INTRODUCTION TO EVIDENCE LAW

In civil and criminal cases, where there is non-admission of liability or plea of not guilty, the
plaintiff/defendant or prosecution/accused have to prove a variety of facts. In both instances, the
plaintiff/defendant or prosecutor must establish their cases by presenting to the court evidence.
Facts that have to be proved are determined by the substantive law concerned. This in turn
determines the facts in issue and any relevant facts to the facts in issue.

Evidence defined:
Adrian Keane: “information by which facts tend to be proved, and the law of evidence is that
body of legal rules regulating the means by which facts may be proved in courts of law and
tribunals and arbitrations in which the strict rules of evidence apply.”
Section 3(1) of the Evidence Act: “...the means by which an alleged matter of fact, the truth of
which is submitted to investigation, is proved or disproved; and without prejudice to the foregoing
generality, includes statements by accused persons, admissions, and observation by the court in its
judicial capacity.”
- Admissions v confessions = civil v criminal cases

Evidence Law
Evidence Law is concerned with the proof or disproof of facts in court of law.
Rules of evidence act as a guide to the relevance and admissibility of evidence, and the weight to
be given to a particular piece of evidence.
It is an important branch of law in the dispensation of justice and supports other branches of law in
dispute resolution.
Sources:
- The Evidence Act
- Case Law
- Common Law
- Other Acts of Parliament
- Constitution of Kenya:
● Article 35 - Right to access information
● Article 49(1)(d) - Right to a fair trial
● Article 50(2)(j)-(l) - Right to a fair trial
● Article 50(4),(6) - Illegally obtained evidence
- R v Leatham (in contradiction) - states that the manner in which evidence is
acquired is irrelevant

Facts and Types of Facts

Section 3(1) defines fact in an inclusive manner as-
a. any thing, state of things or relation of things,(e.g a time, a person, an item; nature of injury,
being sickly; nature of possession, relationships between people), capable of being perceived
by the senses ; and
 b. any mental condition of which any person is conscious (e.g pain, mental pathology i.e
insanity, intoxication, intention)

Section 3(2) - A fact is proved when, after considering the matters before it, the court believes it
to exist, or considers its existence so probable that a prudent man ought, in the circumstances of
the particular case, to act upon the supposition that it exists.
Section 3(3) - A fact is disproved when, after considering the matters before it, the court either
believes that it does not exist, or considers its non-existence so probable that a prudent man
ought, in the circumstances of the particular case, to act upon the supposition that it does not exist.
Section 3(4) - A fact is not proved when it is neither proved or disproved.
Although as a general rule, all facts must be proved, certain facts need not be proved: judicial
notice, presumptions and formal submissions.

Types of Facts:
a. Facts in issue/Principal facts
These are facts that a claimant must prove to succeed in his/her case; and the defendant must
disprove in order to succeed in a case.
E.g : in a contractual dispute, where D denies the contractual relationship, the principal facts P
must prove are those establishing formation of a contract (the elements of a contract, production
of a signed contract, witnesses to the execution of the contract may testify, receipts and/or
performance [contract through conduct in cases of unwritten contracts], vitiating factors, lapse of
time) between P and D, breach (non-performance i.e non-delivery, non-payment) and the loss
suffered.
In civil matters, facts in issue can be found in the pleadings
In criminal matters, facts in issue can be isolated from the charge sheet or indictment

Requirements:
- Discharging a legal burden
- Discharging the evidential burden - bringing of material evidence

b. Relevant facts/Circumstantial evidence

These are facts which help to prove that a fact in issue exists.
E.g : If the fact in issue is whether Y shot X, an eyewitness would be the best way to prove. However,
if such evidence is unavailable, the fact that after the incident, a policeman found the gun in Y’s car,
Y was seen buying a gun, there’s a missing bullet in Y’s gun that matches the murder weapon, Y was
the last person seen with X, X’s blood on Y’s possessions, etc, would be a relevant fact that assists in
proving the fact in issue.

c. Collateral facts
These are facts that support or corroborate other facts. These include:
(i) Facts regarding the competence of witnesses
(ii) Facts regarding the credibility of a witness
(iii) Preliminary facts: These are the facts relating to the admissibility of evidence
 - E.g the rule that confessions must not be obtained through use of oppression : if an accused
person has been tortured to confess, evidence can be adduced to decide whether that
confession is admissible.

Types of Evidence
a. Oral evidence/Testimony/Direct evidence
It is made on oath in court.
It is offered as evidence of the truth of what is said.
It is normally direct evidence of matters in which the witness has first-hand knowledge/facts
experienced with one of his five senses.
**Witness statements

b. Hearsay evidence
Generally inadmissible
Exceptions: dying admissions, testimony of old people

c. Documentary evidence
Includes maps, plans, graphs, drawings, photographs, discs, tapes, videotapes, films, negatives,
contracts etc
A document may be introduced as evidence of its existence or to prove the truth of its contents or to
prove its condition, in which case it is regarded as real evidence.

● Real evidence - usually a material object produced for inspection

● Circumstantial evidence - common where there is a combination of circumstances, none of
which raise a reasonable conviction unless taken together
● Primary evidence (the best evidence rule) - the original document produced to court
(Section 65)
● Secondary evidence - copies of original documents
RELEVANT AND ADMISSIBLE FACTS

Relevance of Evidence
Relevance is the ability of evidence to prove or disprove some matter requiring proof.
- E.g in Contract Law, these would be facts showing that there’s is an offer or acceptance, etc

Stephen’s Digest of the LOE: “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 proves or renders probable the past, present or future existence or non-existence of the other.”
- E.g in Contract, if the Fact in issue is as to the Existence of a Contract, then evidence such as
capacity and the signing of the contract would be relevant.

DPP v Kilbourne: Lord Simon - “Evidence is relevant if it is logically probative or disprobative of

some matter which requires proof … evidence which makes the matter which requires proof more or
less probable.”

Relevant evidence is one that has probative value.

It is evidence that persuades a court of the probability or possibility of the existence or
non-existence of a fact.
Since the purpose of evidence is to prove or disprove facts, only relevant evidence is allowed in
court. Irrelevant evidence is inadmissible as it adds confusion to the case rather than assist in the
expeditious resolution of dispute.
Relevance of evidence is a question of degree (not of law) determinable by common sense and
experience of the court/tribunal.

Holcombe v Hewson (1810) - The D, in order to rebut the defence that he had previously supplied
bad beer, intended to call publicans to give evidence that he had supplied them with good beer.
Lord Ellenborough - “We cannot here enquire into the quality of different beer furnished to different
persons. The P might deal well with one and not the others. Let him call some of those who frequented
the defendant’s house, and there drank beer which he sent in; or let him give any other evidence of the
quality of his beer.”

Parameters of Relevant Evidence

(Section 5-15)
1. Res gestae (facts forming part of the same transaction)
Facts that are so closely connected with the fact in issue in time, place and circumstances as
to form part of the same transaction - S 6
E.g
- If X is seen fleeing from the scene of a crime (arson) with a jerrican of oil
- If a neighbour hears a victim calling out someone else’s name alluding to the fact
that they are the culprit
● R v Bedingfield : A girl’s throat was slit and thereafter walks out of the house crying out her
boyfriend’s name. However, the court decided that the statement did not form part of res
gestae.
**This decision has been criticised as bad law.

2. Plans and preparatory facts for any fact in issue or relevant fact - S 8(1)
E.g
- Buying something that is used in commission of a crime
- Planning an escape e.g buying plane tickets
- Searching on ways of committing a crime

3. Motive - S 8(1)
Makindi v R (1961): Makindi had previously beaten up a child badly and was imprisoned.
He later beat up the child again. It was decided that his previous assault and imprisonment
was motive.

4. Facts which establish the identity of a person - S 9

E.g
- Fingerprints
- Name
- Handwriting
- Paternity, etc

5. Facts inconsistent with, or affecting probability of other facts - S 9 & 11

If the issue is whether A is guilty, and the circumstances are such that the crime could’ve
been committed by A, B, C or D, every fact that shows that the crime couldn’t have been
committed by anyone but A, or showing that it couldn’t have been committed by B, C or D is
relevant. E.g alibi.

6. Evidence showing opportunity or lack of opportunity

Could show a person was present or absent at the time and place of alleged act
E.g Alibi or Evidence to establish adultery in divorce (e.g cohabitation)

7. Statements and actions referring to common intention - S 10

Acts and declarations of other conspirators and acts done at different times are admissible
against the person prosecuted

8. Facts showing a person’s mental or physical capacity or incapacity to do a particular act

E.g dementia, other mental illnesses, age, drunkenness, physical impairments (e.g missing
limbs)

9. Facts showing the existence of any state of mind - S 14(1)

 E.g Intention, knowledge, good faith, negligence, rashness, ill-will or good-will towards
another, state of body or bodily feeling, etc when the existence of any such state of mind or
body or bodily feeling is in issue or relevant.

10. Similar Fact Evidence is admissible on account of its similarity and relevance to the facts in
issue - S 14(3) & 15
These are previous antecedents that show striking similarity
E.g
R v Smith or any other person who commits a certain offence in a particular way each time

11. Failure to give evidence or call witnesses

In civil cases it may justify the court to draw adverse inferences as to what the facts are
which the first party has withheld.

Admissibility of Evidence
Admissibility relates to whether or not evidence will be received by a court or tribunal for
purposes of determining a dispute
As a matter of law, evidence must be admissible.
To be admissible, evidence must be relevant. Relevant evidence is admissible so long as it is not
excluded by other rules.

Examples of relevant but generally inadmissible evidence

Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, undue delay or needless presentation of cumulative
evidence.
E.g
- SFE may be considered to have a highly prejudicial effect because the accused is unaware
of what he/she is defending themselves against
- A load of evidence on one matter to bring about confusion and delay; or Bringing several
witnesses to testify as to sth that one or two could.

Hearsay evidence is generally inadmissible as the maker of the statement was not under oath and
is not subject to cross-examination.

Character evidence
Generally has a highly prejudicial effect
Good character evidence (of the accused) is allowed in criminal cases, however, it opens him/her up
to have their character challenged
Similar Fact Evidence

Opinion evidence by non-expert

Privileged communication
E.g spousal privilege, advocate-client and other confidential relationships, ‘without prejudice’
meetings or letters, etc

Public policy/interest can be excluded on the basis of:

- National security, good diplomatic relations and international comity
- Information for detection of crime - identity of informers and agent-provocateurs
- Judicial disclosures - calling judges/arbitrators to give evidence of proceedings
- Proper functioning of the public service
- Confidential relationships - e.g doctor-patient, journalist-source, priest-penitent

Illegally obtained evidence

E.g through illegal searches and seizures, breaking into somebody’s house, telephone tapping,
through deception, threats, bribes, inducement or trickery.

Weight of Evidence
The weight of evidence means the cogency or probative worth of the evidence.
It is about the believability, convincing and persuasive power of evidence.

Assessing the weight of evidence is largely a matter of common sense and experience depended
on:
a. Whether the evidence is supported or contradicted by other evidence (inclusive of the
extent of contradiction)
b. Demeanour, plausibility and credibility of witnesses
c. Accuracy and reliability of evidence
A judge must look at the evidence before him and consider if it is credible and reliable.
BURDEN AND STANDARD OF PROOF

Burden of Proof
Burden/onus of proof is the obligation to prove a fact in issue in both civil and criminal cases.
It must be ‘discharged’ or ‘satisfied' if a party is to succeed on the issue in question.
Where there are several facts in issue in a given case, the burden of proof of different issues may be
differently allocated amongst the parties. - Joseph Constantine Steamship Line v Imperial
Smelting Corp Ltd (1942)

Significance of Burden of Proof

1. Party who bears the burden of proof on the first issue will have the right to begin during
trial.
2. 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.
E.g
- In criminal cases, the prosecutor bears the burden of proving the guilt of the accused
without reasonable doubt.
- A party that claims insanity bears the burden of proof
3. Rules on burden and standard of proof are important on appeal when an appeal court has
to decide whether they are correctly applied at trial.
4. Where there is a submission of no case to answer, a judge will need to know the allocation
of the burden of proof in order to rule on the submission.

