the subsequent conviction illegal. 142. No person who is entitled to refuse to produce a document shall be compelled to give oral evidence of its contents. Where a person is under some law entitled to decline to produce a document he cannot be compelled to give oral evidence of the contents of such document. 143. No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact. Unless the law makes specific provision there is no specific number of witnesses that must adduce evidence for any fact to be taken as proved. Part III: Examination of Witnesses There are several stages in examination of witnesses. In the first stage the witness is examined by the party calling him and is known as examination-in-chief. In the second stage the witness is cross examined by the opposing party and is known as cross-examination. In the third stage the witness is examined again by the party calling him as to matters arising from cross-examination and is known as reexamination. Witnesses normally begin their evidence by giving their names and occupation followed by their residence. It is, however not allowed to call evidence to bolster the witnesss credibility. 144. (1) When either party proposes to give evidence of any fact, the court may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be admissible. (2) The court shall admit the evidence of any fact if it thinks that the fact, if proved, would be admissible and not otherwise. (3) If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact and the court is satisfied with such undertaking. 78

(4) If the admissibility of one alleged fact depends upon another alleged fact being first proved, the court may, in its discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact. Section 144 enables the court to retain control and manage the nature of evidence adduced by ensuring that irrelevant matter is left out. The court may therefore require of a witness to address it on the admissibility of a fact to be proved before such fact is proved. The court will admit evidence of a fact unproven if it thinks that the fact when ultimately proved would be admissible. It may not, however, admit a fact and thereafter proceed to admit evidence in proof. Where a party proposes to prove a fact but evidence in proof of such fact is not admissible until a second fact is proved then the second fact must first be proved before evidence to prove the second is admitted. The court retains discretion to admit such evidence upon a satisfactory undertaking by the witness that he will prove such fact. Finally, where admissibility a fact depends on proof of a second fact, the court may nevertheless invert and admit evidence to prove the first before the second is proved.

145. (1) The examination of a witness by the party who calls him shall be called his examination-in-chief. (2) The examination of a witness by the adverse party shall be called his cross-examination. (3) Where a witness has been cross-examined and is then examined by the party who called him, such examination shall be called his re-examination. 146. (1) Witnesses shall first be examined-in-chief, then, if the adverse party so desires, cross-examined, then, if the party calling them so desires, re-examined. (2) Subject to the following provisions of this Act, the examination-in-chief and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified in his examinationin-chief. (3) The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter. (4) The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further crossexamination, and if it does so, the parties have the right of further cross-examination and re-examination respectively. 79

Part IV - Questioning of Witnesses 147. A person called to produce a document does not become a witness by the mere fact that he produces it, and cannot be cross-examined unless and until he is called as a witness. Where a document is to be produced and a person is called to produce it the availability of such a person in court for that purpose does not make him a witness in the proceedings it being that his intention is merely to produce the document. As a consequence such person is not susceptible to cross-examination on the document. If he has to be cross examined then he has to be called as a witness in the proceedings which is distinguishable from a mere requirement that he produces a document. 148. A witness to character may be cross-examined and reexamined. 149. Any question suggesting the answer which the person putting it wishes or expects to receive, or suggesting a disputed fact as to which the witness is to testify, is a leading question. 150. (1) Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief or in a reexamination, except with the permission of the court. (2) The court shall permit leading questions as to matters which are introductory or undisputed, or which have in its opinion been already sufficiently proved. 151. Leading questions may be asked in cross-examination. 152. Any witness may be asked, whilst under examination, whether any contract or grant or other disposition of property as to which he is giving evidence was not contained in a document, but if he says that it was, or if he is about to make any statement as to the contents of any document which in the opinion of the court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it. 153. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him or being proved, but if it is intended to contradict a witness by a previous written statement, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. 80

154. When a witness is cross-examined he may, in addition to the questions hereinbefore referred to, be asked any questions which tend (a) to test his accuracy, veracity or credibility; (b) to discover who he is and what is his position in life; (c) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture. 155. If any question asked under section 154 (c) for the purpose of affecting the credit of the witness relates to a matter relevant to the suit or proceeding, the provisions of section 128 shall apply thereto. 156. A person charged with an offence and called as a witness for the defence may be asked any question in crossexamination notwithstanding that the answer may tend to incriminate him as to the offence charged. 157. (1) If any question asked relates to a matter not relevant to the suit or proceeding except in so far as it affects the credit of the witness by injuring his character, the court shall decide whether or not the witness shall be compelled to answer it, and may, if it does not so compel him, warn the witness that he is not obliged to answer. (2) In exercising its discretion under this section, the court shall have regard to the following considerations (a) such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court as to the credibility of the witness on the matter to which he testifies; (b) such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect in a slight degree, the opinion of the court as to the credibility of the witness on the matter to which he testifies; (c) such questions are improper if there is a great disproportion between the importance of the imputation made against the witnesss character and the importance of his evidence. (3) The court may, if it sees fit, draw from the witnesss refusal to answer, the inference that the answer, if given, would be unfavourable to the witness. 158. No such question as is referred to in section 157 ought to be asked unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well founded. 81

159. The court may forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the court, unless they relate to facts in issue or to matters necessary to be known in order to determine whether or not the facts in issue existed. Examination-in Chief This is the examination of a witness by the party who calls him to elicit from him all the relevant facts which he can prove in support of the partys case. The witness must give evidence from his personal knowledge by telling the court what he saw, heard or did. It is not expected that any rehearsal should take place before examination in chief but witnesses may be trained as opposed to coached before testifying at trial. Training should be limited to preparing a witness for the courtroom experience and should not cover the specific facts of the witnesss testimony.203 In conducting an examination-in-chief the following rules apply: Leading Questions. The rule as regards leading questions is that a party should never seek to elicit evidence from a witness during examination-in-chief by using leading questions. A leading question is one which either suggests the desired answer; or assumes the existence of a disputed fact. The rationale for this is twofold: The first is to avoid prompting the witness to give particular answers and encourage him to give his evidence unaided and second because it is unacceptable to misrepresent evidence by assuming its existence before the witness evidence. The opposing party is expected to object to leading questions during examination-in-chief. It he fails to object and the witness proceeds to answer, such answer is not per se inadmissible but the weight attached to it is substantially diminished.204 Exceptions: Leading questions may be allowed in certain circumstances in the interest of justice.205 The first are questions those that elicit answers to issues that are not in question or introductory questions that bring the witness to matters in question or specific topic quickly. Such may be seeking to know the witnesss name and residence, age and even employer etc. Such are regular introductory procedures should normally lead to any objections unless specifically objected to. The second exception is when a witness is called specifically to contradict evidence about a conversation given by a previous witness. The second witness may in the circumstances be asked if a particular expression was used by quoting the expression in
203 204

Time to Give Witnesses the Right to a Fair Trial, The Times Law Section, October 7, 2003 Moor v Moor [1954] 1 W.L.R. 927; Wilson (1913) 9 Cr. App. R. 124 205 Ex p. Bottomley [1909] 2 K.B. 14, 21.

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the expectation that the witness should acknowledge the expression.206 For example if a witness A says I told B to read, the B may be asked Did A tell you to read?. The third exception relates to hostile witnesses. A Hostile witness is one who shows himself to be giving evidence against the interest of the party calling him. A judge may on application by the calling party allow him to be treated as hostile and open him to examination to repair the damage done. This is done through examination when leading questions may be asked of him. Discrediting Your own Witness Under normal circumstances it is expected that your witness will give evidence to support your case. In the rare case where your witness gives evidence that goes against your case or simply fails to prove a fact he is called to prove you may call other evidence to contradict him but not cross examine him as in the case of hostile witnesses.207 Cross-Examination After examination-in-chief a witness who has been sworn becomes open to crossexamination by all other parties who may have a legitimate interest in their evidence. The rationale of cross-examination is to shake or weaken the evidence given by the witness in chief; and to extract from the witness-in-chief information favourable to the party cross examining him. In conducting cross-examination the following rules apply: First, questions in cross examination are not confined to issues or facts raised in evidence-in-chief but must relate to the issues arising in the case or to the creditworthiness of the witness.208 Second, leading questions may be asked cross-examination.209Such leading questions should never be a mere comment or an invitation to argument which does not elicit facts which is the purpose of cross-examination.210 Third, a witness must not in cross-examination be asked about inadmissible evidence whose answer does not add value the evidence adduced for example hearsay211 or an involuntary confession.212 Fourth, the party cross-examining should as much as possible take advantage of cross examination to advance as much of his case as concerns the witness to him by for example putting to the witness his version of the evidence which contradicts what the witness has said. This is an opportunity for the witness to explain any contradiction as
206 207

Courteen v Touse [1807] 1 Camp. 43. Ewer v Ambrose [1825] 3 B&C. 746; Greenough v Eccles [1859] 5 C.B. 9(N.S) 786. 208 Treacey [1944] 2 All E.R. 229 209 Parkin v Moon [1836] 7 C.& P. 409. 210 Baldwin [1925] 18 Cr.App.R. 173, 178-179, per Lord Hewart C.J. and Randall [2002]2 Cr. App.R. 17. 211 Thompson [1912] 3 K.B.19 212 Treacey, above at 114; Rice [1963] 1 Q.B. 857.

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may arise213 and where such cross examining party fails to put his version to the witness he is taken to accept the witnesss evidence and cannot therefore in his closing statement attack that part of the witnesss evidence which he failed to challenge in crossexamination.214 Five, cross-examination should be conducted with restraint and with the courtesy and consideration which a witness is entitled to expect in a court of law.215It is the duty of an advocate against being made the channel for questions intended to insult or annoy the witness or some other person; that he may only suggest that a witness is guilty of fraud, misconduct or crime if such allegations go to a matter in issue which is material to his clients case; where the only such mater is the credibility of the witness the advocate must be satisfied as to the reasons of such allegations being made and that they are supported by reasonable grounds.216 Where an accused in a criminal case is unrepresented by advocate and elects to cross examine witnesses including the complainant in person it falls upon the court to protect both the prosecution witnesses and the accused from intimidation or abuse by the manner of the accuseds cross examination by irrelevant and repetitious questioning.217 In a case where a document made by another person is the subject of cross examination of a witness who admits its contents, such contents become admissible as evidence but where the witness denies such content they are inadmissible being hearsay.218The outgrowth of this is that if a document amounts to hearsay, it cannot be admitted by simply putting it to a witness in cross examination219 or by requiring him to read it aloud.220 As regards proof of previous inconsistent statements which a witness denies during his cross examination and therefor inconsistent with his present testimony, but which is relevant to the subject matter of the trial, proof may be adduced that he indeed made the statement but before that is done circumstances of the original statement sufficient to remind him of the particular occasion must be brought to his attention and he asked whether or not he now recalls making the original statement. As regards cross-examination as to credit, questions may be put to the witness as to any improper conduct of which he may have been guilty for the purpose of testing his credit221and to show that he should not be believed. Accordingly the witness may be asked about his previous convictions but with a restriction that the cross-examination
213 214

Brown v Dunn [1869] 6 R. 67; Hart [1932] 23 Cr.App.R.202. Bircham [1972] Crim. L.R. 430. 215 Mechanical and General Inventions Co. Ltd v Austin [1935] A.C 346, 360, per Lord Sankey L.C. 216 Code of Conduct for the Bar UK. The Court of Appeal said of the Bar Council Rules (which were superseded by the Code of Conduct) that, although of persuasive force, they do not bid the court: Mc Fadden (1976) 62 Cr App. R. 187. 217 Brown(Milton) [1998] 2 CR.app.R.364. 218 Gillepsie and Simpson [1967] 51 Cr.App.R. 172. 219 Treacey [1944] 30 Cr.App.R.93. 220 Gillepsie and Simpson, above 221 Edwards {1991] 93 Cr. App.R. 48, 55, per Lord Lane CJ.

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remains relevant to the standing of the witness with the court.222Guidance on how to go about asking such questions was discussed in Sankey L.J. in Hobbs v Tinling.223 The Court can always exercise its discretion to decide whether a question as to credit is one which the witness should be compelled to answerin the exercise of its discretion the Court should have regard to the following considerations: (1) Such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies. (2) Such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect in a slight degree the opinion of the Court as to the credibility of the witness on the matter to which he testifies. (3) Such questions are improper if there is a great disproportion between the importance of the imputation made against the witnesss character and the importance of his evidence. So as to avoid a multiplicity of side issues as a rule an answer to a question relating to credit or other collateral matter is final and the other party may not call evidence to contradict the answer.224 Re-Examination T the end of cross-examination, the party calling the witness may re-examine him. This can only be done if there are new matters arising out of cross examination that require clarification so that if there has been no cross examination, the right to re-examine is lost. Even the, re-examination is confined to matters arising out of cross-examination. During re-examination a witness may e asked to explain or expound on an answer given in cross examination, but no new matter may be introduced without leave of the judge. A judge may, however, indulge a party by allowing re-examination of a witness on a matter which he had forgotten to ask in which case the opposing party must be allowed to crossexamine on it. The following rules are to be observed during re-examination on a witnesss statement; a) The witness may not be asked about a previous consistent stamen, unless it is put to rebut an allegation of recent invention. b) If the witness has been cross examined about his witness statement, he may be reexamined about it to clarify or explain the part on which he was cross-examined. c) A witnesss evidence in cross-examination of part of a conversation does not entitle the party calling him to re-examine him on all that was said: new matter relating to the conversation may not be introduced.225
222 223

Sweet-Escott [1971] 55 Cr. App.R. 316,320 per Lawton J. [1929] @ K.B. 1, 51. This passage was quoted with approval by Lord lane C.J. in Edwards, above. 224 Harris v Tippett [1811] @ camp. 637; Palmer v Trower [1852] 8 Exch. 247. 225 Prince v Samo [1837] 7J.Q.B.123

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The court may allow a party to recall a witness for further examination-in-chief or crossexamination and where it does so the witness may be cross-examined and re-examined further on such evidence. Part V - Refreshing of Memory and Production of Documents 167. (1) A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or made so soon afterwards that the court considers it likely that the transaction was at that time fresh in his memory. (2) A witness may, while under examination, refresh his memory by referring to any writing made by any other person and read by the witness within the time mentioned in subsection (1), if when he read it he knew it to be correct. (3) Whenever a witness may refresh his memory by reference to any writing, he may, with the permission of the court, refer to a copy of such writing, if the court is satisfied that there is sufficient reason for the non-production of the original. (4) An expert may refresh his memory by reference to professional treatises. 168. A witness may testify to facts mentioned in any such writing as is referred to in section 167 although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document. 169. Any writing referred to in section 167 or section 168 shall be produced and shown to the adverse party if he requires it, and such party may, if he pleases, cross-examine the witness thereupon. A witness may while giving evidence refresh his memory by referring to a writing made by him at the time or reasonably close to the time of the events the subject of his evidence that the court is of the opinion that the happenings were still reasonably fresh in his memory. Where the document the subject of evidence was made by another person the witness may use it to refresh his memory if he read it at the time of the transaction the subject of the evidence or so soon afterwards and believed it to be true and further that in the courts opinion it was then still fresh in his memory. While refreshing his memory a witness may refer to and rely upon a copy of a writing if the court thinks it unnecessary to produce the original while an expert may refresh his memory by referring to professional treatises. Where a witness can remember the facts as contained in the writing he may still nevertheless testify to them so long as he is convinced the record to be accurate. An opponent is entitled to see and cross-examine on such writing should he need to. 86

The rationale for this practice is that it is the interest of justice if a witness has the opportunity of refreshing his memory by looking at a statement made close to the relevant events especially if a long time has elapsed between the events and the trial. It has been observed that if a witness is deprived of the opportunity to refresh memory, his testimony becomes more of a test of memory than truthfulness; and so to deprive witnesses tends to create difficulties for honest witnesses while doing little to hamper dishonest witnesses.226 The rule therefore is that a witness may refresh his memory when giving evidence from any writing made or verified by himself concerning the facts to which he testifies, provided that the writing was made or verified at the time when the fats were still fresh in his memory. This the witness may do at anytime while giving evidence. It usually happens during evidence in chief, but he may also refresh during cross-examination and in re-examination.227 170. (1) A witness summoned to produce a document shall, if it is in his possession or power, bring it to court notwithstanding any objection which there may be to its production or to its admissibility, but the validity of any such objection shall be tried by the court. (2) (a) The court, if it sees fit, may inspect the document, unless it is a document to which the provisions of section 131 are applied, or take other evidence to enable it to determine on its admissibility. (b) If for such purpose it is necessary to cause any document to be translated, the court may, if it thinks fit, direct the translator to keep the contents secret, unless the document is to be given in evidence. 171. When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so and if it is admissible. 172. When a party refuses to produce a document for which he has had notice to produce, he cannot afterwards use the document as evidence without the consent of the other party or the order of the court. 173. (1) A judge or magistrate may, in order to discover or to obtain proper evidence, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact whether or not it is otherwise admissible; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to object to any such
226 227

Lau Pak Ngam [1966] Crim. L.R.443. Sutton [1992] 94 Cr. App. R. 70.

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question or order, nor, without leave of the court, to crossexamine the witness upon any answer given in reply to any such question: Provided that judgment shall be based only upon facts which are otherwise admissible and which have been duly proved. (2) Subsection (1) shall not authorize a judge or magistrate (a ) to compel a witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under the provisions of Part II, if the question were asked or the document was called for by the adverse party; nor (b ) to ask any question which it would be improper for any other person to ask under section 157 or 158; nor (c ) to dispense with the primary evidence of any document, except in the cases excepted by the provisions of this Act. A court may issue summons to a witness to come to court for the purpose of producing a document. Where the document is in his possession or he has the power to have it produced he must bring it to court as ordered and it matters not that its production or admissibility has been objected to by any party. It falls on the court to try the validity of such objection but he must first avail the document after which the court may then proceed to rule on its validity or admissibility. During this time the contents of the document remain secret until it is admitted in evidence. A party may give an opponent notice to produce a document and when such document is produced in court pursuant to such notice the party calling for its production may inspect it and the party producing such document if he requires may compel the party issuing notice to produce it in evidence so long as it is admissible. Where on the other hand a party declines to produce a document after notice to produce is issued he is barred from relying on it as evidence subsequently save if the court or party calling for its production consents. The court has wide discretion under this section, in order to discover or obtain evidence, ask questions of the parties or witnesses about anything whether admissible or not; order production of documents or anything notwithstanding any objections the parties may raise and the parties are not entitled to cross-examine the witness on answers they may give to such questions save with leave of the court. This wide discretion is tempered by the requirement that judgment be based only on admissible evidence and that answers can only be given to questions which the witness is entitled under the law to answer. CHAPTER VI - IMPROPER ADMISSION AND REJECTION OF EVIDENCE 175. The improper admission or rejection of evidence shall not of itself be ground for a new trial or for reversal of any decision in a case if it shall appear to the court before which 88

the objection is taken that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that if the rejected evidence had been received it ought not to have varied the decision. Evidence may at trial be improperly admitted against the rules of admissibility or out rightly rejected as inadmissible. Where this happens and is discovered after the trial has come to an end or a decision has been made, it cannot provide automatic ground for a new trial or reversal of the decision already arrived at by the court. Where objection is raised by a party on such grounds of improper admission or rejection of evidence the court before which such objection is raised shall if convinced, first that besides the evidence objected to there was sufficient evidence to provide ground for the decision and second, that the evidence objected to would not have made a difference to the decision anyway sustain its decision and ignore the objections. This rule was illustrated in a case where a woman was charged with receiving stolen goods. She made a confession that the stolen goods were in her house and they were recovered by the police. It later turned out that the confession was not voluntary and therefore inadmissible. Evidence of the recovery of the stolen goods from her house was still found admissible on the ground that it existed as a separate fact independent of the unlawful confession. The court observed that the principle respecting confessions had no application to the admission or rejection of facts whether such facts had been obtained involuntarily or otherwise.228 CHAPTER VII - BANKERS BOOKS 176. Subject to this Chapter a copy of any entry in a bankers book shall in all legal proceedings be received as prima facie evidence of such entry, and of the matters, transaction and accounts therein recorded. This chapter enacts special provision to protect the disruption of banking business that could be occasioned by the removal of documents for the duration of a trial. It provides that a copy of an entry in a bankers book be received as prima facie evidence of such records without the original as is the normal requirement. The only requirement before such copy of bankers book can be admitted in evidence is that: (a) the book was, at the time of making the entry, one of the ordinary books of the bank; and (b) the book is in the custody and control of the bank; and (c) the entry was made in the usual and ordinary course of banking business; and (d) the copy has been examined with the original entry, and is correct. Such proof when called for in court can given by an officer of the bank, or the person who has examined the original entry in the books or by way of affidavit or by any person
228

Warickshall [1783] 1 Leach 263.