Types of Burdens of Proof

1. Legal/persuasive/probative/ultimate burden
It is the obligation on a party to prove a fact in issue
It is allocated by law and fixed at the beginning of the case. It does not shift during the trial. (Sawe
v R - 2003)
The general rule in civil cases is ‘he who asserts/alleges must prove’
In criminal cases, the burden of proving the guilt of the accused rests on the prosecution:
- Part of the presumption of innocence
- There is no burden laid on the accused to prove his innocence. It is sufficient for him to raise
a doubt to his guilt.
Woolmington v DPP (1935) : Viscount Sankey LC - “Through the web of the English Criminal Law
one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s
guilt…”
Exceptional cases where the accused bears a burden are:
- Where the accused pleads insanity
- Where statute expressly places a burden upon the accused e.g Section 322 of the Penal
Code on Handling Stolen Goods
- Where a negative averment is within the knowledge of the accused e.g ‘without a driving
licence’ or ‘without lawful authority’ (e.g lack of permits)
 - In civil cases, contractual terms may shift burden
- Where there is a rebuttable presumption of law - once a primary fact is proved or
admitted, (in the absence of further evidence) another fact must be presumed.
Whenever the burden shifts to the accused person, it is discharged on adducing evidence that raises
a modicum of doubt on a balance of probabilities.

2. Evidential Burden/Burden of Production

Burden of adducing evidence to raise an issue for the court’s consideration.
Generally, a party with the legal burden of proof will bear an evidential burden on that issue as well.
In criminal cases, the prosecution not only adduces evidence in support of each ingredient of the
charge, but must also disprove any specific defence raised by the accused.
However, in certain limited cases, the law places a burden on the accused to explain, on a balance of
probabilities, matters which are peculiarly within his own personal knowledge - Section 111 [Civil
Cases - Sections 112 - 119]
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.
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.

Standard of Proof/ Quantum of Proof

It refers to the degree of probability to which facts must be proved to be true
Evidence adduced by a party must be more cogent or convincing than that adduced by the opponent
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.

1. Proof beyond reasonable doubt - criminal cases

Carries a high degree of probability.
It is NOT proof ‘beyond all doubt’ or ‘beyond a shadow of doubt’ - Miller v Minister of Pensions
(1947)
“If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can
be dismissed with the sentence ‘of course it is possible but not in the least probable’ the case is proved
beyond reasonable doubt, but nothing short of that will suffice.”
A reasonable doubt is doubt to which you can give a reason as opposed to a mere fanciful sort of
speculation.

2. Balance of Probabilities/ Preponderance of Probabilities - civil cases

Means ‘more likely than not’ fact exists.
Miller v Minister of Pensions (1947) : Lord Denning defined the standard thus - “It must carry a
reasonable degree of probability, but not so high as 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.”

In certain matters, the standard is higher:

a. Contempt of court in civil matters must be proved beyond reasonable doubt because the
liberty of the contemnor is involved
b. Where there is an allegation of crime in civil cases e.g fraud, the standard is on a balance of
probabilities but the degree of proof is higher - Bater v Bater (1950)
c. In matrimonial cases
- Ginesi v Ginesi (1948); Preston-Jones v Preston-Jones (1951); F v F (1968) : held that
adultery must be proved to the criminal standard.
Other courts have held a high standard of proof is required in matrimonial cases, but not
criminal standards.
- Wangari Mathai v Mwangi Mathai (1980) : a charge of adultery must be proved beyond a
balance of probabilities or mere suspicion and opportunity to commit adultery
The more serious the allegations, and consequences on parties, the ‘surer the judge must be’ -
Hornal v Neuberger Products Ltd (1957)
SIMILAR FACT EVIDENCE
SFE - Evidence of previous or subsequent acts which are similar to the facts in issue or relevant
facts.
General Rule: The SFE rule is described as an exception to the general rule against bad character
evidence [Section 57(1)]; It is therefore admissible provided that its probative value outweighs its
prejudicial effect. - Sections 14 and 15
Section 14 - Facts showing state of mind or feeling
1. Facts showing the existence of any state of mind, such as intention, knowledge, good faith,
negligence, rashness, ill-will or good-will towards any particular person, or showing the
existence of any state of body or bodily feeling, are relevant, when the existence of any such
state of mind or body or bodily feeling is in issue or relevant.
2. A fact relevant within the meaning of subsection (1) of this section as showing the existence
of a state of mind must show that the state of mind exists, not generally, but in reference to
the particular matter in question.
3. Where, upon the trial of a person accused of an offence, the previous commission by the
accused of an offence is relevant within the meaning of subsection (1) of this section, the
previous conviction of such person is also relevant.
Section 15 - Facts showing system
When there is a question whether an act was accidental or intentional, or done with a particular
knowledge or intention, the fact that such act formed part of a series of similar occurrences, in each of
which the person doing the act was concerned, is relevant.
R v Percy (2020)

Exception:
SFE of general propensity, disposition or bad character that only goes to prove that the accused is
the “type of person” to commit the offence is always inadmissible.
Similarly it is inadmissible when tendered to “establish character, as circumstantial proof of the
accused’s conduct”.
SFE of previous prosecutions on similar facts is inadmissible unless a conviction was secured
[Section 57(1)(a)]
R v Cokar (1960):
The case involved the trial of an appellant for entering a dwelling house by night with the
intent to steal. The appellant admitted to climbing in through an open window of the house
at midnight, where he was found shortly afterwards by the occupant asleep in a chair before
the fire. Defence - The appellant had entered for warmth and sleep. Despite objection, the
prosecution was permitted to cross-examine the appellant as to a previous occurrence when
he had been charged for burglary but was acquitted.
He was convicted and sentenced to 18 months’ imprisonment.
The Court of Appeal quashed that conviction, stating that the cross-examination was
improper under Section 1 of the English Criminal Evidence Act (Equivalent to Section
57(1)(a) of the Kenyan E.A)

The question usually posed is whether such evidence can be adduced to lead to a conclusion that a
certain person committed a certain offence:
 - Such evidence may be called to prove commission of an offence charged - admissible under
limited circumstances
- However, it has a high potential for illegitimate use
Especially where its prejudicial effect outweighs the probative value of such evidence or if
its use may conflict with the general rule on character evidence

Human beings are usually unfavourably impressed by accused persons shown to have a high
propensity for criminal activities or other forms of misadventure. This area of law is thus highly
technical.

Makin & another v AG for New South Wales (1894)

R v Makin & Makin - John and Sarah Makin were baby farmers and a 1 ½ month old child died
within two days of being given to them. They were charged with murdering the child and burying it
in their backyard. During the trial, evidence of twelve other babies found buried in their backyards
of their previous residences was offered as evidence. They were convicted, and it was held that the
similar fact evidence was properly admitted. The accused(s) appealed.
Lord Herschell: “It is undoubtedly not competent for the prosecution to adduce evidence tending to
show that the accused has been guilty of criminal acts other than those covered by the indictment for
purposes of leading to the conclusion that the accused is a person likely, from his criminal conduct
or character, to have committed the offence for which he is being tried.
On the other hand, the mere fact that the evidence adduced tends to show the commission of other
crimes does not render it inadmissible if it be relevant to an issue before the jury; and it may be so
relevant if it bears upon the question whether designed or accidental, or to rebut a defence which
would other be open to the accused.”

John Makindi v R (1961):

Sir Kenneth P.: “The provisions which govern the admissibility of evidence of similar offences are well
known. The leading authority is Makin v AG where Lord Herschell (pp. 65) enunciated two
propositions:
a. You cannot lead similar fact evidence merely to show the accused’s disposition or inclination to
commit an offence.
b. Evidence proving commission of similar offences is not inadmissible if it is relevant to an issue
before the jury”

For a long time, the statement by Lord Herschell was taken to be a rule of exclusion i.e evidence of
previous or subsequent similar offences was inadmissible unless an accused person expressly or
impliedly raised a defence of accident or such other defence open to him. This was not until the
decision in Harris v DPP (1952) -A policeman was accused of 8 counts of office breaking and
stealing. He was acquitted on 7 counts but convicted on the 8th.
The appellant was charged on an indictment containing 8 counts charging him with
office-breaking and larceny on a series of dates in May, June and July 1951, by breaking into
and entering the premises of a company of fruit and vegetable merchants situated in an
enclosed and extensive Bradford market and stealing therefrom various sums of money. In
 every case the money stolen was only a part of the amount that the thief, whoever he was,
might have taken; in every case, the same means of access was used; and in every case the
theft occurred in a period during part of which the Appellant was on duty in uniform, in the
course of patrolling the market, and apparently at an hour when most of the gates of the
market were closed to the general public.
But on the seven of these occasions, there was no further evidence to associate the
appellants specifically with the thieves. On the 8th occasion, however, which was between 6
and 7 a.m. on Sunday morning the 22nd July, the appellant, who was on solitary duty in the
market as before, was found to be just outside the premises by two detectives who had
rushed to the spot on hearing , in the quarters where they were secretly waiting, the ringing
of a bell actuated, without the knowledge of the appellant, by the thief’s weight when he
stepped on the floor of the shop.
On this occasion, marked money which had been placed in the till had been abstracted, but it
was not found on the appellant when he was arrested. It had been concealed in a coal-bin,
not too far from where he was when he was first seen. The two detectives were well known
to the appellant and might be expected to be at once recognised by him; but when they
entered the market (one by climbing the gate, and the other by opening it with some
difficulty) though they were in the appellant’s view at no great distance, he contended that
he had not recognised them at first as members of the Police Force and so had not moved to
join them. He said he thought they were market-men entering the area for some innocent
purpose. By the time the two detectives entered the premises he had disappeared from view
and a little later came running up to join them. The time which elapsed between their first
sight of him and his return was just sufficient to enable him to have reached the coal-bin and
come back.
The House of Lords held that the prosecution may adduce all proper evidence which tends to prove
the charge without withholding any evidence until after the accused has set up a defence which calls
for a rebuttal.

DPP v Christie (1924)- Lord Molton stated that the judge in a given case has discretion to intimate
to the prosecution that evidence of similar acts should not be pressed because its probative
prejudicial effect ‘would be out of proportion to its true evidential value’.
Viscount Simmons: “It is, I think, an error to try to draw up a closed list of the sort of cases in which
similar fact evidence operates. Such list only provides for the instances of its general application.”
It was further clarified that the prosecution need not wait for the accused person to raise a defence
either of, among others, mistake and accident before tendering evidence of similar facts. The
prosecution, he said, was entitled to adduce all evidence which could go to prove the charge
regardless of whether it was SFE or not.

Sarkar’s Law of Evidence points out that in the determination of relevancy of SFE, two things
ought to be considered:
a. A question must be raised whether an act by the accused was intentional or accidental,
or was done with particular knowledge or intention
SFE is admissible to rebut (even in anticipation) a defence of accident, mistake or other innocent
condition of the mind.
The judge however has the discretion to exclude such evidence if it merely tends to deepen
suspicion against an accused person and its prejudicial effect outweighs its probative value.

b. Section 15 is not applicable unless it is sought to be proved that the act forms part of a
series of similar occurrences

N/B The provisions here are applicable when the prosecution is leading its case or the defendant
attempts to put up a line of defence, before a conviction
After a conviction, it is still open for the prosecution to fall back on an accused person’s previous
criminal record for sentencing purposes.
This is so relevant in these days of planned crime such as serial killers, armed gang robbery and
terrorism. Such organised and sophisticated criminals follow a certain defined pattern.

Whether evidence is relevant or admissible or whether in the mind of the judge its prejudicial effect
outweighs its probative value is a matter of common sense and experience.
A judge should look for a striking similarity or unity between the issue to be proved and the account
of the series of previous similar criminal occurrences before making a decision one way or the other.
**One area where this is useful is in the area of sexual offences.

R v Scarrott (1976)
Lord Scarman: “... such probative value is not provided by mere repetition of similar facts. There has to
be some features in the evidence sought to be adduced which provide an underlying link. The evidence
of such a link is not to be inferred from mere similarity of facts which are themselves so commonplace,
that they can provide no sure ground for saying that they point to the commission by the accused of the
offence under consideration.”
** R v Barrington (1981); R v P (1991); R v Tricoglus (1976)

Circumstances under which SFE may be used

1. Absence of causal connection, that is, accident
In Making v AG, there was no evidence of who had buried the child in the backyard of the accused
person’s home, and there was no causal link.
There was evidence though that the accused person had been adopting several other children who
had disappeared in the same manner. Excavations done in the garden revealed other skeletons of
young children adopted by the defendant under similar circumstances.
Qn: Could the prosecution tender evidence of these other discoveries to show a causal link by the
way the other deaths and the offence charged?
Privy Council - The prosecution could tender the evidence of the other discoveries to show that the
offence committed was part of a series of similar offences perpetrated by the accused, and further,
to shut out accident as a possible line of defence for the accused.
R v Smith
Mrs Smith was found drowned in her bathtub.
The only evidence available was the fact that a few months prior to her death, Mr Smith had insured
her life in his favour. He told his personal doctor that his wife was epileptic and a few months later,
his wife’s dead body was found floating in the bathtub. No evidence of his involvement could be
found, ie, no causal connection.
The prosecution adduced evidence that after the death of Mrs Smith, the accused married two other
women, insured them in his favour, and made the same epileptic representation to the doctor - only
for them to be found dead in the bathtub.
He was convicted.
On appeal, he argued that the evidence of subsequent occurrences was inadmissible.
Held: The evidence was admissible as evidence of a series of similar offences. It could be an
incomprehensible coincidence that in each case someone collapsed in a bathtub, and in each case
the accused gained something.