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authorized by law to take affidavits. A bank cannot be compelled to adduce evidence in the form of bankers books or the contents of such books in proceedings to which the bank is not a party unless the court for special cause makes such order. It has been held that a banker is not bound to disclose that state of a customers accounts except on reasonable and proper grounds such as where the disclosure is under compulsion by law or where there is a duty to the public to disclose or where the interests of the bank requires the disclosure or where the disclosure is made by the express or implied consent of the customer.229 Such books refer to the permanent records of the accounts of a business. They may take different forms but the essentials are that the records are permanent accounts and are regularly kept in the course of business. Where a statute sets out procedure for the adduction of evidence, that procedure must be followed before any evidence can be admitted. The provisions of sections 176 and 177 are mandatory as regards the mode of adducing secondary evidence relating to entries in a bankers book which if not complied with cannot be said to be properly admitted in evidence.230 Under section 179, the court may on the application of any party to legal proceedings order that such party be at liberty to inspect and take copies of any entries in a bankers book for any purpose. Accordingly, once legal proceedings are on against a person, the police may apply for an order under this section to inspect an accuseds bank account if it is relevant to the proceedings to do so. It is not open for a person affected by such order to object on grounds that he may incriminate himself.231 In responding to such application the court should take care not to interfere with the liberty of the individual by limiting itself to the period strictly relevant to the charge, and also consider whether the prosecution has other evidence to support the charge before issuing the order. The rationale for this is to prevent the prosecution from going on a fishing expedition to find material for a case so that an order should never issue where there is other evidence of commission of an offence and application simply intends to top up that evidence.232 PROOF WHERE EVIDENCE IS NOT NECESSARY It is possible under certain circumstances to prove a fact without calling evidence. This may arise where a fact is presumed, is admitted, confessed to, is judicially noticed, as a result of previous acquittals or convictions and estoppel. In all these circumstances it is unnecessary to call evidence to prove a fact. PRESUMPTIONS
229 230

Stephen v Euro Bank Ltd & Anor [2003] KLR 119. Masere v R [1989] KLR 483 231 Williams v Summerfield [1972] 2 Q.B.512, 518-519. 232 Nottingham City JJ. Ex p. Lynn [1984] 79 Cr. App.R. 291.

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4.(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. 1. 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. 2. The term presumption indicates that a certain conclusion must be drawn or that a certain state of affairs must be taken to exist at the beginning of the case , and this conclusion continues to be presumed until the contrary is proved. the most important usage of the term presumption is in connection with the drawing of inferences from proof of certain facts. A presumption is therefore a conclusion that fact B may or must be presumed to exist once fact A has been proved; A is the basic fact and B is the presumed fact. Presumption in this sense operates as a means of discharging the burden of proof. Presumptions are traditionally classified into presumptions of fact and presumptions of law, with a further subdivision of presumptions of law into rebuttable and irebuttable presumptions. Presumptions of Fact Presumptions of fact denote a conclusion which must be drawn due to common occurrence of the fact which gives rise to such presumption. It is an inference of fact which a court may draw as a matter of common experience once a particular fact is proved. The inferred fact is then said to be presumed until the contrary is proved. However, such a presumption may always be contradicted and a court is not bound to draw the inference indicated by common experience. A presumption of fact is merely an inference from facts, which is part of an ordinary reasoning process. Examples of presumptions are where fingerprints of the accused are found at the scene of a crime giving rise to a presumption of fact that the accused was at some time present there. Another presumption is the inference that may be drawn from the possession of property that has recently been stolen otherwise known as the doctrine of recent possession. Another presumption of fact is that people intend the natural consequences of their acts where once the basic fat is proved that a certain event was the natural and probable consequence of a persons act, the person may be presumed to have intended or foreseen that consequence. Under these circumstances the presumption imposes a provisional burden on the party against whom it is operating and who will generally need to respond by adducing some form of evidence to rebut the presumed fact. 91

Presumptions of Law Presumptions of law are divided into irrebutable presumptions and rebuttable presumptions. Irrebutable Presumptions are rules of substantive law which require the court to arrive at a particular conclusion. For example a child under 10 is conclusively presumed to be incapable of committing a crime. Another presumption is that everyman is presumed to know the law. As regards rebuttable presumptions of law, the position is that once a particular fact has been established the presumed fact must be presumed to exist until evidence to the contrary is availed. Examples are presumption of death after seven years of absence, evidence of a celebration of marriage gives rise to a presumption that the marriage was valid and a presumption that a child born during wedlock is legitimate. The effect of presumptions is to indicate upon which party the burden of proof on the issue lies. ADMISSIONS 17. An admission is a statement, oral or documentary, which suggests any inference as to a fact in issue or relevant fact, and which is made by any of the persons and in the circumstances hereinafter mentioned. If a party admits the existence of a fact on which the other proposes to rely it is pointless and time wasting to insist that it be proved by evidence. There are two types of admissions which must be distinguished from one another. There are informal admissions frequently referred to simply as admissions (confessions in criminal cases) which and are distinguished by the fact that the facts to which they refer require proof like any other item of evidence. Formal admissions on the other hand are deliberately made for the purpose of the proceedings, and is binding upon the party who makes it. An informal admission is not deliberately made with a view to court proceedings and even where proved is not binding on the maker and can even be explained away. Formal admissions on the other hand are normally recorded and therefore less likely to raise contest. CONFESSIONS 25. A confession comprises words or conduct, or a combination of words and conduct, from which, whether taken 92

alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person making it has committed an offence. Confessions also known as informal admissions are admissible as an exception to the rule against hearsay on the rationale that where a person makes an allegation against his own interests, it is likely to be true.233Special regulations have been laid to regulate confessions when made to a person in authority but the foremost being that such informal admissions are not to be admitted unless they are voluntary. The rationale for this seems to be that an involuntary confession has a high probability of unreliability. In Kenya the possibility of an untrue confession being made is great considering cases of police maltreatment of suspects. Rejection of such confessions as well partly rests on (a) the principle that a man cannot be compelled to incriminate himself and (b) the importance which attaches in a civilized society to proper behavior by the police towards those in their custody. JUDICIAL NOTICE 59. No fact of which the court shall take judicial notice need be proved. The doctrine of judicial notice allows a court to find that a fact exists without calling evidence to prove it. In its most notorious form it refers to notice taken of facts which are so well known as to render proof unnecessary . Judicial notice refers to facts which a judge can be called upon to receive and to act upon, either from his general knowledge of them or from enquiries to be made by himself from his own information. In a case where the plaintiff having been bitten by a camel while feeding it in a zoo run by the defendant, the question arose whether a camel was a wild or domestic animal. Books about camels were consulted and expert witnesses gave conflicting evidence on oath concerning the behavior of camels. The trial judge resorted to the doctrine of judicial notice and held that camels are domestic animals. The Court of Appeal affirmed the decision when it was observed by Coulson, L J that the reason why evidence was given was for assistance of the judge in forming his view as to what the ordinary course of nature, in this
233

What a party himself admits to be true, may reasonably be presumed to be so: Slatterie v Pooley [1840] 6 M & W. 664, 669, per Parke B.

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regard infact, is a matter of which he is supposed to have complete knowledge234 Judicial notice is a courts personal recognition of generally known facts without the necessity of proof. In everyday life, courts accept everyday truths without necessarily proving them in evidence, that is, self evident facts which it is acceptable to take for granted. The rationale for judicial notice are numerous but there more obvious ones can be said to include; a) The practice enables courts to retain control where too much probing by court would be embarrassing. Judicial notice under the circumstances eliminates the need for proof that could comprise calling evidence facts best left in the realm of the private. b) Where there is possibility of evidence getting more complicated during trial as to require collateral evidence as further proof is in a trial within a trial, the risk of diversion and confusion is real. Judicial notice under the circumstances eliminates such challenges. c) That a fact is judicially noticed, need for proof is obviated and time is saved that would otherwise been spent in the motions of seeking, preparing, adducing and analyzing evidence that are involved in trials d) The practice of judicial notice in matters involving political questions and diplomatic relations is of utmost significance in proving facts relating to other sovereigns over whom our courts do not have jurisdiction. The general rule that a fact once judicially notice need not be proved is qualified since judicial notice is bound up with the personal knowledge of the judge as far as readily demonstrable facts are concerned and also because the court will take judicial notice after taking evidence of the facts giving rise to judicial notice. There is an inherent danger in the practice of judicial notice though. If not properly applied it denies the court and the parties the opportunity to advance arguments on a contested fact and have a decision on the merit of their arguments. This was manifest in an American case where a worker claimed workmen compensation benefits having fallen from a height. His claim was denied by the Office of Workers Compensation. At hearing the presiding officer said that it was here experience that that a soft tissue injury heals in six weeks and took judicial notice of that fact that preventing the complainant from contesting that proposition, and disallowing his claim. The decision was reversed on
234

MacQuacker v Goddard [1940] 1 KB 687 CA

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appeal on grounds that it was an error of law for the presiding officer to take judicial notice of such intricate medical knowledge.235 When a court has to take judicial notice of any fact, it may do so on the motion of a party to the proceedings or on its own motion. When this happens, it is not an opportunity for the judge to apply its own personal knowledge, save that he may only apply such knowledge to evaluate the evidence before him. In this regard it has been held that a court acted improperly when the justices made use of their local knowledge of tidal conditions.236 To avoid the risk of arriving at a subjective decision when judicial notice applies, personal or professional knowledge of judges ought to be drawn on only to evaluate the evidence but not to be evidence in itself.237 Judicial notice is to be taken of the following; All written laws, rules, and principles written or unwritten having the force of law, whether before, or after the commencement of the Evidence Act. Evidence is not admissible to prove the contents of Acts of Parliament or that they have been duly passed by parliament. In the case of customary law, the party who seeks to rely on it must call expert evidence due to the difficulty in establishing specific customary law at a given time unless it is notorious or well documented.238 In a case involving customary law where the dispute was between a cosmopolitan Luo mans widow and his clan members, judicial notice was not taken and instead expert evidence was called to prove that Luo customary law required burial of a deceased man in his ancestral home. This position has been distinguished where the court without inquiry, took judicial notice of the fact that most of Kenyas African communities were patrilineal and under their customs, the matrilineal home belonged to the husband, therefore upon divorce, it was usual for the wife to leave the home and take away only her selfacquired personal property.239 Courts will not take judicial notice of foreign law which in any case must be proved and the burden is on the party wishing to rely on it as part of its evidence. In terms of s. 48 foreign law is a question of fact

235 236

Walker v Halliburton Services [1995] 654 So. 2d 365. Ingram v Percival [1969]1QB 548 237 Weatherall v Harrison [1976]QB 773. 238 Kimani v Gikanga [1965] EALR 735 239 Kivuitu v Kivuitu [1985] KLR

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calling for expert evidence and cannot therefor be taken judicial notice of.240 By comparison, in the Republic of South Africa, the court has emphasized that s. 1(1) of the South African Evidence Ammendment Act 45 of 1988, provides inter alia that Any court may take judicial notice of the law of a foreign statein so far as such law can be ascertained readily with sufficient certainty. Customary law is unwritten law which courts can prima facie take judicial notice of. However, in practice, courts will usually require customary law to be proved as a fact unless it is notorious or well documented a precedent set in 1965.241In the SM Otieno case, which concerned a dispute between a cosmopolitan Luo mans widow and his clan members, expert evidence was called to prove that Luo customary law required that a deceased man be buried in his ancestral land. These two cases were later distinguished when the court took judicial notice without having to call evidence, that most of Kenyas African communities were patrilineal and under their customs, the matrimonial home belonged to the husband, therefore upon divorce, it was usual for the wife to leave the home and take away only her selfacquired property. Any properties which belonged to the matrimonial home remained with the husband.242 The general course of proceedings and privileges of parliament, but not the transactions in their journals. Courts take judicial notice of the general course of proceedings in parliament so that courts will for example take judicial notice of the fact that a bill ought to be read again after six months and also since in practice all that is discussed in parliamentary proceedings is privileged and judicial proceedings, civil or criminal cannot be brought against legislators for what they say in parliament. Articles of war for the Armed Forces. Courts are to take judicial notice of documents and writings on war due to their sensitivity and confidentiality and no evidence is required to prove them. To this extent, it has been held that the classification secret appearing on a document originating from a government office was a matter of public record of which the House of Lords was entitled to take judicial notice.243 Where the question was whether an applicant for a writ of habeas corpus was an enemy alien, the Court of appeal took judicial notice that the country was still at war with Germany by accepting as
240 241

Brenan and Galens Case [1847] 10 QB 492 at 498 Kimani v Gikanga [1965] EALR 735 242 Kivuitu v Kivuitu [1985]KLR. 243 Secretary of State for Defense v Guardian Newspapers [1983] 3 ALL ER 601

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conclusive a certificate a certificate from the Foreign secretary to this effect.244 The public seal of Kenya; the seals of all the courts of Kenya; and all seals which any person is authorized by any written law to use. Sovereignty of nations ordains that all nations recognize the existence of each other, their respective populations, external relations including acts of state, flags and seals as the highest emblems of sovereignty.245 To this extent it has been held that the public seal of a state, properly affixed to proceedings, either judicial or diplomatic is taken judicial notice of as part of the law of that nation and proves itself.246 As regards judgments, it has been held that foreign judgments are judicially noticed when they are authenticated either by the seal of the court or by a copy proven to be a true copy or by a certificate of an officer authorized by law, and this certificate is itself authenticated.247 As regards judgments of Kenyan courts, it has been held that s 60 does not give a court powers to take judicial notice of evidence adduced in another trial which can only come by way of a notice of judgment of a court under s. 47A.248 Where, however, a foreign de facto government has not been recognized by the executive power of the government under which the court is organized, its seal cannot be admitted to prove that government.249 The accession to office, names, titles, functions and signatures of public officers, if the fact of their appointment is notified in the gazette. This section recognizes the authenticating function of the Government Gazette so that once an act is gazette it is needles to prove the such when it is in issue. The fact that any appointment, name, title, function or signature has been gazetted means that it becomes unnecessary to call for evidence of such appointment and judicial notice must be taken of the same. The existence, title and national flag of every State and Sovereign recognized by the Government. This entails recognition of the relations between governments, the status of foreign states and the membership of diplomatic suites. A court in South Africa has taken judicial notice of the fact that the Congolese government was the government of a foreign state recognized as such by the South African government.250
244 245

R v Bottril ex parte Koechen-Meister [1947] KB 41 Griswold v Pitcairn [1816] 2 Conn 85 246 Lincoln v Battele [1831] 6 WEND NY 475 247 Church v Hubbart [1804] 2 CRANCH (6 US) 187 248 David Gichira Judy v R [2005] eKLR 249 US v Palmer [1818] 3 WHEAT 634 250 Parkin v Government of Republique Democratique du Congo [1971]1 SA 259 W

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Where a question arose whether an arbitration award could be enforced against the defendant (the Government of Kelantan) an enquiry was made of the relevant government minister whether Kelantan was an independent sovereign state. The Secretary of State replied that it was and the Sultan was its sovereign ruler and the House of Lords held that the reply was decisive on the issue and there was no need to call evidence on it.251 Judicial notice has also been taken of the diplomatic status of individuals where an individual claimed immunity from the jurisdiction of an English court in an action for arrears of rent the court holding that the statement of the Foreign Office as to his membership of the staff of the German Embassy was treated as conclusive.252 Natural and artificial divisions of time, and geographical divisions of the world and public holidays. Where it is believed that time manifests at a certain point in the course of the day or night such as mid day to be 12 00 am or mid night to be 12 00 pm or morning to be am or evening to be pm it is not allowed to argue over evidence proving such. Geographical boundaries where they are not define by identifiable physical features may not be the subject of argument over evidence so too public holidays when they fall due. In a robbery with violence case visibility during identification was in issue and the appellants argued that 5.30 am was too early in the morning for them to have been properly identified. The court took judicial notice that in the months of February and March the sun rises very early in the Nanyuki region of Kenya and it was possible for the appellants to be identified.253Still on matters time judicial notice has been taken of the fact that in Nairobi, the state of natural lighting at 6.30 am would be good and would not impair visibility.254 In another case where a party applied to court to compel the attendance of a witness who at that time was in Switzerland, the court took judicial notice of the fact that Switzerland was in Europe and as the proceedings were taking place in Kampala it would be excessively expensive bring in a witness from Switzerland to Kampala.255The courts have also had to take judicial notice of the vastness in distance between Nairobi and The Hague accepting that it would be unreasonable to bring a witness from there to testify in Nairobi.256
251 252

Duff Development Co v Government of Kelantan [1924] AC 797 Engelke v Mussmann [1928] AC 433 253 Ahmed Dima Huka& Others v R [2003] HCCR App No.300 254 Bishar Abdi v R [2008]eKLR 255 Mohamed Taki v R [1961]EA 206 256 Commissioner of Customs & Excise v S K Panachand

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Courts have also taken judicial notice of the remoteness, absence of a reliable regular transport system, extremely poor road network and harshness of the environment generally in Mandera. Where the issue was on geographical zoning of cities according to the predominant occupation of occupants, the court took judicial notice of the fact that Mission Street in san Francisco is in a business district.257 On the matter of public holidays judicial notice has been taken of the fact that a certain day of the month was a Sunday according to the Julian calendar.258 In Nigeria, it has been held where in issue was whether there was sufficient evidence on record that should lead to a conclusion whether Lutin of Geneva Switzerland and Lutin of British Virgin Islands were two different and distinct companies. The court held that both companies were distinct, taking judicial notice of the fact that the Lutin Investment Limited referred to in this case was a Swiss company based in Switzerland.259 Courts also take judicial notice of the extent of territories comprised in the Commonwealth. This section seeks to establish the jurisdiction of the Commonwealth countries and therefore requires courts to take judicial notice of the boundaries of states that are members of the Commonwealth. To this extent, a court has taken judicial notice without requiring proof that the Bristol Channel was not within jurisdiction when the Court of Appeal on the instructions of the Home Secretary held that a collision within the Channel had not occurred within the jurisdiction of the English High Court.260 Commencement, continuance and termination of hostilities between Kenya and any other state is judicially noticed. Courts are also alive to the fact that a country may be at war with an enemy state so that so far as cases before them are concerned, such is fact that should be judicially noticed. Judicial notice as been taken of the continued existence of a state of war between England and Germany where the applicant for a writ of habeas corpus was said to be still an enemy alien unable to apply for the writ notwithstanding the unconditional surrender of Germany.261 The names of the members and officers of the court and their deputies, subordinate officers and assistants, and of all officers acting in execution of its process, and also of all
257 258

Varcoe v Lee [1919] 181 P 233 Hauson v Shackleton [1835] 4 Dowl 48 259 Nigerian National Petroleum Company v Lutin [2002] SC 67 260 Fagernes [1927] P 311 261 R v Bottrill, ex parte Kuechenmeister [1947] KB 41