2. Plea of absence of intention

Here the accused pleaded absence of intention to commit it. If it can be shown that the accused has
been involved in a series of similar occurrences, it may be inferred that he had a particular state of
mind i.e intention to commit the offence.

Achieng v R (1972)
The accused was a PS who had been given some imprest money but failed to account for it. He was
charged with theft by servant for stealing a sum of Ksh. 76000 from that account. His defence was
that he had no intention of defrauding the treasury of the money and that he intended to account for
it.
The prosecution adduced evidence to the effect that on 6 previous occasions, he had taken money
from his imprest and never accounted for it.
Held: Evidence of previous occurrences was admissible because it rebutted his defence of lack of
intention to commit the alleged theft.

R v Mortimer (1936)
The accused knocked down a female cyclist. There was evidence adduced that he had assaulted two
other women.
Held: The evidence of previous incidents was admissible to show that he intended what he had
done and also to negative the defence of absence of intention/accident.

3. Involuntariness
Where an accused person engages in a series of acts of distinct similarity, it is possible to rebut a
defence that he was acting out of a state of automatism.
Automatism - Involuntary movements of the body and limbs of a person. It is confined to acts done
while unconscious or due to spasms, reflex actions and convulsions. It includes sleepwalking and
epileptic seizures. It denotes lack of mens rea.
If the acts involve a pattern of behaviour on the accused person, this evidence may suffice to
establish guilt.

4. Lack of knowledge
A person may raise the defence of lack of knowledge that the act allegedly done was illegal.
Where it is shown in evidence that he was engaged in a series of previous or subsequent similar
acts, evidence of those acts may be relevant to rebut the defence of lack of knowledge or intention -
Section 15.

R v Francis (1874)
Francis was charged with attempting to obtain money from a pawnbroker by pretending to have a
diamond ring to sell. In his defence, he said that he had no knowledge that the ring he was
purporting to sell was not a diamond ring and that it was worthless.
Evidence called showed that he had previously attempted to pledge the ring to other pawnbrokers
who had discarded it as valueless. He therefore knew or ought to have known that the ring was
worthless.
Q: Whether the evidence of previous transactions with these other pawnbrokers was relevant
Held: SFE was admissible to show a series of similar occurrences and negative his plea of lack of
knowledge

R v Bond (1906)
A doctor had operated on a pregnant woman with the intent of terminating the pregnancy. He raised
a defence that he was carrying out a lawful medical examination. The prosecution brought a witness
to give evidence that he had operated on her nine months before when she was pregnant and
terminated her pregnancy and said that he had ‘put dozens of girls right’.
The court considered the rule excluding evidence of the defendant's bad character.
Kennedy J: “The general rule cannot be applied where the facts which constitute distinct offences are
at the same time part of the transaction which is the subject of the indictment.”

R v Armstrong (1922)
The accused murdered his wife using arsenic poisoning. He claimed that the poison was used to kill
weeds as a farming mechanism. He later tried to murder another man using it.
Held: Evidence was admissible to prove that he knew the effect of administering the arsenic poison
Lord Herwart: “...The fact that Armstrong was subsequently found not merely in possession of but
actually using for a similar deadly purpose, the very poison that caused the death of his wife, was
evidence from which the jury might infer that the poison was not in his possession for an innocent
purpose.”
 5. Admissibility of SFE to show the identity of the accused
The doctrine of SFE is not restricted to the provisions of Section 15 only.
It may be adduced and admitted under Section 9 in order to show the identity of the accused
person.
Section 9 - Explanatory or introductory facts, etc
Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an
inference suggested by such a fact, or which establish the identity of any thing or person whose
identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or
which show the relation of parties by whom any such fact was transacted, are relevant in so far as
they are necessary for that purpose.
Example:
If X did acts A, B and C and an unknown person did a similar act D within the same area, it may be
inferred that X was the doer of D. Particularly so if act D is done with such frequency or peculiarity,
that there was probably any one person capable of doing the act complained of at that time and
place.

R v Straffen (1952)
The accused was committed to Broadmoor hospital having been found unfit to plead to two charges
of killing small girls without molesting them sexually and then leaving their bodies unconcealed. He
escaped from the hospital and while still in the vicinity thereof, a small girl was killed without being
sexually molested and her body left lying unconcealed by the roadside. On rearrest, the accused
admitted to having seen the little girl but denied having killed her.
The prosecution tendered evidence that previously the accused had been charged with the offence
of strangling two other little girls in the same manner for no reason and left their bodies
unconcealed .
Held: Evidence of previous similar acts committed by the accused admissible to show that the
perpetrator had an abnormal propensity; which could be used to identify that the accused was
concerned with the death of the little girl.

Thompson v R (1918)
He was accused of gross indecency on some boys. He had given them directions to a street outside a
public toilet for further acts. Evidence tendered showed that he was gay.
Held: SFE admissible to show the identity of the accused.

Paul Ekai v R
Ekai was accused of murdering Joy Adamson, a famous conservationist. On defence he claimed that
he was in Isiolo that night. It involved the breaking of 3 large trunks and stealing cash and other
items, then escaping using animal closure. Paul was found with clothes stolen from the camp on the
previous occasion, and could not explain.
He was presumed to be a thief and convicted of murder and stealing.
Reconciling the use of SFE and the rule against evidence of propensity
The two are irreconcilable.
A rider may however be imposed to the effect that if a person has a propensity so distinct as to
afford a reliable means of identification, it may be used to identify him as the doer of the act which
bears hallmark of the special propensity in question.

Boardman v DPP (1974)

Lord Gross: “...the prosecution is not as a general rule allowed to adduce evidence that the defendant
has done acts other than those with which he is charged in order to show that he is the sort of person
who would be likely to have committed the offence in question… circumstances, however, may arise in
which evidence is so relevant that to exclude it, would be an affront to common sense… The question
must always be whether the SFE taken together with the other evidence, would do no more than to
raise or strengthen suspicion that the defendant committed the offence with which he is charged or
would point so strongly to his guilt that only an ultra-cautious jury, if they accepted is a true, would
acquit in the face of it … in the end, the question must be one of degree.”

SFE is admissible when it is of strong probative force and is highly relevant to the circumstances, to
establish the commission of an act, identify the perpetrator of a crime, or the state of mind in which
it was done or to defeat the defence of accident, mistake or lack of knowledge.
Whenever such evidence is tendered under Section 15, it must be shown to be part of a series of
other similar facts or occurrences whose similarity cannot be ignored by the court.

Section 16 deals with facts showing course of business.

Section 16 - Facts showing course of business
When there is a question whether a particular act was done, the existence of any course of business,
according to which it naturally would have been done, is relevant.
Office practice provides the best example of evidence showing that a certain act has been done,
when the doing of that particular act comes into question.
It is inferred that the uniformity of the general course was followed in the particular case, once you
show a course of business - circumstantial evidence, showing that the ‘state of things’ under/ in
which a certain act was committed.

Sarkar J (Law of Evidence pp.175): “In well-established offices or firms, books are kept or business is
conducted on such settled lines and principles that when the doing of a particular act comes in
question, it may be reasonably inferred that the uniformity of the general course was followed in the
particular case. When the course of business usually followed is proved, the probability is that there is
no departure from the common course of business in the particular case. In case of public offices like
the post offices, where work is carried on with almost mechanical regularity, the probability becomes
stronger that the letter has been dispatched in due course or reached its destination.”

The object of a party in any proceedings is to persuade the court of the existence of certain facts and
the applicability of certain rules of law and of evidence to those facts.
The applicability of any rule of law is a question of law. However, the existence of certain facts is
determined by the adduced evidence.
Such evidence may take any of two major forms:
a. Direct evidence of the facts in issue
b. Circumstantial evidence of the facts from which inferences as to the existence or
nonexistence thereof may be drawn - Section 16.

Civil v Criminal Cases - Should the approach of SFE be the same?

Mood Music Publishing Co Ltd v De Wolfe Ltd (1976)
The Plaintiffs were owners of the copyright in a musical work called ‘Sogno Nostalgico’. They alleged
that the defendants had infringed such copyright by supplying for broadcasting a work entitled ‘Girl
in the Dark’. The plaintiff were permitted to adduce evidence to show that on the other occasion, the
defendants had reproduced works subject to copyright. The defendants appealed.
C.O.A held that in civil cases, courts will admit similar facts if it is logically probative i.e logically
relevant in determining the matter which is in issue - Provided that it is not oppressive or unfair to
the other side. Further, provided the other side has a fair notice of it and is able to deal with it.
It went ahead to hold that concerning the issue in dispute, it is relevant to know that there are other
cases of musical works which are undoubtedly the subject of copyright but that the defendants have
nevertheless produced musical works bearing resemblance to them.
RES GESTAE
The term itself does not appear in the Evidence Act, but the underlying English law meaning is to be
found under Sections 6-9 & 14.
Section 6 - Facts forming part of the same transaction
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.
‘Res gestae’ simply means a transaction.
Section 6 refers to the facts which form part of the ‘res gestae’, which unlike most of the rules of
evidence is inclusionary and not exclusionary. Under it, evidence may be received even if that
evidence offends the rule against hearsay, the opinion evidence rule, among others.
Under E.L.C., acts, declarations and circumstances constituting, accompanying or explaining a fact or
transaction in issue are said to form part of the ‘res gestae’ and evidence and therefore admissible.

According to Adriane Keane (pp. 285), the classic formulation of the doctrine under the
inclusionary common law doctrine is as follows:
“A fact or opinion which is so closely associated in time, place and circumstances with some act or
event in issue, is itself admissible in evidence.”

Gilmer's (The Law Dictionary - pp. 288) defines’ res gestae’ as “all of the things done, including
words spoken, in the course of a transaction or event.”

According to Phipson (The Modern Law of Evidence - pp. 255), acts, declarations, and incidents
which are relevant to the fact in issue are admissible in evidence.

Justification:
It sheds light upon the act or event in issue
In its absence and taken solely and exclusively, the transaction in question may not be fully or truly
understood and may even appear to be meaningless, inexplicable and unintelligible.
The importance of the doctrine is its provisions for the admissibility of statements related to the
performance, occurrence or existence of some fact, event, or state of affairs which is in issue.
Such statements may be received by way of exception to the hearsay rule.
Prof Cross (Cross & Tapper Evidence) has usefully subdivided the doctrine into four discrete
rubrics for ease of appreciation of this concept.

1. Statements made by observers or participants in an event

Generally, statements made by participants in an event are admissible in evidence since they were
present when the event took place.
An exception arises in cases where the statement was made after the event was concluded yet it is
to be relied upon.

R v Bedingfield (1879)
The accused was charged with the murder of a young girl (girlfriend) though the accused claimed
that the girl had committed suicide. The girl was living with her boyfriend until the relationship
turned sour, and the boyfriend allegedly cut her throat. She managed to run out even with a cut
throat and managed to say, “See what Harry (Bedingfield) has done to me.” She then collapsed and
died.
Question: Whether this statement could be admitted in evidence
LJ Cockburn: It could not be admitted as it was not part of the transaction because it was said after
the transaction (cutting of the throat) was all over.