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advocates and other persons authorized by law to appear or act before it are judicially noticed. The underlying rationale here is that these are officers who are within the courts jurisdiction and knowledge and it would be easy to identify them. To this extent, judicial notice has been taken of the fact that the law Society of Kenya publishes annually a list of advocates who hold practicing certificates to inform the public so that a memorandum of appeal signed and filed by an advocate who did not hold a current practicing certificate was incompetent.262 Judicial notice has also been taken of the fact that documents drawn by an advocate who does not hold a current practicing certificate were null and void ab initio the court finding as a fact that on the respective dates two documents were drawn by an advocate who did not hold a current practicing certificate and was not therefore qualified to draw those documents in view of the provisions of s. 34 of the Advocates Act cap 16.263 Courts also take judicial notice of the rules of the road on land or at sea or in the air. The rationale for this is that uniform rules should apply for every system of transport because it would be unreasonable for the court to apply different criteria for every incident depending on its peculiar circumstances. To this extent courts have taken judicial notice of the fact that a tram car if driven at a reasonable speed but negligently failed to apply brakes would collide with oncoming cars and further that it carried passengers who paid fair separately.264A court has also upheld the use of local road knowledge by a judge on hearing an appeal against conviction from a magistrates court.265 Courts are inclined to accede to the fact that nature always takes its course and judicial notice should be taken of the ordinary course of nature. It has been held where a man was seeking divorce from his wife on grounds of adultery because she had given birth despite that fact that he had been abroad for 12 months that courts would take judicial notice that human gestation lasts 9 months but it would not shut its eyes to the possibility of an abnormal gestation period of 12 months in the absence of proof of adultery.266Save such exceptional cases, courts have taken judicial notice that boys are generally mischivieous in nature and it would have been absurd to call evidence on that fact.267 In a divorce case where the issue was whether division
262 263

Obura v Koome [2001] KLR 109 Wilson Ndolo Ayah v National Bank of Kenya [2009] eKLR 264 Chapman v Kirke [1948] 2 KB 450 265 Chesson v Jordan 266 Preston-Jones v Preston-Jones [1951] AC 391 267 Clayton v Hardwicke Colliery Co. Ltd [1915] 85 KB 292

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of assets should be based on the respective contributions of the spouses, the court took judicial notice of the fact that in Kenyan society, it is wives who ordinarily shoulder the burden of nursing children.268Where the plaintiff was bitten by a camel, the question arising was whether a camel was a wild animal or a domestic animal for purposes of determining the question relating to liability. The trial judge held that camels were domestic animals while the Court of Appeal affirmed that judicial notice could be taken of the matter.269 Where a charge a preferred against three boys was for malicious damage to property by killings animals ordinarily kept for domestic purposes, the question arising was whether it was necessary to prove that the said animals were so kept. The court took judicial notice of the fact that cats are ordinarily kept for domestic purposes and evidence of ownership was not necessary for conviction.270 Where a Claimants husband was killed in a motor accident involving, Home Office records disclosed that he had received that he had numerous criminal records and nothing to show that in his lifetime he had any honest employment and he possessed no assets. The Claimant was aware that her family lived on the proceeds of crime. The court in passing judgment took judicial notice of the fact that the life of a criminal was an unhappy one and therefor damages for loss of expectation of life, which in reality were damages for loss of the element happiness in life, was assessed at one half of the amount due.271 Judicial notice has been taken of the number of illiterate persons in Kenya and that this fact should be borne in mind in an action for passing off.272 Courts are taken to have proficient knowledge of the English language generally and the meaning of English words in particular which lends credence to the statutory requirement that they should be judicially noticed. The rationale for this is that litigation frequently involves interpretation of language so that a judge frequently has to decide whether a word in a statute or legal instrument is used in its ordinary meaning. Clarification under the circumstances is sought from a dictionary, usually the Oxford English Dictionary which is treated as an authoritative source. in a case where a statute governing tenancies contained two prohibitions one wide and the other applied to limited classes of cases the judge held without calling evidence that the wide
268 269

Miriti v Kithia [2004] eKLR McQuaker v Goddard [1940] 1 KB 687 CA 270 Nye v Niblett [1918] 1 KB 23 271 Burns v Edman [1970] 2 QB 541 272 Brooke Bond Kenya Ltd v Chai Ltd [1971] EA

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prohibition was to be treated as not applying to cases within the limited prohibition.273 In another case involving meaning to be attached to English words an applicant sought orders of revocation or annulment of grant on grounds that it was obtained fraudulently by making a false statement or by concealment from the court of material facts. To revoke The application was held to be bad in law because it did not disclose any reasonable cause of action as one could move to court only to revoke, grant or annul and the Applicants prayer did not disclose any of these and was therefor defective.274 In South Africa, it was held that courts should take judicial notice of the fact that male rape exists and the definition of rape should be extended to gender neutral terms by adding the anal penetration of a male to the actus reus of the offence.275 The meaning of terminology was in issue where a court observed that although there was no definition of market value as used in statute, in common parlance it connotes the price which an item ought reasonably to be expected to fetch in a sale on the open market, that is between a willing seller and a willing buyer when the market is legal, free, formal and above board.276 All matter of general or local notoriety may be said to be facts which are beyond serious doubt, are so notorious or of such common knowledge that they require no proof and are open to no evidence in rebuttal. Notoriety of fact depends on the level of general and common usage among members of a society. Such facts must be so well known that there should be no dispute as to their existence, reality or truthfulness as to require proof. In a claim arising out of a breach of covenant to plant coffee, the defendant pleaded that it was washed away by strong rainfall and asked the court to take judicial notice of the normal intensity of rainfall and erosion caused by heavy rainfall. The court was prepared to take such judicial notice but was unwilling to agree without evidence that the rainfall in question was an act of God and that no precautions which the defendant had taken would have prevented washing away of coffee trees.277 Judicial notice has been taken in Kenya of the fact that the Seventh Day Adventist Church is an organization that can only make decisions through its organs and delay in making such decisions would be inevitable.278 Courts have also taken judicial notice of the fact that in most robbery with violence cases involving more than one suspect, not all suspects attack and steal from their victims. Some are assigned other roles and are not directly involved in the actual robbery.279 In a case where
273 274

Cannon Street Ltd v Singer & Friedlander Ltd [1974] 1 ALL ER 677 Julius Kithiki Muema v Priscilla Ndumi Muema & Another [2004] eKLR 275 Masiya v DPP Pretoria and Others 276 Kolongei v R [2005] 1 EA 212 (CAK) 277 Ryde v Bushell [1967] EA 817 CA 278 Seventh Day Adventist Church East Africa & pastor M Nyakego v M/S Masosa Construction Co Ltd 279 Michael Mbugua v R [2000] eKLR

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usage of the word market value was in issue the court held it to be a matter of common notoriety which it could take judicial notice of .280 Where the issue was whether payment of dowry operated to validate marriage under Teso customary law and practices, the court held that the issue of dowry was so notorious that the High Court and Court of Appeal are entitled to take judicial notice of it under customary laws of all African communities in Kenya and that no valid marriage could be contracted without payment of marriage consideration.281 Courts have also taken judicial notice not only of the existence of Kikuyu customary law but also of the existence of other African customary laws in Kenya.282 Judicial notice has also been taken of the fact that during the period of emergency in Kenya,many families in Kenya especially in Central province were detained or fled their homes and when the process of land demarcation and registration started, those sons who remained behind were registered to hold the land in trust for those who were absent in the process creating customary trust in land.283 On an application to file appeal out of time the court took judicial notice of the fact that the times between December 2007 and 5th February 2008 general elections were held and chaos ensued thereafter disrupting normal transport and communication.284 Where the issue was ownership of a cell phone it was held that the method of determining the serial number of a cell phone is not something which a court can take judicial notice of as it is not listed under s. 60 neither is it a matter of general or local notoriety.285 Courts will take judicial notice of all other matters of which it is directed by any written law to take judicial notice. This part concerns existing or new law which may provide for the courts to take judicial notice of matters not expressly provided for in the foregoing sections. Where for example an accused was charged with conspiracy to defraud the Standard Bank it was argued that the bank was not a person capable of being defrauded the charge must fail. The court fell back on the Interpretations and General Provisions Act which defined person to include a company or association or body of persons or corporation. The court proceeded to take judicial notice of the meaning in the Act. PREVIOUS ACQUITALS AND PREVIOUS CONVICTIONS

280 281

Kolongei v R [2005] 1 EA 212 ( CAK) Atemo v Umujaro [2003]1EA 4 (CAK) 282 Githiba v Githiba [2001] KLR 283 Mbogo & 3 Others v Mbogo [2008] 1 KLR (Gender and Family) 284 Bashow Issak dakat v R [2008] e KLR 285 John Nyabuto Bosire v R [2006] e KLR

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In certain circumstances the effect of previous acquittals and convictions is to prove matters without calling evidence. Acquittals (Autrefois Acquit). 43. The existence of any judgment, order or decree which by law prevents any court from taking cognizance of a suit or holding a trial, may be proved when the question is whether such court ought to take cognizance of such suit or to hold such trial. 44. (1) A final judgment, order or decree of a competent court which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is admissible when the existence of any such legal character, or the title of any such person to any such thing, is admissible. (2) Such judgment, order or decree is conclusive proof (a) that any legal character which it confers accrued at the time when such judgment, order or decree came into operation; (b) that any legal character to which it declares any such person to be entitled accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person; (c) that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease; (d) that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property. Acquittals cannot be challenged. Once a person has been acquitted of an offence, he cannot be prosecuted again for the same offence. This rule is known as the rule against double jeopardy and finds expression in the maxim nemo debet bis puniri pro uno delicto. The rule against double jeopardy is infringed if the accused is put on trial again for the offence of which he has been acquitted. It is also infringed if any other steps are taken by the prosecutor which may result in the punishment of the accused on some other ground for the same offence. But it is not infringed if what the prosecutor seeks to do is to leads evidence which was led at the previous trial, not for the purpose of punishing the accused in any way for the offence of which he has been acquitted, but in order to prove that the defendant is guilty of a subsequent offence which was not before the court in the previous trial.

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This rule is in any case subject to exception that evidence of an offence of which a defendant has been acquitted may be admissible at a subsequent trial for another offence if it is relevant to the proof of the second offence. Defence is entitled to rely on previous acquittal. The mere fact that that there has been a previous trial is usually irrelevant and therefore, inadmissible on a re-trial. This does not mean that it is never permissible to refer to an earlier trial, for it may be necessary to do so to establish some relevant fact as ,for example, in identifying the occasion on which some particular statement or admission was made.286Some exceptional feature is needed in order to make evidence of what happened in an earlier case relevant. In Edwards287 it was held that the fact a police officer had been involved in an earlier cases where juries had acquitted was not in itself sufficient for evidence of those acquittals to be given so that the acquittal of the defendant in case A, where the prosecution depended largely or entirely upon the evidence of a police officer, does not normally render that officer liable to cross examination as to credit in case B. the fact that a court returns a verdict of not guilty does not go to prove that an important witness for the prosecution is a liar.288 Also in Doosti289 the Accused was charged with conspiracy to supply heroin. He had been acquitted six months earlier of drugs offences occurring at the same premises at which he was arrested. The same police gave evidence at both trials. The trial judge refused to allow defence counsel to cross-examine the officer about the previous acquittal. The Court of Appeal upheld this ruling because the cross examination was not directed to any relevant issue. The court said that the previous acquittal did not mean the officer had been lying or was unreliable but was consistent with the court being sure that the case had been made out. On the other hand, if an acquittal has an effect on the credibility of a prosecution witness or the reliability of a confession it may well require evidence of the acquittal to be admitted. In Edwards 290Lord Lane C.J. said that if a police officer had given evidence of an admission in case A evidence of that acquittal should be admitted in case B if it is alleged that the officer fabricated an admission. Convictions as evidence of the offence charged. 47A. A final judgment of a competent court in any criminal proceedings which declares any person to be guilty of a criminal offence shall, after the expiry of the time limited for an appeal against such judgment or after the date of the decision of any appeal therein, whichever is the latest, be taken as conclusive evidence that the person so convicted was guilty of that offence as charged.

286 287

Sambasivam [1950] A.C. 458, 471. [1991] 93 Cr. App.R. 48, 57. 288 Thorne [1978] 66 Cr. App.R.6, per Lawton L.J. 289 [1986] 82 Cr. App.R 181. 290 Above.

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This section makes provision for the extent to which judgments of court in other proceedings are admissible in evidence to prove the facts on which they are based. Where a person has been convicted of a crime and he has not appealed or he has appealed and a decision has been made on the appeal that decision is to be taken as proof of the guilt of that person if the court so found. This however applies only to the accused if he was also the accused in the former proceedings and may not be applied to somebody else. Where for example Madowo is convicted of rape of Mahinya. If Madowo subsequently sues Ayieya for libel for writing that Madowo is a rapist, a question arises whether Ayieya can adduce evidence of Madowos conviction in support of his plea of justification. If Jura is subsequently prosecuted for rape of Mahinya as an accomplice of Madowo, can the prosecution use Madowos conviction in evidence against Jura? This section would seem to take the position that the conviction of Madowo is conclusive as to the state of affairs that they create so that if the issue arose whether Madowo had the status of a convicted rapist, a certificate in proper form of Madowos conviction for rape is conclusive as to the act of conviction for the offence of rape. The outgrowth of this is that Madowo will be stopped from denying the facts on which the judgment was based were the same issues to arise in latter proceedings between the same parties.

OPINION EVIDENCE Part IX - Opinions 48. (1) When the court has to form an opinion upon a point of foreign law, or of science or art, or as to identity or genuineness of handwriting or finger or other impressions, opinions upon that point are admissible if made by persons specially skilled in such foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger or other impressions. (2) Such persons are called experts. 49. Facts not otherwise admissible are admissible if they support or are inconsistent with the opinions of experts, when such opinions are admissible. 50. (1) When the court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is admissible. (2) For the purposes of subsection (1), and without prejudice to any other means of determining the question, a person is said to be acquainted with the hand-writing of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when in the ordinary course of 106

business documents purporting to be written by that person have been habitually submitted to him. 51. (1) When the court has to form an opinion as to the existence of any general custom or right, the opinions as to the existence of such custom or right of persons who would be likely to know of its existence if it existed are admissible. (2) For the purposes of subsection (1) the expression general custom or right includes customs or rights common to any considerable class of persons. 52. When the court has to form an opinion as to(a) the usages and tenets of any association, body of men or family; or (b) the constitution and government of any religious or charitable foundation; or (c) the meaning of words or terms used in particular districts or by particular classes of people, the opinions of persons having special means of knowledge thereon are admissible. 53. When the court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is admissible: Provided that such an opinion shall not be sufficient to prove a marriage in a prosecution for bigamy or in proceedings for a divorce, or in any proceedings for damages against an adulterer. 54. Whenever the opinion of any living person is admissible, the grounds on which such opinion is based are also admissible. An opinion is an inference drawn from perceived facts and while evidence of fact is admissible, opinion evidence is not admissible in evidence. Witnesses can only give evidence as to facts but not inferences to be drawn from those facts which are matters for the judge. The common law rule is that a witness may not give an opinion on any matter which does not call for the special skill or knowledge of an expert if the facts on which the opinion is based can be stated without reference to the opinion in a manner equally conducive to the ascertainment of the truth.291Fundamentally witnesses testify about facts and not about the opinions that they have formed from facts since it is the role of a judge to hear the evidence, find facts, and make inferences (form opinions) from them and that freely allowing opinion evidence from witnesses may hinder and even mislead a judge.
291

Cross and Tapper 511, citing Sherrard v Jacob [1965] N.I 151 at 157-158 (Lord MacDermott).

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There are exceptions to this general ban on opinion evidence\where opinion evidence is either inevitable or desirable. Opinion evidence is said to be inevitable where it is not reasonably practicable for the witness for the witness to separate the observed facts from inferences that the witness draws from the facts. It is desirable where inferences to be drawn relate to some matter involving special skill or knowledge which is outside the normal experience and competence of the judge so that he needs expert help in order for him to discharge his duty of fair and accurate dispensation of justice. These two exceptions thus allow for admission of non-expert opinion evidence. Non-Expert Opinion If it is not reasonably practicable for the witness to separate observed facts from the inferences that the witness draws from the facts, he is allowed to give the evidence in the form of an opinion though he is not an expert. This is out of the rather obvious realization that all evidence of fact is evidence of opinion.292This because whenever a witness observes anything, stores it in his memory, retrieves later and narrates it to court later on it is impossible for such witness not to resort to inference, explanation and classification to make sense of such previous observation. Given this scenario situations frequently arise in court where it is impossible for the witness to separate facts from inferences regarding certain features or characteristics of things observed by him and he is then allowed to describe such features or characteristics in a manner that amounts to giving an opinion. Examples where witnesses who are not strictly experts may give opinion evidence are; s.50. handwriting, s.51. general custom or right, s.52. (a) the usages and tenets of any association, body of men or family; or (b) the constitution and government of any religious or charitable foundation; or (c) the meaning of words or terms used in particular districts or by particular classes of people, s. 53. relationship of one person to another s. 54. the grounds on which opinion is based are also admissible. In cases occurring in the examples above it is usually unavoidable that that the witness will give evidence in the form of an opinion since there is no other way in which factual evidence can be given and the only thing the court or opponent can do is probe the basis of such opinion with a view to challenging the weight of such evidence. Expert Evidence
292

J.B.Thayer, A Preliminary Treatise on Evidence at the Common Law (Boston, 1898), p. 524;) Wigmore, Vol. VII (Chadbourn rev. 1978), para. 1919.

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At common law the position regarding expert evidence has been stated thus A witness may not give his opinion on matters which the court considers call for the special skill or knowledge of an expert unless he is an expert in such matters.293 The rationale is that it is a decision for the trial judge in each case whether the issue on which a party proposes to adduce expert evidence is one that requires such a degree of skill and knowledge as to be outside the experience of the judge. The admissibility of such evidence is founded on necessity as was stated by Lawton L.J in Turner: An experts opinion is admissible to furnish the court with scientific information that is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary294 Where expert opinion is found to be unnecessary as the matter is within the judges knowledge and experience, the experts evidence must be excluded as being superfluous and its tendency to unduly dominate the courts evaluation of the facts thus usurping his function. In Kenya the specific situations when expert opinion is admissible are prescribed in s.48 (1) as points of; a) foreign law, b) science or art, or c) as to identity or genuineness of handwriting or finger or other impressions Who is an Expert? Who may be regarded as expert witnesses and what are the conditions which they must satisfy to validate their expertise? The practice over the years has been that it is left to the judge to decide whether the witness is an expert in the matter he proposes to adduce evidence on, it therefore matters not that the witness may fall short on the requisite professional qualifications or experience. Expertise may have been derived either from a course of study or from experience. The experience may have been gained in a trade or business. It may also have been gained during the course of work. In practice, that the subject is one on which expert evidence is admissible, and the witness has specialized knowledge or experience of the subject, the witness evidence will be admitted and issues dwelling on his qualifications will only go to the weight attached to his evidence rather than its admissibility. A case in point was a case where expert evidence of handwriting was allowed from a lawyer who had made a special study of handwriting in his spare time.295This is, however, an old case and virtually all branches of science have now become so technical that the scope for armatures to appear as expert witnesses is distinctly limited. This being the case, the burden of proving that the witness is an expert lies on the party calling that
293 294

Cross and Tapper at p 510, citing Sherrard v Jacob [1965] N.I. 151 [1975] Q.B 834 at 841 C.A. 295 Silverlock [1894] 2 Q.B. 766