**Criticism to the Bedingfield decision

R v Ratten: Lord Wilberforce heavily criticised the law in Bedingfield and said that it was an
illustration of evidence that ought to have been admitted.
Under Section 33-35 of the Evidence Act, the girl’s statement would have been admitted.
Section 33 - Statements by deceased persons etc
Statements, written or oral or electronically recorded, of admissible facts made by a person who is dead, or
who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be
procured, or whose attendance cannot be procured, without an amount of delay or expense which in the
circumstances of the case appears to the court unreasonable, are themselves admissible in the following
cases—
a. relating to the cause of death
when the statement is made by a person as to the cause of his death, or as to any of the circumstances
of the transaction which resulted in his death, in cases in which the cause of that person’s death
comes into question. Such statements are admissible whether the person who made them was or was
not, at the time when they were made, under expectation of death, and whatever may be the nature of
the proceeding in which the cause of his death comes into question;

R v Ramadhani Ishmael (1950)

In this case, the accused was charged with the rape of a victim, a young girl who was living with her
parents and was allegedly raped by the accused. After the rape incident, she unlocked the door and
ran over to her parents’ house, a few paces away from the accused’s house. She came back with her
dad, and while pointing to the accused said, “Daddy, this is the Bwana.”
Question: Whether he statement constituted part of the transaction
Held: The transaction here was rape, which was already finished by the time she went to call her
father, thus the statement was not part of the transaction. The court observed that when it comes to
‘res gestae’ minutes are of utmost importance. **

Tepper v R (1952)
A fire broke out at a store belonging to Mrs. Raiten. As the house was burning, a lady bystander was
heard asking somebody who looked like the accused some minutes later, “Your house is burning and
you are running away?”
Question: Whether the statement was part of the transaction as the fact in issue (arson)
Held: It was part of the transaction
The basis of admissibility of such spontaneous statements made by onlookers or participants in an
event is that they are part of ‘res gestae’ as an exception to the hearsay rule and as evidence of the
truth of the statement(s).

✅
The privy council in R v Ratten described the danger of concentrating unduly on the close
association of facts in terms of time in determining whether a fact is ‘res gestae’.
It ventured that a court should ask itself whether the fact or statement was made during a time of
involvement, excitement or pressure when there was no time for inter alia contrivance or
concoction.
In the case, the accused was charged of murdering his wife using a gun. He stated in his defence that
he was cleaning his gun and it accidentally went off fatally injuring his spouse. A phone call was
made by the witness, to have the police called.
The evidence was admitted as ‘res gestae’

Bedingfield and Ramadhani Ishmael constitute bad law in that they are conservative in their view of
what formed part of the transaction.

‘Res Gestae’ in civil cases

Evidence forming part of ‘res gestae’ is also admissible in civil cases.
Milne v Leicester: Pollock C.B:
“It is difficult not to perceive that the courts, so far as they can, are disposed to receive evidence
whatever can throw any light on the matter in issue, and advance the search after truth. No doubt, for
that reason, in the case of an exclamation by anyone in a crowd, when an accident occurs, and the
conduct of a particular person in question, it may be asked whether someone did not call out ‘shame’,
for it is part of the ‘res gestae’. The exclamation may be the result of prejudice whether it did not
proceed in the ordinary course of events, or whether any reliance can be placed upon it.”

2. Statements made concerning the performers of an act

These statements are admissible and must be statements made explaining the fact in issue or a
relevant fact. [R v McCay (1991)]

R v John Makindi (1961)

The accused was charged with the murder of a boy over whom he stood in loco parentis (foster
father). In his defence, the accused averred that the deceased was epileptic and that the seizure had
caused the injuries to the boy’s head. Medical evidence showed that the boy had died due to severe
bleeding in the head and a doctor testified that there were blood clots in the boy’s head which had
opened causing a lot of blood to flow from the boy’s head occasioning his death.
The prosecution tendered evidence to show that the accused had previously beaten up the boy and
had previously been convicted and imprisoned for beating up the boy. He had threatened the boy
with further beatings on account of having been convicted.
Question: Whether evidence of previous beating was admissible
Held: The evidence was admissible in the circumstances to show that the accused had a motive to
avenge for his previous imprisonment. It was also admissible as a fact leading to the bleeding and
ultimate death (i.e the cumulative effect of previous beatings)

3. Statements made concerning the maker’s state of mind or emotion

Thomas v Connel (1838)
The plaintiff filed a suit against the defendant for recovery of money paid to the defendant by
Cheethan on grounds of fraudulent preference. In order to prove the case, the plaintiff needed to
prove that at or before the time of the disputed payment, Cheetham was both insolvent in fact and
knew that he was insolvent. Statement made by Cheetham indicating knowledge of his insolvency
was admitted in evidence.
Held: Evidence of the statement is admissible to prove his fact at the time when the payment was
made.

R v Moghal

R v Premji Kurji (1940)

The accused was charged for murder. The deceased had been killed with a dagger and there was
evidence that the accused had been found standing over the deceased’s body with a dagger dripping
with blood. The prosecution adduced evidence that a few minutes before the accused had been seen
accusing the deceased’s brother with a dagger and he had uttered words to the effect that, “I have
finished with you, I am going to deal with your brother.”
Question: Was the statement admissible as forming part of the same transaction as the act of
murder?
Held: They were part of the same transaction because when two acts of an accused person are so
interwoven as to form part of the same transaction, it is not proper to shut out evidence of one of
the acts even though it may involve introducing evidence of the commission of another offence.

4. Statements made concerning the maker’s physical sensation

These statements of contemporaneous physical sensation experienced by the person, are
admissible as the evidence of existence of that sensation, if indeed the existence thereof is in issue
or relevant before the court.
Aveson v Lord Kinniard (1805)
The plaintiff sued the defendant’s insurance company on a life policy insurance. The defendant had
insured the life of the plaintiff's wife on the basis of a warranty that she was in good health. The
policy provided for payment of benefits within three months of her death. The defendant breached
payment on the basis that she was not in good health.
On trial, an intimate acquaintance of the plaintiff’s wife was called by the defendant and testified as
to having called at the plaintiffs home on 22nd November 1802, where the plaintiff’s wife informed
her of her poor health. The deceased also mentioned that the plaintiff had initiated to insure her life
for his benefit as well as the fear that she would not live long enough for the 10 day waiting period
for the insurance policy to come into force. The plaintiff objected but his objection was overruled,
and the jury entered a verdict for the defendant.
On application to set aside the verdict and the discretion of the court, it was held that the evidence
was admissible to show the opinion of the plaintiff’s wife on the ill-state of her health at the time of
effectuating the policy.

5. Other instances
Where a person is accused of a serious offence, which accusation a reasonable man will vehemently
oppose to protect his innocence, but the accused keeps silent, this silence is part of ‘res gestae’ and
is admissible under Section 6 & 7 of the Evidence Act to form the basis of the inference of guilt.
Section 7 - Facts causing or caused by other facts
“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.”

Gilbert v Great Western Railway Co (1910)

The accused was carrying beef from a lift to a stall in the marketplace. The beef began to slip. Trying
to keep it on his shoulder, he caused an injury on his left lung. That evening he complained to his
wife of pain in the side of the head. He later died.
The matter was ruled against his widowed wife. On appeal, Mrs Gilbey’s statements were rejected.
Held: The statement made by the deceased to his wife of his sensation at the time about the pain at
the side of his head would be admissible to prove the existence of those sensations but not as
evidence of the facts deposed to.

Conclusion
Acts forming part of the transaction e.g if A is accused of murder of B by beating him, whatever is
done by A or a bystander at the beating, shortly before, or after, forms part of the transaction and is
a relevant fact under the doctrine of ‘res gestae’
N.B: The word ‘transaction’ as used here refers to a group of facts, so connected together as to be
referred to by a single legal term such as a ‘crime’, ‘contract’ or ‘tort’, not in the business or
commercial law sense of it.
HEARSAY EVIDENCE
These are out of court statements (oral, written or by conduct) when offered in court as the truth of
what is asserted (by a person who did not perceive them).
General Rule : Hearsay evidence is inadmissible.

Exclusionary Nature of Hearsay Evidence

R v Bond (1906)
A doctor had operated on a pregnant woman with the intent of terminating the pregnancy. He raised
a defence that he was carrying out a lawful medical examination. The prosecution brought a witness
to give evidence that he had operated on her nine months before when she was pregnant and
terminated her pregnancy and said that he had ‘put dozens of girls right’.
Darling J: “Our law doubtedly excludes evidence of many matters which anyone in his own daily affairs
… would regard as important in coming to a decision.”
It is one of the most complex and most confusing of the exclusionary rules of evidence.
Myers v DPP (1965): Lord Reid: It is difficult to make any general statement about the law of
hearsay which is entirely accurate.

Rationale for Exclusion of Hearsay Evidence

Teper v R (1952) - Lord Normand
It is not the best evidence. It is not delivered on oath. The truthfulness and accuracy of the person
whose statements are spoken by another witness cannot be tested by cross-examination and the light
to which his/her demeanour would throw on his/her testimony is lost.

R v Blastland (1985) - Lord Bridge

Difficult for the jury to assess what weight, if any, to place on the evidence untested by
cross-examination.

Murphy (Hearsay: The Road to Reform)

There is a high probability of distortion of evidence while repeating what someone else has said. The
jury may be unable to evaluate hearsay evidence in an appropriate way. The danger of prejudice
resulting from the absence of a chance to cross-examine.

How to Spot Hearsay Evidence

1. Determine if the witness is repeating a statement made out of court by another person or
party not in court

❌
2. Determine the purpose for which that out-of-court statement is being repeated:

✅
a. To establish the truth of its contents; or
b. To show that a statement was made
Subramanium v DPP (1956)
“It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is
asserted. It is not hearsay but rather admissible when it is proposed to establish, not the truth of the
statement, but the fact that it was made.”
Rule Against Hearsay
Section 63 : Oral evidence must be direct
1. ...
2. “For the purposes of subsection (1) of this section, "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;”
…

Scope of Hearsay
a. Oral statements
Sparks v R (1964)
Teper v R (1952)

b. Written Statements and dispositions

Myers v DPP (1965)
Bernard Kibor Kitur v Alfred Kiptoo Keter & another (2018)
Presidential Election Petition E005, E001, E002, E004, E007, & E008 of 2022 (Consolidated)

c. Statements made by conduct e.g gestures & signs

Chandra-Sekera (alias Alisandiri) v R (1937)

d. Express and Implied Statements

Teper v R (1952)
Wright v Doe de Tatham (1837)

e. Newspaper Cuttings
IEBC v NASA & 6 others (2017)
Para 41-45

Exceptions to the rule against hearsay

Prof. Peter Murphy: “After years of persuasion, cajoling ad seduction, one of Common law’s most
modest vestal virgins is about to surrender her virtue”

R v Beddingfield
Rationale to the exceptions:
The rule against hearsay has over the years operated to exclude highly cogent evidence

Statutory exceptions to the rule against hearsay evidence

Part IV of the Evidence Act - Statements by Persons who cannot be called as witnesses
Section 33 - Statements, written or oral or electronically recorded, 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 circumstances of the case appears to the court unreasonable,
are themselves admissible in the following cases —

(a) Relating to his cause of death

R v Woodcork (1789)
R v John Ng’ang’a Njeri (2018)
Dickson Mbeya Marende (alias Dickie) & another v Republic (2017) - para 25-26
Requirements:
1. The maker is dead
2. The statemet relates to the cause of his/her death
3. The cause of the person’s death is in question
4. The statement is proximate (related)
5. The statement must be complete
6. The statement can be corroborated by other evidence

(b) Made in the ordinary course of business

(c) Against the interest of the maker

(d) An opinion as to the public right or custom

(e) Relating to existence of a 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

Section 34 - 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 purposes of
proving 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; and where, in the case of a subsequent
proceeding—
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.

Statements forming part of ‘res gestae’/same transaction - statements so closely intertwined with
events in issue as to amount to art of what was going on - Section 6
Ratten v R
Beddingfield v R

Statements in public documents - Section 38

Sturla v Freccia - M - father; B - daughter. M passed on in 1803 and the property passed to B who
then passed on the property intestate. Other people wanted a share in B's property, claiming
relation to M. M had been an interviewee in front of a committee. The record showed where and
when M was born. The other people tried to show that they were born in the same place at about
the same time.
The court held that the evidence was inadmissible as the role of the committee wasn’t to assess the
birth and family of M and thus that wasn’t the best evidence.
Wilton & Co v Phillips - “A public document coming from the proper place or certified copy of it is
sufficient proof of every particular stated in it.”
Limitations - cause of death in a death certificate
Death certificate was inadmissible evidence of cause of death which can sufficiently be
proven by other evidence - Bird v Keep

***Features of Admissible Public Documents [Sturla v Freccia (1880)]

Public duty to inquire and record
Public matter
Retention duration: temporary or permanent
Public inspection
Liley v Petit - false statement regarding paternity of child.
Adduced regimental records of the army’s movement. - Inadmissible.

Confessions are generally admissible - Section 25A

R v Warickshall (1783)
“A confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so
questionable a shape when it is to be considered as the evidence of guilt that no credit ought to be
given to it; and therefore, it is rejected.”