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witness but where the witness expertise is in doubt but the opponent does not object, it is a duty of the judge to intervene.296 A court should as well not usurp the role of the expert so that it has been held that a judge erred in comparing signatures and attributing both of them to a person without the involvement of an expert and further in discrediting the partys evidence on the basis of the finding on the signatures.297 On the part of the expert, the most he can properly say is that he does not believe a particular writing to be by a particular person or that the two writings are so similar as to be indistinguishable and it falls upon the court to accept or reject the opinion of such expert.298 Where medical evidence is involved, courts have held that while a medical opinion is entitled to the highest regard, a court is not bound to accept it if from the outward appearance it is clear there is no proper basis for the conclusion reached.299 As regards reports by government analysts s.77 envisaged that in exercising the wide discretion whether to admit such report into evidence , the court would have to satisfy itself as to the circumstances surrounding the recovery of the substance, sending it to and from the analyst, the identity of the person who signed the analysts report and where he is absent why that person was not called before the court to produce the report himself and other necessary related information.300 Where guns are involved, the Court of Appeal has recommended that it ought to be standard practice to produce microphotographs as that would furnish the court with the necessary criteria for testing the accuracy of the conclusions of the firearms examiner. This enables the court to form its own independent judgment by the application of such criteria to the facts proved in evidence.301 Where injury has resulted in death and although death can be established without medical evidence relating to its cause such a where there are obvious and grave injuries, medical evidence should still be adduced in such cases to prove the effect of such injuries as opinion expert evidence and as evidence supporting the cause of death alleged by the prosecution.302 Reliability of Expert Evidence

296

Inch (1990) 91 Cr. App. R. 51, CMAC (held that the judge should have ruled that a medical orderly was not qualified to express an opinion as to the cause of a wound despite the failure of defence counsel to object to the orderlys evidence) 297 Shah v Padamshi [1984] KLR 531. 298 Gari & 2 Others v R [1990] KLR 656. 299 Mingire v Attorney General [1990] KLR 250 300 Wanjiku v R [2002] 1KLR 301 Choge v R [1985] KLR 1 302 Mbelle v R [1984] KLR 626.

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Reliability or otherwise of expert evidence is usually left to the judge to decide the weight to attach to it. Where there is other evidence which tends to conflict with an experts evidence, a judge is not bound to accept it even where it is unequivocal and uncontradicted by an opponents evidence. It is expected that an expert witness will set out the scientific criteria for testing the validity of his opinion. Where the expert does not do so, his opinion has little or no weight since it cannot be tested by cross-examination.303 In the circumstances the evidence must be excluded as lacking in sufficient relevance or that it would be more prejudicial than probative. Sometimes scientific criteria is set out by the expert as required but is promptly challenged by the opponent as not comprising a solid foundation for an expert opinion and therefore invalid. In the United States the response to this problem has for long been what is generally referred to as the general acceptance test in which courts will go a long way in admitting expert testimony deduced from a well-recognised scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field to which it belongs304In the United Kingdom the position is slightly different in that the Court of Appeal has advanced the proposition that evidence based on a developing new brand of science or medicine is not admissible until accepted by the scientific community as being able to provide accurate and reliable opinion.305 Where an expert witness gives evidence he owes a duty to the court and to the client who retains his services. The experts duty to the court, however, is overriding and takes precedence over his duty to the client since identifying with a particular cause will invariably lead to failure to disclose information adverse to their client thus failing in the duty of assisting the court in resolving issues and coming to a just conclusion. Section 48 recognizes the existence of handwriting experts and enables evidence to be given of their opinion as to identity or genuineness of handwriting. It may be that if a positive opinion is given that a particular writing is in the hand of a particular person it should be received with caution but it seems that, at any rate, under the law of Kenya a handwriting expert must be allowed to give his opinion that the two documents were written by the same hand ; otherwise it is not easy to see what kind of opinion an expert can give on any matter concerning hand writing.306 It is desirable that an expert should attend court and explain to the court his expert opinion and grounds upon which that opinion is based. This is more particularly so in a case where the court may have difficulty in understanding the expert opinion or report
303

Davie v Edinburgh Magistrates (1953) S.C. 34. In Gilfoyle [2001] 2 Cr. App. R. 57,67 the Court of Appeal appeared to say that an experts failure to provide the court with the necessary scientific criteria for testing the accuracy of the experts conclusions would render the evidence inadmissible. 304 Frye v United States [1923] 293 F.1013. 305 Gilfoyle [2001] 2 Cr. App.R.57 306 Nguku v R [2004] 2 KLR 5.

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without full explanation by the expert.307 The most a handwriting expert can say in an appropriate case is that he does not believe a particular writing was by a particular person or positively that the writings are so similar as to be indistinguishable. It is the function of the court to make up its own mind whether a particular writing is to be assigned to a particular person and this applies to expert evidence from other sources too. It is only expected of the expert to come to court prepared to justify his opinion and the more eminent the expert, the less the need for demonstration. The record and judgment must show that the court satisfied itself of the accuracy of the expert upon whose opinion he relies. If the relevant material is before the court and it applies its mind to the matter and there is no cross-examination, no objection can be taken.308 EVIDENCE OF CHARACTER Part X Character In common law character meant the general reputation which a man or woman bears.309 Under section 55, 56 and 57 the meaning of the word has been interpreted to include both reputation and disposition. Evidence of character is therefor a term used to describe any testimony or document submitted for the purpose of proving that a person acted in a particular way on a particular occasion based on the character or disposition of that person. Usage in law of the expression good character is usually interpreted to mean that the man has no previous convictions for criminal offences and conversely talk of bad character means he has previous convictions. It does not connote moral rectitude as it does in everyday speech. Character in Civil Cases 55. (1) In civil cases, the fact that the character of any person concerned is such as to render probable or improbable any conduct imputed to him is inadmissible except in so far as such character appears from facts otherwise admissible. (2) In civil cases, the fact that the character of any person is such as to affect the amount of damages, is admissible. During proceedings in civil cases the fact that the character of a person concerned in the case tends to prove or disprove any conduct alleged against such person is not admissible. In other words it is not
307 308

Angela v R [2001] KLR 125. Gitau & Anor v R [1989] KLR 187. 309 Rowton [1865] Le.& Ca.520.

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admissible to rely on evidence of a persons character to prove an allegation. There are, however, specific instances in which this kind of evidence is admissible. In particular, when an individual claims to have good character (particularly when a witness claims to be honest or peaceful), the opposing side can rebut this claim by introducing character evidence against that individual. The rationale for this exclusionary rule were that evidence of previous misconduct is generally irrelevant; and such evidence is so prejudicial that a fair trial is impossible. Where such character as suggested is discerned from facts adduced as evidence it is admissible not as evidence of character but as factual evidence leading to the conclusion that a person is of certain character. This as a matter of fact is not evidence of character but evidential proof of character. An exception to this rule where evidence of character is admissible is where such evidence if adduced would go to affect the amount of damages awarded. For example evidence of character may be admitted where the character of the party is an element of the claimfor example, in a defamation claim where party A sues party B because B said that A is dishonest. In such a claim, B can introduce evidence that A has a reputation as a dishonest person. Character in Criminal Cases Good Character 56. In criminal proceedings, the fact that the person accused is of a good character is admissible. During trial in criminal proceedings only evidence of the good character of an accused is admissible. Evidence that the accused is of bad character, is a suspect or is a convict in any matter other than that with which he is presently charged is not inadmissible. But such evidence of character is otherwise admissible: a) where it is evidence of and goes to prove a fact that is in issue or is directly relevant to a fact in issue in the matter under trial b) to prove that the accused has committed or been convicted of an offence if such other offence would go to prove that he is guilty of the offence charged c) where the accused has brought his own character into question by asking the prosecution witness questions to prove his own good character d) where the accused has brought his own character into question by asking questions to prove the bad character of the prosecution witness and 113

e) he has given evidence against another person who is charged with the same offence. Where the accused puts his own character in issue by giving or calling evidence of his good character or cross examining witnesses to that effect, the prosecution is entitled to call evidence of his bad character in rebuttal.310 Where while conducting his defence, the accused does so in such a manner as to bring his own character into question as above the court may deny evidence of his character to be admitted where in its opinion admission of such evidence would be more prejudicial to the accuseds case than the damage it inflicts on the character of the prosecution witness. The question in each case would be whether the evidence was sufficiently relevant and had the necessary probative force to outweigh its prejudicial effect.311 In terms of s.57.(2) evidence of previous conviction may be given only in mitigation after an accused has been convicted with a view to affecting the sentence to be passed. Bad Character Evidence of a persons bad character is evidence of either misconduct on his part or a disposition towards misconduct on his part where misconduct is construed to mean the commission of an offence or other reprehensible behavior. Evidence that a person has committed an offence may take several forms. First, is by proof of a previous conviction and second, evidence that suggests that a person has committed an offence even if there is no charge or conviction such as a case where a person has been acquitted,312provided that the evidence is otherwise admissible. In a criminal trial the accused may introduce opinion evidence or reputation evidence to prove that he did not commit the crime of which he is accused. However, if an accused does introduce such evidence, the prosecution may then counter this with evidence of the accused's bad character. The accused cannot introduce evidence of specific good acts to show that he did not commit a crime. When a witness testifies as to the accused's good character, the prosecution may ask if the witness was aware of specific bad acts done
310 311

See Rowton above. Also Waldeman [1934] 24 Cr. App.R. 204. Lord Mackay L.C in DPP v P [1991] 93 Cr App. R 267, 279. 312 Z [2000] 2 A.C 483; [2000] 2 Cr. App.R.281

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by the accused. This is permissible because the question is not asked to prove the accused's character, but simply to impeach the credibility of the witness. Another exception arises in criminal trials where the accused introduces evidence of the character of the victim, in order to show that the accused acted in self defense. For example, if the accused is on trial for assault on the victim, the accused can introduce evidence that the victim has a reputation for violence, or that a witness has the opinion that the victim is a violent person, in order to show that the defendant actually acted in self defense.313The High Court has admitted an Appellalnts submissions that since his imprisonment he had changed his character and that he wa now a born again Christian.314 The prosecution may counter this by introducing similar evidence of the victim's peaceful nature, or by introducing similar evidence of the accused's violent dispotion. 57. (1) In criminal proceedings the fact that the accused person has committed or been convicted of or charged with any offence other than that with which he is then charged, or is of bad character, is inadmissible unless (aa ) such evidence is otherwise admissible as evidence of a fact in issue or is directly relevant to a fact in issue; or (a) the proof that he has committed or been convicted of such other offence is admissible under section 14 or section 15 to show that he is guilty of the offence with which he is then charged; or (b) he has personally or by his advocate asked questions of a witness for the prosecution with a view to establishing his own character, or has given evidence of his own good character; or (c) the nature or conduct of the defence is such as to involve imputations on the character of the complainant or of a witness for the prosecution; or (d) he has given evidence against any other person charged with the same offence: Provided that the court may, in its discretion, direct that specific evidence on the ground of the exception referred to in paragraph (c) shall not be led if, in the opinion of the court, the prejudicial effect of such evidence upon the person accused will so outweigh the damage done by imputations on the character of the complainant or of any witness for the prosecution as to prevent a fair trial.
313