R v Baldry (1852)
“By the law of England, in order to render a confession admissible in evidence, it must be perfectly
voluntary and there is no doubt that any inducement in the nature of a promise or a threat held out by
a person in authority vitiates a confession.”

Reforms to the Rule against Hearsay

*See South Africa Evidence Act
Admission of hearsay is discretionary
It is not admissible unless:
- Each party against whom the evidence is to be adduced agrees to its admission
- Court having regard to the nature of proceedings, evidence, purpose of tendering evidence,
probative value, prejudice etc is of the opinion that such evidence should be admitted in the
interests of justice
OPINION EVIDENCE

Nature of Opinion Evidence

Part IX of the Evidence Act: Sections 48-54, 63(2)(d) & 33(d)
Witnesses speak on facts, they are not to draw inferences from facts (opinion); An opinion is
essentially a sort of a conclusion/inference from facts.
An opinion not based on evidence is worthless - Section 54. **

Section 33(d) - An opinion as to public right or custom

… 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.

Section 63 - Oral Evidence

1. Oral evidence must in all cases be direct evidence.
2. For the purposes of subsection (1) of this section, "direct evidence" means —
(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.

General Rule
Opinion evidence is inadmissible.
A witness may only speak on facts which he personally perceived, not of inferences drawn from
those facts. Examples:
- In a theft case, a witness can testify that he saw A do something with the property in
question, BUT NOT to testify that he thought the accused’s behaviour to be dishonest.
- In a personal injury case, a witness can describe the manner of A’s driving, BUT NOT to say
that in his view the accused’s negligence was the cause of the accident.
Rationale for exclusion:
1. When its reception would not assist and might mislead the court
2. When its admission usurps the role of the court
Exceptions to general rule
a. Evidence of an appropriately qualified expert
Such evidence is admissible where drawing of certain inferences calls for expertise which the court
does not possess.
b. Evidence of a non-expert witness / lay person
Admissible as a way of conveying facts that they have personally perceived e.g an ID parade
c. Canine Evidence
 A. Expert Evidence
Section 48 - Opinions of experts:
“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 fingerprint or other impressions.”
** customary law as well

Folkes v Chadd (1782)

If scientific (medicine, chemistry, engineering), technical (construction, handwriting, IT, art, vehicles,
electrical, plumbing) or specialised knowledge will assist the court to understand other evidence
adduced in a case, or help it to determine facts in issue, a witness who is deemed as an expert may
provide evidence in the form of an opinion, provided it is within his field of competence.

An expert is a witness who is considered, by the court, to be ‘peritus’ or specially knowledgeable

within a certain field.

Rules governing admissibility of expert opinion

a. Does the court need assistance on some matter?
R v Turner (1975)
Lawton LJ - “An expert opinion is admissible to furnish the court with scientific information which is
likely to be outside the experience and knowledge of a judge or jury. If on the proven facts the judge or
jury can form their own conclusions without help, then the opinion of an expert is unnecessary.”
- “Jurors do not need psychiatrists to tell them how ordinary folks who are not suffering from
any mental illness are likely to react to the stresses and strains of life.”

b. Can the proposed witness provide such assistance?

An expert must possess expertise - academic or experiential.
The proposed witness must be deemed to be peritus, that is specially knowledgeable about the
subject on which he is to testify. This is a question for the trial judge, and a matter of degree, though
the onus is on the party calling him to prove his competence.
Expertise is acquired either academically (through a formal course of learning) or practical
experience from work.

R v Silverlock (1894) - a solicitor who studied handwriting as an amateur for 10 years was
deemed an expert. (experiential)
Lord Russell CJ - “It is trite that the witness who is called upon to give evidence founded on a
comparison of handwritings must be peritus; he must be skilled in doing so; but we cannot say that he
must have become peritus in the way of his business or in any definite way. The question is, is he
peritus? Is he skilled? Has he an adequate knowledge? … If a witness is not skilled, the judge will tell
the jury to disregard his evidence…”

R v Clare & Peach (1995) - a police officer had made a special study of video recordings showing
people arriving at the football match. When scenes of disorder arose in the town centre, he was
permitted to give evidence identifying the accused persons shown on the film committing the
offences. It was held that as a result of this study, the officer had special knowledge which the jury
did not possess.

Gatheru s/o Njagwara v R (1954) - The issue was admissibility of the opinion of a police inspector
on whether a hand-made gun was a lethal weapon.
“It may well be that in the present circumstances in Kenya, a police officer employed on operational or
investigation work acquires sufficient practical knowledge to qualify him to speak as an expert… but
even so, his competency as an expert should in all cases be shown before his testimony is properly
admissible.”

In practice, however, formal qualifications are readily available and extremely helpful, if not vital, in
establishing expert status.
Normally, the very first thing an expert does when he is called to give evidence, or prepares a report
to be tendered at trial, is to list his qualifications and experience along with any publications in the
relevant field that he may have authored.
Party calling the expert has a duty to elicit from him evidence of the basis of his claim as an expert,
i.e professional training, academic background and experience. (examination-in- chief)
It is also the duty of opposing counsel, where appropriate, to cross-examine the expert effectively in
order to raise doubt as to his/her expertise. Failure to properly qualify an expert witness’ opinion
may lead to exclusion of his evidence.

In a ‘Battle of Experts’, all other things being equal, the better qualified person will usually prevail.

Courts can refuse expert status where witnesses are not peritus.

c. On what does the proposed witness base their opinion?

Facts on which experts base their opinion on must be proven by admissible evidence. - Section 54
Example:
- A pathologist might describe wounds that he identified on a dead body during a physical
examination that he personally conducted, before moving on to give an opinion as to their
cause. *
However, there is a common law exception to the hearsay rule, that an expert witness ‘may draw on
the body of expertise relevant to his field’.
If the rule against hearsay were strictly applied, an expert would often be prevented from giving an
opinion because his reasoning and conclusions will be based on matters learned in the course of his
training and experience - either from what he has read or from others who share his specialisation.

R v Steven Abadom (1983)

Kerr LJ: “...In other respects, their evidence is not subject to the rule of hearsay in the same way as that
of witnesses of fact… Once the primary facts on which their opinion is based have been proved by
admissible evidence, they are entitled to draw back on the work of others as part of the process of
arriving at their conclusion.”

d. Is the tendered opinion within a forensically proper field for expert evidence?

e. How is the witness constrained when giving evidence and what is his professional
duty to the court?
Production of Expert Evidence in Court - could be oral testimony or documentary evidence
- Expert evidence has to be produced by experts.
- Expert reports in evidence - criminal and civil cases
- Exchange of expert reports possible
- ‘Without prejudice’ discussions between experts aimed at reaching agreement on an issue
- Questions to experts?

Contents of an expert report

- Details of qualifications
- Details of any literature or material relied on (to guard against hearsay)
- Substance of all facts and instructions given to him upon which opinion is based
- Clarify which facts in the report are within his own knowledge
- Who carried out the test or examination used in the report. Was it under his supervision?
Qualifications of that person?
- Give his opinion and reasons
- Summary of conclusions

f. How should the court treat such evidence?

Weight accorded to expert evidence
Generally, courts have discretion to accept or ignore expert evidence, or choose between conflicting
expert reports, or to disregard both of them.
It is upon courts to assess both the logic and legal relevance of expert evidence and from it derive its
probative value by considering its reliability, materiality and cogency. [David Musyimi Ndetei t/a
Oasis Mineral Water Company & another v Safepak Ltd (2005)]

Pravin Singh Dhalay v Republic (1997) unreported: “It is now trite law that while the courts must
give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts
and the courts must not accept them. Such evidence must be considered along with all other available
evidence and if there is proper and cogent reason for rejecting the expert opinion, a court would be
perfectly entitled to do so.”

Elizabeth Kamene Ndolo v George Matata Ndolo (1995) - “The Evidence of PW1 and the report of
Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts
but as has been repeatedly held, the evidence of experts must be considered along with all other
available evidence and it is still the duty of the trial court to decide whether or not it believes the
expert and give reasons for its decision.
A court cannot simply say: ‘Because this is the evidence of an expert, I believe it.’
That, we think, is the proper direction which the court dealing with the opinion of an expert or experts
must give itself and the assessors when it is necessary to direct the assessors on such evidence. Of
course, where the expert who is properly qualified in his field gives an opinion and gives reasons upon
which his opinion is based and there is no other evidence in conflict with such opinion, we cannot see
any basis upon which such opinion could ever be rejected. But if a court is satisfied on good and cogent
ground(s) that the opinion, though it be that of an expert, is not soundly based, then a court is not only
entitled but would be under a duty to reject it.”

Even if expert evidence is unchallenged by that of another expert, but merely contested by
‘ordinary’ evidence, a tribunal of fact is usually free to ignore it - having duly considered it.
Armstrong & another v First York Ltd (2005): The court concluded that a trial judge was entitled
to prefer the evidence of two convincing claims of good character in a road traffic case, though they
were unsupported by expert testimony, to that of a jointly instructed expert.

In deciding what weight to accord expert evidence, the court often places considerable importance
on the degree of significance that the expert ascribes to his own opinion.
R v Atkins & Atkins (2009):
Hughes LJ: “An expert who spends years studying this kind of comparison can properly form a
judgement as to the significance of what he has found in any particular case. It is a judgement based
on his experience. A jury is entitled to be informed of his assessment. The alternative, of simply leaving
the jury to make up its own mind about the similarities and dissimilarities, with no assistance at all
about their significance, would be to give the jury raw material with no means of evaluating it. It
would be as likely to result in over-evaluation of the evidence as under-evaluation. It would be more,
not less, likely to result in an unsafe conclusion than providing the jury with the expert’s opinion,
properly debated through cross-examination and, if not shared by another expert, countered by
contrary evidence.”

Addendum: Role of the Expert Witness

In National Justice Cia Naviera SA v Prudential Assurance Co. Ltd: Cresswell J
Ikarian Reefer
1. Expert evidence presented to the court should be, and should be seen to be, the independent
product of the expert uninfluenced as to form or consent by the exigencies of the litigation.
2. An expert witness in the High Court should never assume the role of an advocate.
** An expert is not the mouthpiece of the client, but an officer of the court
3. An expert witness owes a duty to the court as well as to the client who has retained his
services. Stanton v Callaghan.
4. Experts have a duty to assist the court in resolving issues and coming to a just conclusion.
5. Duty to the court takes precedence over any duty owed to the client.
The court can appoint its own expert.
Although in most cases experts are party appointed, in civil matters, parties can agree to instruct a
single joint expert.

B. Lay/Non-expert Evidence
A non-expert may give opinion evidence where it is impossible to separate inferences from
perceived facts.
A non-expert may give opinion evidence to convey what he has personally observed.
Admissibility of non-expert opinion evidence is a question of degree.
Sarkar: “In certain classes of cases, opinions of certain witnesses are not helpful but have to be
admitted out of necessity. There are things or events that no language can describe and the best
opinion may be that which the witness formed. Examples of instances in which a non-expert may give
opinion evidence include evidence of identification, handwriting, speed, temperature, time etc.”
Also, where there is no better evidence available e.g age, health, intoxication, insanity, weather,
passing of time, value of common objects and speed, identification of voices, things or
description of objects as new, good, worn out or old.

IDENTIFICATION EVIDENCE
Identification evidence is used in connection with the identity of a person alleged to have
committed an offence.
Special need for caution before convicting based on where a case depends wholly or substantially
on such evidence:
1. Conviction could be based on mistaken identification of the accused
2. Identifying witnesses may be mistaken, but have sincere, honest and highly convincing
evidence
3. Diverse factors might affect the accuracy of identification evidence:
- Age of witnesses
- Respective ethnicity of witness and subject
- Degree of physiological arousal
- Lighting conditions

Identification parade
It is an assembly of persons from whom a suspect is to be identified
Black Law Dictionary: It is a police identification procedure in which a criminal suspect and other
physically similar persons are shown to the victim or a witness to determine whether the suspect
can be identified as the perpetrator of the crime.
They are held to enable eyewitnesses to identify the suspect, whom they allege they saw. In this
process, the eye witness’ ability to identify the suspect is tested with accuracy.
When are ID parades conducted?
 a. When the police have sufficient information to justify the arrest of a particular person for
suspected involvement in an offence; and
b. An eye witness has identified or may be able to identify that person; and
c. The suspect disputes his identification as a person involved in the commission of that
offence; or
d. Where a dispute as to identity may reasonably be anticipated
When ID parades should not be conducted
a. The suspect does not consent
b. It is impracticable to assemble people who resemble the suspect
c. The eye witness cannot identify the offender
d. The case is one of pure recognition of someone well known to the witness

Legal Framework on ID parade in Kenya

Section 63(2)(a) of the Evidence Act defines direct evidence in the following terms: “with
reference to a fact which could be seen, the evidence of a witness who says he saw it.”
Section 10(1)(r) as read with 10(2) and (3) of the National Police Service Act requires that the
Inspector General of Police to issue and document serving standing orders for the general control,
direction and information of the Service pursuant to Articles 10, 232 and 244 of the Constitution
of Kenya.
Police Force Standing Orders (1984) provides for the procedure for conducting identification
parades under Order 6.

ID Parade Procedure
1. Suspect is always informed of the reason for the parade and that he may have a solicitor or
friend present.
2. Investigating officer should not conduct the identification parade, though he may be
present.
3. Ensure that the witnesses do not see the accused before the parade
4. The accused should be placed amongst at least eight persons who are as far as possible, of
similar age, height, general appearance, gender and class of life as himself
5. If accused is suffering from any disfigurement, steps to be taken to ensure that it’s not
apparent
6. Accused should be allowed to take any position on the lineup and allowed to change the
same after each identifying witness has left, if he so wishes
7. Care should be exercised that the witness do not communicate with each other
8. Every unauthorised person should be excluded from parade
9. If the witness desires the accused to walk, speak or put on his hat, then he should do so, but
the whole parade should do the same
10. The conducting officer to ensure that the witness identifies the person without possibility of
error by touching the person he identifies
 11. At termination,/during the parade, the conducting officer should ask suspect if he is
satisfied with the manner in which the parade is being/has been conducted, and make note
in writing of his reply
12. Witnesses should be told he will see a group of people and suspect may or may not be there.
Witnesses should not be told to pick out somebody, or be influenced in any way whatsoever
13. Careful note must be recorded after each witness has left, stating whether the witness
identified the person and state the circumstances at hand
14. Comments by accused should be recorded by the conducting officer, especially after he has
been identified
15. Parade must be conducted with scrupulous fairness, or else value of the ID parade will be
lessened or nullified
16. Police officers should not make up the parade unless they are accused persons.

R v Mwango s/o Manaa (1963):

In this case, the ID parade took place at a hospital ward where only 3 men were actually paraded.
There were two plain-clothed askaris at the ward, but it was not clear whether they were part of the
parade or not. One of the askaris testified that the ID parade officer asked the deceased, “Amongst
these three men, who assaulted you?”
Held: The ID parade was unsatisfactory. The ID parade guidelines were cited and so was Kenya
Police Order No 15/26

Simon v Republic (1958):

“...it is not within established practice to question a witness who has made identification at a parade as
to his reason for doing so. A comment voluntarily made by the witness is often received in evidence as
part of the act of identification.”

R v Bulatikwa (1941)
It is dangerous to suggest to an identifying witness that the person to be identified is believed to be
present at the parade. In this case, the officer conducting the parade has told the identifying witness
“you know a man called Bulatikwa who you say killed your uncle. Come on to the verandah and see if
you can find him.”

Oluoch v Republic, Criminal Appeal no. 66 of 1984

A certain witness who attended the identification parade stated that he had been told to “identify
the people who robbed him”.
The trial magistrate and the High court Judge found the parade to have been properly conducted.
The COA however held that:
“In an identification parade, it is dangerous to suggest to an identifying witness that the person to
be identified is believed to be present at the parade. The value of the parade as evidence in this case
was considerably depreciated by that fact.”

Joseph Kariuki v Republic, Criminal Appeal no. 74 of 1985

Four persons were lined up with twelve other persons in an identification parade. The court held
that:
“Under Police Force (Standing) Orders, while conducting identification parades, one accused should be
lined up against at least eight other non-accused persons. It was an infringement of the orders and a
flaw in the proceedings to line up the four accused persons with 12 other persons in an identification
parade and this rendered the parade an unreliable source of identification.”

Njihia v R (1986)
There were three suspects who were mixed with eleven others for an ID parade.
Held:
“Mathematically that is too low a ratio (something like one to nearly four) to exclude the chance of
random guesswork. It is not difficult to arrange well-conducted parades. The orders are clear. If
properly conducted, especially with an independent person present looking after the interest of the
suspect, the resulting evidence is of great value. But if the parade is badly conducted and the
complainant identifies a suspect, the complainant will hardly be able to give reliable evidence of
identification in court.”

David Mwita Wanja & 2 others v R, Criminal Appeal no.117 of 2005

The same eight persons were used for three ID parades and as such, the identifying witness could
easily tell by elimination that the appellants were the only new faces in the parades. The parade was
rendered worthless by the court since it was extremely prejudicial to the appellants.

Challenges with ID parades

1. At times they are not carried out with scrupulous fairness as required by the Police Force
Standing Orders
2. Cases of mistaken identity can occasion miscarriage of justice against accused persons
3. Through understandable, but often misguided, many witnesses are eager to help police by
making positive identifications
4. Visual memory fades with time and may become confused or distorted
5. Some people have difficulty distinguishing between different subjects of only moderately
similar appearance
6. Witnesses to crime are able to see perpetrators fleetingly, often in stressful circumstances
7. Trauma

Dock Identification
A witness points out the accused standing at the dock and identifies him as the culprit who
committed the crime
Courts generally avoid convictions based on dock identifications because such evidence without
corroboration has less value. [Gabriel Njoroge v R (1982-1988)]
Amolo v Republic (1991):
“The reason for the court’s reluctance to accept a dock identification is part of a wider concept, or
principle of law, that it is not permissible for a party to suggest answers to his own witnesses or, as
sometimes put, to lead his own witness.”
The accused's presence in court may in certain cases prompt a witness to point him out as the
person he identified at the scene of the crime even though he might not be sure of that fact.
Additionally, the accused’s presence in the dock might suggest to a witness that he is expected to
identify him as a person who committed the offence. (Mwiruri and 2 others v R, Criminal Appeal
no. 117, 131, 133 of 2000)
In certain circumstances where the witness/complainant personally knows the witness, their
evidence after dock identifications are admissible in court. However, great care must be taken
concerning testimonies of single witnesses.
ID parade evidence carries a lot of weight and is more credible than DI evidence.

Probative Value of ID parade evidence

Once the ID parade is conducted, and the suspect is arraigned in court, the evidence produced in
court is:
a. The testimony of the ID parade officer who conducted the ID parade
b. The production of the ID parade form as exhibit in court
c. The evidence of arresting and/or investigating officer of the case (depending on the
circumstances of the arrest of the suspect)
The court will evaluate credibility (demeanour) of the witnesses, the veracity of the evidence (as
tested by the cross-examination from the defence), in conjunction with all other evidence adduced
in relation to the case to conclusively determine:
- Whether the accused person was positively identified (no mistaken identity); and
- Whether the accused person committed the offence charged
Courts rely on the guidelines outlined in R v Turnbull (1977), in evaluating contested
identification evidence and to ensure ID parades were conducted with scrupulous fairness to avert
the possibility of mistaken identity.

**Turnbull Guidelines
1. When the case against an accused person depends wholly or substantially on the
correctness of identification of the accused which the defence alleges to be mistaken, the
judge should take caution before convicting the accused in reliance on the correctness of the
identification(s)
2. Reason for caution is the possibility that a mistaken witness can be a convincing one and that
a number of such witnesses can all be mistaken
3. No particular form of words for caution so long as it is done in clear terms
4. Courts should examine closely the circumstances in which the identification by each witness
was made:
a. How long did the witness have the accused under observation?
b. At what distance?
c. In what light?
 d. Was the observation impeded in any way, as for example by passing traffic or a press
of people
e. Had the witness ever seen the accused before? How often? If only occasionally, had
he any special reason for remembering the accused?
f. How long elapsed between the original observation and the subsequent
identification to the police?
g. Was there any material discrepancy between the description of the accused given to
the police by the witness when first seen by them and his actual appearance?

**When Turnbull guidelines do not apply

1. Where identification is not challenged
2. Where a witness merely provides a general description of a suspect, without there
being any suggestion that there has been a positive identification or recognition of
the accused person
R v Gayle (1999)
A caretaker at a school, where the theft of a handbag occurred, described seeing a man on
the premises who was stocky, black, wearing a black bomber jacket with a distinctive logo.
Subsequently, a man matching this description was discovered acting suspiciously and in
close proximity to the stolen item, which was recovered.
Henry LJ: “This is not an identification case because the witness was not purporting to have
identified any individual person. All she was doing was giving evidence of her observation of an
unknown man wearing certain distinctive clothes.”
3. Where identification is in issue but the defence is that the identifying witness is
lying, rather than mistaken
R v Courtnell (1990)
The defence was one of alibi and it was alleged that the purported identification, by
someone who had known the accused for a week, was a fabrication. The issue was the
veracity of evidence and not mistaken identity.

Is there need for reform of law on ID parades?

1. Abolition of the requirement of an identifying witness touching the shoulder of an
accused once he/she has identified him. Provision exposes witnesses to dangerous people
causing fear and possibility of victimisation
2. A preferable solution is to number the parade members with visible numbers and ask the
witness to say the number rather than touch the accused
3. Adoption of the ‘Sequential System’ of Parades where the parade is carried out in a more
sequential manner rather than the lining up of people and asking the accused to identify the
accused.
In this way, it is envisaged that the witness will be forced to make an absolute choice about each
person seen rather than comparing the people on parade to each other
4. Group identification especially where the suspect is uncooperative
5. Video-film may be resorted to because of the suspect’s refusal to cooperate with a parade
or group identification.
6. The use of photographs in place of corporal parades. Using photographs in a well prepared
manner enables the witness to be confident and relaxed when identifying the accused
persons.
7. The VIPER (Video Identification Parade Electronic Recording) System, which is similar
to the use of photographs only that a database system of pictures is used in collaboration
with other hi-tech IT equipment.
DOCUMENTARY EVIDENCE
Document defined
Osborn Dictionary: “A document is something on which things are written, printed or inscribed
and which gives information; any written thing capable of being evidence.”

Section 3 of the Interpretation and General Provisions Act: Any publication and any matter
written, expressed or described upon any substance by means of letters, figures or marks.

R v Daye (1908): Darling J- “Any written thing capable of being evidence is properly described as a
document and it is immaterial on what the writing may be inscribed. It might be inscribed on paper, as
is the common case now; but the common case once was that it was not on paper, but on parchment;
and long before that it was on stone, marble, clay, and it might be, and often was, on metal.”

Adrian Keane (Modern Law of Evidence) : “Today’s equivalent of paper is often a disc, tape or film
and conveys information by symbols, diagrams and pictures as well as by words and numbers.”
[Kajala v Noble (1982):
The accused was convicted of using threatening behaviour likely to occasion a breach of
peace. A prosecution witness claimed to identify the accused on the BBC news footage
concerning the incident. BBC policy was not to allow originals of films to leave their
premises. A video cassette recording of the incident was produced and the court being
satisfied that it was an authentic copy of the original admitted it in evidence.
A question arose on appeal whether the original footage should have been produced in
court.The court deferred to the old classic rule that a party wishing to rely on the contents of
a document must produce an original where it is in the party’s hands, but concluded that,
“the old rule is limited and confined to written documents in the strict sense of the term and
has no relevance to tapes or films.”]

*Functional Equivalence Doctrine:

An examination of the function fulfilled by the traditional form requirements (writing, signature,
original) and a determination as to how the same function could be fulfilled in a dematerialised
environment.
- JAE Faria, ‘E-Commerce and international legal harmonisation: Time to go beyond functional
equivalence?’ (2004)

Proof of the Contents of a Document

A. General Requirements as to Primary Evidence
General Rule = Best Evidence Rule : Under documentary evidence, the party relying on the words
used in a document for any purpose must adduce the primary evidence of the contents. This
constitutes the original document itself.

Section 65 - Primary Evidence

1. Primary evidence means the document itself produced for the inspection of the court.
2. Where a document is executed in several parts, each part is primary evidence of the
document.
 3. Where a document is executed in counterpart, each counterpart being executed by one or
some of the parties only, each counterpart is primary evidence as against the parties
executing it.
4. Where a number of documents are all made by one uniform process, as in the case of
printing, lithography or photography, each is primary evidence of the contents of the rest;
but where they are all copies of a common original they are not primary evidence of the
contents of the original.