Orwochi Arani v Republic [1976-80] 1 KLR 1638. (where Madan J admitted evidence that the accused was a young man of good character) 314 Benard Mwangi Mbogo v Republic [2008] eKLR

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(2) Notwithstanding the provisions of subsection (1), evidence of previous conviction for an offence may be given in a criminal trial after conviction of the accused person, for the purpose of affecting the sentence to be awarded by the court. 58. In sections 55, 56 and 57 the word character includes both reputation and disposition; but, except as provided in section 57, evidence may be given only of general reputation and general disposition, and not of particular acts by which reputation or disposition were shown. The effect of section 57 is that evidence of bad character of an accused person is admissible if, but only if the circumstances in section 57(1) apply. Evidence of bad character is admissible if the purpose of its production is not to prove the fact of bad character but rather to prove a fact in issue or a fact that is directly relevant to a fact in issue.315 Second, proof that a person has been convicted of an offence is admissible to prove not the fact that he is of bad character but merely the fact of his having been convicted of the offence charged. Third, where the accused has himself asked of the prosecution questions with a view to establish his character or given evidence to establish his good character. Fourth, where he conducts his defence in a manner that involves imputations on the character of the prosecution witness and finally where he has given evidence against a person charged with the same offence. The Constitution of Kenya at s. 72(1) and the Criminal procedure Code cap 75 at s. 207 enjoin a trial court to sentence an accused person only for the offence with which he is charged, and that the facts to be given are to be facts relating to the case. Case law is well established that where the prosecution wishes to have an accused dealt with for other offences which are not charged, the accused can be charged with those offences or, in the High Court, that accused may ask the court to take other offences into consideration.316 The prosecutor in a trial is restricted to the facts upon which the trial is founded. It is improper for him A after conviction and before sentence, to make any statement to the court against the convict which if challenged he would be unable to prove by admissible evidence. It is therefor established practice that evidence of an accused persons previous bad character is inadmissible unless the accused himself has put his own character in issue. But where it is obvious that it is the accused himself who asked the witness questions which led to the answers touching on his character and the witness was bound to answer

315

Oyugi v Republic Criminal Appeal no. 164 of 2001[CA] held that it would be wrong for the prosecution to introduce into its evidence the fact that the Appellant had recently been convicted and sentenced foe assaulting his wife in the absence of evidence to show that the previous conviction was part of res gestae or that it constituted facts showing the Appellants state of mind or that they were facts showing a system under ss. 14 and 15 of the Evidence Act. Cap 80. 316 Ndabi v R [1987] KLR 304.

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the questions, it would be unjust for the Accused to complain about the issue which the Accused on his own volition unprompted by anyone brought upon himself.317 If they do not apply such evidence is not admissible. The proviso to this section makes such evidence admissible subject to exclusion in certain circumstances if the court considers that the adverse effect that it would have on the fairness of the proceedings requires so.
CHAPTER III - PROOF

Part 1 - Facts Requiring No Proof 59. No fact of which the court shall take judicial notice need be proved. JUDICIAL NOTICE The doctrine of judicial notice empowers a judge or court to declare that it finds certain facts to exist without the need for evidence to be given as to the existence of the facts. Such finding is made on the basis that the act is within the knowledge of the court itself. The doctrine enables the court to dispense with the requirement for proof of facts even if not formally admitted. The rationale for judicial notice is concerned with efficiency and the desirability of consistency. Section 60 (1)expressly states when courts should take judicial notice as well as when courts should overtly take judicial notice of certain facts by drawing on factual knowledge and experience about the world and the ordinary course of human affairs. Courts should be alive to happenings in society because law does not operate in a vacuum and a court closed to the ongoings in society cannot possibly understand the impetus behind a pleading. Even the such ongoings should not be the ones to influence the outcome of a case as what should influence the outcome of a case is the law and facts as applied.318 It is possible to distinguish within section 60 (1) three applications of the doctrine of judicial notice: a) Notorious Facts Courts will take judicial notice of facts which are matters of common knowledge and are not subject to serious dispute. The reasoning is that
317 318

Mohamed Hassan Osman v Republic [2008] eKLR. Ojiambo v Standard Ltd & 2 Others [2004] KLR 496.

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it would be pointless to require proof of them. Matters of common knowledge may change from time to time so that in 1848 a court had no difficulty in assuming that there was general knowledge of Aesops fables.319The same assumption cannot hold today. Again a fact may not be notorious amongst a entire population so that certain facts may be common only to a certain group. Judicial notice can still be taken of such fats if they are within the courts knowledge. b) Facts Judicially Noticed after Enquiry This category of cases comprises cases in which the court declares certain facts to exist after consulting sources of authority since the facts in question although not notorious can be clarified by reference to authorities. These can be categorized as follows; 1. Politial and Diplomatic Issues. In such cases courts usually leave the final word to the executive out of necessity since it would usually be inconvenient to investigate the matters forensically, and also because wider political judgments are unsuitable for judicial decision. Examples are to be found in authorities where a question arose whether an arbitration award could be enforced against the defendant. An enquiry was made of the relevant government minister whether Kelantan was an independent sovereign state. The secretary of the \state for the Colonies replied that it was, and the House of Lords held that the reply was decisive of the issue.320 The same approach has been adopted in issues such as the extent of territorial waters,321 the diplomatic status of individuals,322and whether a state of war continues to exist.323 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; (d) (Deleted by L.N. 22/ 1965).
319 320

Hoare v Silverlock [1848] 12 Q.B. 624. Duff Development Company. V Government of Kelantan [1924] A.C. 797, HL 321 The Fagernes [1927] P.311 322 Engelke v Musmann[1928] A.C.433. 323 R.v Bottrill, ex parte Kuechenmeister [1947] K.B.41

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(e) the public seal of Kenya; the seals of all the courts of Kenya; and all seals which any person is authorized by any written law to use; (f) the accession to office, names, titles, functions and signatures of public officers, if the fact of their appointment is notified in the Gazette; (g) the existence, title and national flag of every State and Sovereign recognized by the Government; (h) natural and artificial divisions of time, and geographical divisions of the world, and public holidays; (i) the extent of the territories comprised in the Commonwealth; (j) the commencement, continuance and termination of hostilities between Kenya and any other State or body of persons; (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 execution of its process, and also of all advocates and other persons authorized by law to appear or act before it; (l) the rule of the road on land or at sea or in the air; (m) the ordinary course of nature; (n) the meaning of English words; (o) all matters of general or local notoriety; (p) all other matters of which it is directed by any written law to take judicial notice. (2) In all cases within subsection (1), and also on all matters of public history, literature, science or art, the court may resort for its aid to appropriate books or documents of reference. In all matters where the court may take judicial notice as listed under section 60(1) as well as in matters of public history, literature, science or art it may rely on appropriate books or documents as guides. Court proceedings sometimes involve interpretation of language. Parties may not dispute the accuracy of the meaning attributed to such words. They may however, argue that a word is not used in its dictionary meaning in which case a court may seek clarification of that meaning from a dictionary, usually the Oxford English Dictionary. Sometimes the meaning of words are called legislative facts, to indicate that they are facts which a court must decide to arrive at a ruling on a question of law such. Courts may also investigate historical and scientific issues so as to be able to resolve questions of law so that where it was necessary to decide whether certain ecclesiastical practices were contrary to the law of the church, the court held it permissible to consult historical and 119

theological works as an application of the principle that historical works could be used to ascertain ancient facts of a public nature.324 Having regard to subsection (o) allowing court to take judicial notice of matters of general or local notoriety the question begs if it is allowed for judges to use personal knowledge they may have of facts in issue or of evidentiary facts? The answer to this question is not straightforward. First, it would seem that it is acceptable for a judge to take judicial notice of matters of which he has knowledge and which is also within the common knowledge of persons within the locality. It has accordingly been held that a judge acting as an arbitrator in a workmens compensation claim could take into account his knowledge of local wage rates, provided that this knowledge was generally known in the area.325This though does not allow him to take judicial notice if the knowledge is of some specialized matter which he acquired personally and which may not be widespread in the locality. It has also been held that judges may make use of their knowledge of local conditions where these are notorious locally, such as where he had to decide whether a car park was a public or private place.326 Second, judges are allowed to consider specialized knowledge into account in the evaluation of evidence adduced in cases before them so that where the issue was whether the accused had a reasonable excuse for failing to give a blood specimen of blood in a driving under the influence of alcohol case. His case was that he suffered from needle phobia and that he had panicked and suffered a hysterical reaction when a doctor had tried to take a specimen. A doctor who was in the jury observed that such a reaction was genuine. The accused was acquitted and the prosecution appealed where it was stressed that while such specialized knowledge could be used to evaluate evidence, it must never be used a substitute for evidence actually given. A reasonable deduction from the foregoing points is that judges should never be allowed to rely on their specialized knowledge if the matter is not one of common notoriety. (3) If the court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it considers necessary to enable it to do so.
324 325

Read v Bishop of Lincoln [1892] A.C. 644. Reynolds v. Llanelly Associated Tinplate Co. Ltd. [1948] 1 All E.R. 140 326 Clift v.Long [1961] Crim. L. R. 121

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ADMISSIONS 61. No fact need be proved in any civil proceeding which the parties thereto or their agents agree to admit at the hearing, or which before the hearing they agree, by writing under their hands, to admit, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the court may in its discretion require the facts admitted to be proved otherwise than by such admissions.

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