Slattery v Pooley (1820)

An informal admission by a party to litigation, concerning the contents of a document constitutes
primary evidence of the contents and is admissible in evidence against him.

DPP v Nathani (1966)

“...provided that where a number of documents are all made by one uniform process e.g printing, each
is primary evidence of the contents of the rest, but where there are copies of a common original, they
are not primary evidence of the contents of the original.”

B. Where Secondary Evidence is Admissible

Secondary evidence is admissible where a party wants to rely on the document for the purpose of
identifying it and is not concerned with its contents or with the truth of the contents.
In such a case, the best evidence rule is inapplicable and secondary evidence can be relied on e.g a
photocopy of the original document.
**A distinction must be made between reference to a document as a means of identifying its
contents and reference to a document in order to rely on its contents to communicate an idea. In
the former case, you need not apply the best evidence rule.

The rule also allows reliance on secondary evidence where the contents of the original are not in
dispute.

Section 66 - Secondary evidence

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.

Section 68 - Proof of documents by secondary evidence

Secondary evidence may be given of the existence, condition or contents of a document in the
following cases—
a. when the original is shown or appears to be in the possession or power of—
I. the person against whom the document is sought to be proved; or
II. a person out of reach of, or not subject to, the process of the court; 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; [Sugden v Lord St. Leonard’s (1876)]
d. when the original is of such a nature as not to be easily movable; [Mortimer v M’Callan
(1840)]
e. when the original is a public document within the meaning of section 79 of this Act;
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.

**Points to note regarding Secondary Evidence in proving contents of a document

1. Secondary evidence of the contents of a document may take the form of a copy, a copy of a
copy, or oral evidence.
2. Where secondary evidence is inadmissible, there is a general rule that “there are no degrees
of secondary evidence”. Accordingly, although less weight may attach to inferior forms of
secondary evidence, there is no obligation to tender ‘the best copy’ rather than an inferior
copy of a copy, and oral evidence of the contents is admissible even if a copy or some other
form satisfactory type of secondary evidence is available.
3. The purpose of the Notice to Produce a document under S69 of the EA is not to notify the
other party that reliance will be placed on the document so that he can prepare evidence to
explain or confirm it, but merely to give him sufficient opportunity to produce the original if
he wishes or, if he does not, to enable the party giving the Notice to adduce secondary
evidence.
4. A party who fails to comply with the Notice to Produce and thereby obliges his adversary to
give secondary evidence cannot subsequently rely on the original.
5. A party who complies with a Notice to Produce may require the party who served the Notice
to put the original document in evidence. Accordingly, a party who serves a notice to
produce merely as a means of inspecting a document runs a risk, should its contents prove
unfavourable to his case, of being compelled to use it.

Public Versus Private Documents

This is provided for in Section 79.
Section 79 - Distinction between private and public documents
1. The following documents 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.
2. All documents other than public documents are private.
Public documents are those that are prepared by a public official in their ordinary course of
business, e.g the Kenya Gazette, Hansard, Statutes.
These form an exception to the hearsay rule since the makers are not called as witnesses.
Certified documents, or in certain cases, authentication in proof of the contents of the whole or part
of the document, are produced to prove public documents.
Section 80 - Certified copies of public documents
1. Every public officer having the custody of a public document which any person has a right to
inspect shall give that person on demand a copy of it on payment of the legal fees therefor,
together with a certificate written at the foot of such copy that it is a true copy of such
document or part thereof, as the case may be, and such certificate shall be dated and
subscribed by such officer with his name and his official title, and shall be sealed whenever
such officer is authorised by law to make use of a seal, and such copies so certified shall be
called certified copies.
2. Any officer who by the ordinary course of official duty is authorised to deliver copies of
public documents shall be deemed to have the custody of such documents within the
meaning of this section.
Section 81 - Proof by certified copies
Certified copies of public documents may be produced in proof of the contents of the documents or
parts of the documents of which they purport to be copies.

Tootal Broadhurst Co. Ltd v Ali Mohammed (1954)

“It is not, however, all public documents that can be proved by means of certified copies but only those
‘which any person has a right to inspect’. There is no evidence before me and I can see nothing in the
law to the effect that the Registrar of Designs keeps or is bound by law to keep a copy of every
certificate of registration, which he issues for inspection by the public…”

Private documents are any document other than a public document, e.g medical documents,
academic & professional certificates. Private documents are ordinarily not open for public
inspection.
Private documents must be proved to be genuine.
Proof of Due Execution of a (Private) Document
The Act dispenses with the necessity of proving that a document has been duly executed.
Mere production of a private document without proof of authorship is not sufficient.
Stamper v Griffen (1856)
“No writing can be received in evidence as a genuine writing until it has been proved to be a
genuine one, and none as a forgery until it has been proved to be a forgery. A writing, of itself,
is not evidence of one thing or the other. A writing, of itself, is evidence of nothing and
therefore, is not, unless accompanied by proof of some sort, admissible as evidence.”
Due execution is proved by showing that it was signed by the person by whom it purports to have
been signed and when attestation is required, that it was duly attested.
The due execution of a private document by way of handwriting is proved, provided that you prove
that either the document was signed by the person by whom the document purports to be signed or
by proof of attestation.

A. Proof of handwriting or signature

Section 70 - Proof of allegations that persons signed or wrote a document
If a document is alleged to be signed or to have been written wholly or in part by any person, the
signature or the handwriting of so much of the document as is alleged to be in that person’s
handwriting must be proved to be in his handwriting.

This can be done in three ways:

a. Testimonial Evidence
This is the testimony of the person whose handwriting is to be proved or admissible hearsay
statement, i.e, the statement of the person who saw the document being executed, e.g an attesting
witness or bystander.

b. Opinion Evidence
A witness who has not seen a document being written, signed or executed may give evidence as to
his opinion that the writing or signature is that of a particular person.
Such an opinion is not based on expertise, but on the witness’s acquaintance with the writing or
signature of the person whose handwriting is to be proved.
It is material that the witness may have seen you writing or signing such documents e.g your
secretary *
Doe d’ Mudd v Suckermore (1837)
Denman C.J:
“The clerk who constantly reads the letters or the broker who was ever consulted upon them is as
competent to judge whether another signature is that of the writer of the letters as the merchant to
whom they were addressed.
The servant who has habitually carried letters addressed by me to others has an opportunity of
obtaining knowledge of my writing though he never saw me write or received a letter from me.”

R v O’Brien (1911)
“To prove handwriting, it is necessary that the witness had either seen the person write, or correspond
regularly with him, or acted upon such a correspondence, then he may swear to his belief of the
handwriting. Without such grounds or foundations of belief, such questions are inadmissible.”
The witness must demonstrate to the court that he had sufficient opportunity to acquire the
knowledge of the handwriting.

c. Comparison
This is a comparison of the document in question with another document which is proved or
admitted to have been written by the person in question.
Doe d’Mudd:
“All evidence of handwriting, except where the witness sees the document written, is in its nature
comparison. It’s the belief which a witness entertains on comparing the writing in question with an
example in his mind derived from some previous knowledge.”

The document in question is proved as follows:

It is first produced. Then the witness testifies as to his knowledge of the author’s writing or
signature (comparison of handwritings)
An expert should not say definitely that the handwriting is of a particular person, but instead point
out similarities (“consistent with”) and differences. It is for the court thereafter to draw its own
conclusion.

B. Proof of attestation
Attestation is the act of witnessing the signing of a formal document and then also signing it to
verify that it was properly signed by those bound by its contents.
It is a legal acknowledgement of the authenticity of a document and the verification that proper
process were followed.
It is most applicable to deeds, wills and other testamentary documents; and documents transferring
an interest in land.

Section 71 - Proof of execution of documents required by law to be attested

If a document is required by law to be attested it shall not be used as evidence until one attesting
witness at least has been called for the purpose of proving its execution, if there is an attesting
witness alive and subject to the process of the court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any
document which has been registered in accordance with the provisions of any written law,unless its
execution by the person by whom it purports to have been executed is specifically denied.

Section 72 - Proof where no attesting witness found

Where evidence is required of a document which is required by law to be attested, and none of the
attesting witnesses can be found, or where such witness is incapable of giving evidence or cannot be
called as a witness without an amount of delay or expense which the court regards as unreasonable,
it must be proved that the attestation of one attesting witness at least is in his handwriting, and that
the signature of the person executing the document is in the handwriting of that person.
**In such instances, secondary evidence of attestation by proof of the handwriting of one of the
attesting witnesses is required.
**Other evidence of due execution is admissible e.g that of a non-attesting witness to the execution.
Pope v R (1960)

Section 73 - Admission of execution of attested document

The admission of a party to an attested document, of its execution by himself, shall be sufficient proof
of its execution as against him though it be a document required by law to be attested.

Admissions and Presumptions Relating to Execution and Attestation

Due execution is frequently admitted or presumed, thereby rendering proof of handwriting and
attestation unnecessary.
Proof of due execution is also unnecessary when the document in question is in the possession of an
opponent who refuses to comply with a notice to produce it.
A document which is more than 20 years old and comes from proper custody is presumed to be duly
executed. The court must be satisfied that such custody was ‘reasonable and natural’ in the
circumstances of the case. *

Extrinsic Evidence in Relation to Documents

It refers to any evidence other than the document the contents of which are under consideration.
It refers to evidence which has some bearing on the interpretation of a document and is drawn from
a source outside the document’s own terms eg early negotiations, oral conversations, letters and
earlier drafts of the document
Two major concerns arise:
a. Whether once a transaction has been embodied in a document, evidence may be given of its
terms other than those it provides for
b. Whether evidence may be given of the terms of a document considering that most complete
legal documents provide for the meanings of various terms herein

The parol evidence rule is applicable: That evidence cannot be admitted, or even if
admitted, cannot be used to add to, vary, or contradict a written instrument.
*** Parol evidence: any agreement that is not contained within the written contract.
Section 97 - Written contracts and grants
1. When the terms of a contract, or of a grant, or of any other disposition of property, have been
reduced to the form of a document, and in all cases in which any matter is required by law to
be reduced to the form of a document, no evidence shall be given in proof of the terms of
such contract, grant or other disposition of property, or of such matter, except the document
itself, or secondary evidence of its contents in cases in which secondary evidence is
admissible under the provisions of this Act.
Section 98 - Evidence of Oral agreements
When the terms of any contract or grant or other disposition of property, or any matter required by
law to be reduced to the form of a document, have been proved according to section 97 of this Act, no
evidence of any oral agreement or statement shall be admitted as between the parties to any such
 instrument or their representatives in interest for the purpose of contradicting, varying, adding to or
subtracting from its terms …

General Rule
Extrinsic evidence is generally inadmissible when it would, if accepted, have the effect adding to,
varying, or contradicting the terms of a judicial record, a transaction required by law to be in
writing, or a document constituting a valid and effective contract, or other transaction.
Bank of Australia v Palmer (1887)
Goss v Lord Nugent (1824-25)
Binti Abdulla v Sharifa Binti Mohamed (1958)

Extrinsic evidence is admissible in the following cases:

- To explain the technical meaning of a word or trade usage
- To explain some latent ambiguity in the terms of a contract
- To identify terms where a collateral contract exists
- To prove some fact - oral evidence may be called to explain that fact. This applies where the
document is not in issue itself, but is merely used as evidence
- To prove the date on which the contract was entered into (can be done through oral
evidence)
**The date on a document is not a term of the contract

Presumptions relating to documents

Section 77(2) - Presumption as to the genuineness of the signatures of government analysts,
medical practitioners, ballistic experts, document examiners and geologists
Section 78(2) - Presumption as to the genuineness of the signatures of officers appointed by the
Attorney General appearing on a certificate in the form given in the Schedule to the Act (relating to
photographic evidence)
Section 83 - Presumptions as to genuineness of certificates or certified documents
Section 84 - Presumption as to the genuineness of documents purporting to be records of evidence
given in a judicial proceeding
Section 85 - Presumption as to the due making or tenor of all written laws or notices purporting to
be published by the Government Printer or contained in a copy of the Kenya Gazette
Section 86 - Presumption as to the genuineness of every document purporting to be the London
Gazette, the Edinburgh Gazette, or the official gazette of any country of the commonwealth, a
newspaper or journal or a document directed by any law to be kept by any person.
Section 89 - Presumption as to the publishing and accuracy of maps or plans purporting to be made
or publishing by the authority of the Gmt, or any department of the Gmt, of any country in the
Commonwealth
Section 90 - Presumption as to the genuineness of every book purporting to be printed and
published under the authority of the government of any country or yo contain reports of decisions
of the courts of any country
ELECTRONIC EVIDENCE
Definition
Section 2 of the Kenya Information And Communications Act defines ‘electronic 'as “relating to
technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar
capabilities”.
Schafer & Mason (2017 - The Characteristics of Electronic Evidence) : Electronic Evidence is data
(comprising the output of analogue devices or data in digital form), that is manipulated, stored or
communicated by any manufactured device, computer or computer system or transmitted over a
communication system or transmitted over a communication system.
**This definition fails to take into account how the evidence is collected

Authentication - ascertaining information as to authorship or an adducer’s personal connection to

the document in question.
Essentially, a court must be satisfied that the document is what it purports to be in order for it to be
admitted.

General Rule - Electronic Evidence is admissible subject to production of a certificate of

authentication.
Section 106B - Admissibility of Electronic Evidence and conditions for its admissibility
The certificate needed must satisfy three conditions:
a. Must identify the electronic records and production process
b. Must show the particulars of the producing device
c. Must be signed by the responsible person

Section 78A - Admissibility of electronic and digital evidence

● Section 106B requires production of a certificate of authentication while Section 78A does
not. The contradiction has been settled by the Court of Appeal which has held that the
certificate is a mandatory precondition which should not be overlooked despite the same
not being a requirement under Section 78A.
- Republic v Barisa Wayu Matugunda (2011):
CCTV transmitted to CD
“... any information stored in a computer… which is then printed or copied… shall be treated
just like documentary evidence and will be admissible as evidence without the production of
the original. However, Section 106B also provides that such electronic evidence will only be
admissible if the conditions laid out in that provision are satisfied.
This provision makes it abundantly clear that for electronic evidence to be deemed admissible
it must be accompanied by a certificate in terms of Section 106B(4). Such certificate must in
terms of Section 106B(4)(d) be signed by a person holding a responsible position with respect
to the management of the device … without the required certificate, this CD is inadmissible as
evidence.”
The court ought to lean on the side of caution “incase the evidence was tampered with”
 - Republic v Milan
- William Odhiambo Oduol v Independent Electoral & Boundaries Commission & 2
others:
“First, while alterations on physical documents are often immediately visible on its face, this is
not the case with electronic material. An electronic document can be, and is often, modified in
the process of collecting it as evidence. A common example occurs when a file or application is
opened, or copied from one computer into another or into an external hard drive. Changes
which are not often immediately visible occur.
Second, compared with physical or other forms of exhibit evidence, electronic evidence is
relatively more difficult to detect and trace the signs of tampering. It can be changed or
manipulated much more easily than paper or other forms of evidence without having any
obvious trace of such alteration.
Third, computer equipment runs on an artificial intelligence which receives, interprets and
applies human commands. This artificial intelligence has been known to go awry. System
crashes, viruses, and/or botnets often occur, compromising the integrity of the material
captured, preserved or presented using a computer.
Finally, the capturing, preserving and presenting of evidence in electronic form requires a
measure of technical knowledge in the operation of the electronic equipment.”
Article 159(2)(d) of the Constitution provides that procedural technicalities (i.e certificate of
authentication) should not be given undue regard.

Section 106 C - Proof as to an electronic signature

Except in the case of a secure signature, if the electronic signature of any subscriber is alleged to
have been affixed to an electronic record, then the fact that such an electronic signature is the
electronic signature of the subscriber must be proved.

Section 106D - Proof as to the verification of electronic signature

In order to ascertain whether an electronic signature is that of a person by whom it purports to
have been affixed, the court may direct—
a. that person or the certification service provider to produce the electronic signature
certificate; or
b. any other person to apply the procedure listed on the electronic signature certificate and
verify the electronic signature purported to have been affixed by that person.
**Business Laws Amendment Act

Other Presumptions of Documentary Evidence

Section 106E - Presumption as to Gazette in electronic form
A court shall take recognizance of every electronic record purporting to be the official Gazette, or
purporting to be electronic record directed by any law to be kept by any person, if such electronic
record is kept substantially in the form required by law and is produced from its proper custody.

Section 106F - Presumption as to Electronic agreements

A court shall presume that every electronic record purporting to be an agreement containing the
electronic signatures of the parties was concluded by affixing the digital signature of the parties.

Section 106G - Presumption as to electronic records and electronic signatures

1. In any proceedings involving a secure electronic record, the court shall presume, unless the
contrary is proved, that the secure electronic record has not been altered since the specific
point of time the secure electronic signature was affixed.
2. In any proceedings involving secure electronic signature, the court shall presume, unless the
contrary is proved, that the secure signature is affixed by the subscriber with the intention
of signing or approving the electronic record.
3. Except in the case of a secure electronic or secure digital signature, nothing in this section
shall create any presumption relating to authenticity and integrity of the electronic record
or any digital signature.

Section 106H - Presumption as to electronic signature certificate

‘A court shall presume, unless the contrary is proved, that the information listed in an electronic
signature certificate is correct, except for information, which has not been verified, if the certificate
was accepted by the subscriber.’
Presumption of ‘non-alteration’ of e-signature

Section 106I - Electronic messages

‘A court may presume that an electronic message forwarded by the originator through an electronic
mail server to the addressee to whom the message purports to be addressed corresponds with the
message as fed into his computer for transmission, but the court shall not make any presumption as
to the person by whom such a message was sent.’
No presumption in favour of the author of the electronic message

E-evidence may be highly volatile, prone to manipulation or at risk of damage.

Main challenge relates to the authenticity and probative value of electronic evidence.

** Does electronic evidence go against the best evidence rule? Does an ‘original’ exist in the digital
world?
Admission of Electronic Evidence: Contradictions in the Kenyan Evidence Act - Issac Rutenberg,
Stephen Kiptinness & Abdulmalik Sugow
ADMISSIONS AND CONFESSIONS
ADMISSIONS

Section 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.”
Section 18 - Statement by party to a suit or agent or interested person
Section 19 - Statement by persons whose position or liability must be proved as against
party to suit
Section 20 - Statement by persons expressly referred to by party to a suit
An admission waives or dispenses with the production of evidence by conceding that the facts
asserted by the opponent is true.

Types of admissions
Formal admissions - made in the pleadings e.g in the Statement of Defence (“I admit to the contents
in paragraph 6”)
Informal / extra-judicial admissions - made before or during proceedings. Common in criminal
cases (confessions e.g to police officers).
Implied admissions
Express admission - in letters, witness statements, affidavits, plaints, deeds, receipts

An admission is the broader category of statements, oral or written.

** Confessions operate only in criminal matters while admissions are in both civil and criminal
matters.

Elements of Admissions
1. Must be clear and certain
2. Binds a person in matters of fact not on points of law
3. Must be made voluntarily
4. Must be an accurate specific statement of the maker in his own words not inferences drawn
by someone else
5. Must be made on the basis of personal knowledge of the facts stated
6. Must be taken as a whole and not in part

Effects of Admissions
1. Constitutes a substantive piece of evidence in the case that can be relied upon to prove the
truth of the facts incorporated therein
2. Shifts the onus of proving to the contrary on the party against whom it is produced. If
there’s no satisfactory explanation, it is presumed to be true
3. Admissions are not conclusive proof of the matter admitted, but they operate as estoppel
- Section 24
CONFESSIONS
A confession is any statement wholly or partly adverse to the person who makes it, whether
made to a person in authority or not, and whether made in words or otherwise.
It is an admission made at any time by the person charged with a crime stating or suggesting the
commission of a crime.
Swami v King Emperor (1939): Lord Atkin: “A confession must admit the offence in its terms or
substantially all the facts which constitute the offence.”
Section 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.” (not conclusive)

Principles governing confessions

At common law, confessions had to be made voluntarily. Because:
[Legal backing: Right to a fair trial; Right not to give self-incriminating evidence; Presumption of
innocence; Duty of the prosecution to obtain evidence against the accused]
a. Reliability Principle
If a confession is involuntarily obtained, it may not be reliable since it could be made out of fear,
hope, inducement or threat on the suspect
b. Disciplinary principle
Investigators must be discouraged from using improper means to obtain confessions. The aim is to
deprive them of any advantage that a confession would give them by obtaining evidence with ease.
R v Kaperere s/o Mwaya (1948)
“...the evidence of oral confession of guilt ought to be received with great caution. For not only does
considerable danger or mistake arise from the misapprehension or malice of witnesses, the misuse of
words, the failure of the party to express his own meaning, and the infirmity of memory; but the zeal
which generally prevails to detect offenders, especially in cases of aggravated guilt, and the strong
disposition which is often displayed by persons engaged in pursuit of evidence, to magnify slight
grounds of suspicion into sufficient proof - together with the character of the witnesses, who are
sometimes necessarily called in cases of secret and atrocious crime - all tend to impair the value of this
kind of evidence, and sometimes leads to its rejection, where, in all civil actions, it would have been
received.”

When are confessions made? - Section 25A

a. Under inquiry recorded by police officers when inquiring into alleged offence
b. Under charge and caution, when the police have made up their mind to charge a suspect.
Suspects are more careful about what they tell the police since they are warned that it can
be used in evidence against them.
c. Judicial confessions.

Section 25A - Confessions generally admissible

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 Inspector of
Police, and a third party of the person’s choice.
R v Maalim Komora Godana & another (2006): “Only judicial, as opposed to extra-judicial,
confessions can be received by the Court. Judicial confessions are those which are made in
Court in the due course of judicial proceedings, where a suspect makes an unequivocal plea
of guilt to a charge under the protecting caution and oversight of the judge or magistrate.”

Legal Basis of Confessions

Constitutional Basis of confessions
1. Rights of arrested persons
Right of accused to remain silent - Article 49(1)(a)(ii) & (b)
Right not to be compelled to make any confession or admission that could be used in evidence
against the person - Article 49(1)(d)

2. Rights of accused person to a fair hearing

Right to remain silent - Article 50(2)(i)
Right to refuse to give self-incriminating evidence - Article 50(2)(l)
Exclusion of illegally obtained evidence - Article 50(4)
Rights of persons in detention, custody or imprisonment - Article 51(1)

Statutory Basis of confessions

Section 28(repealed) - Law allowed confessions from an accused person while in police custody
only in the presence of a magistrate or a police officer of the rank of inspector and above
The Criminal (Amendment) Act (No. 5 of 2003) repealed Sections 28, 30 and 31.
Amendments necessitated by serious doubts as to the capability of the police to extract confessions
without resorting to means which could lead to gross miscarriage of justice and grave human rights
violation.
Section 25A was introduced making confessions admissible when made in court (only).
However, there was retention of Section 29 whereby a confession made to a police officer of the
rank of inspector and above or to an administrative officer exercising magisterial powers and acting
in the capacity of a police officer, is admissible.
Section 25A was found to be totally impractical. An amendment to Section 25A by Act No.7 of 2007
added the following: “...before a judge, a magistrate or before a police officer (other than the
investigating officer), being an officer not below the rank of Inspector of Police, and a third party of
the person’s choice.”

Extra-judicial / Out-of-court Confessions

Section 25A(1)(ii): “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.”
Evidence (Out of Court Confessions) Rules, 2009; Rule 4(1) deals with the rights of accused
persons:
“Where an accused person intimates to the police that he wishes to make a confession, the
recording officer shall take charge of the accused person and shall ensure that the accused person:
a. States his preferred language of communication
b. Is provided with an interpreter free of charge where he does not speak either Kiswahili or
English
c. Is not subjected to any form of coercion, duress, threat, torture or any other form of cruel,
inhumane or degrading treatment or punishment
d. Is informed of his right to have legal representation of his own choice
e. Is not deprived of food, water or sleep
f. Has his duration, including date and time of arrest and detention in police custody,
established and recorded
g. Has his medical complaint, if any, adequately addressed
h. Is availed appropriate communication facilities
i. Communicates with the party nominated by him under paragraph (3) prior to the caution to
be recorded under rule 5

A ‘recording officer’ means a police officer (other than the investigating officer) who is not below
the rank of Chief Inspector of Police.
Rule 4(2) - The recording officer is not to record a confession from any accused person who
complains to him of being a victim of torture or whose physical appearance shows signs of physical
injuries including open wounds, body swelling, or shows extraordinary fatigue or other indicators
that would suggest that the accused person has been tortured.
Rule 4(3) - The recording officer asks the accused person to nominate a third party who shall be
present during the duration of the confession session, and upon the appearance of the third party,
the recording officer shall record the third party’s particulars and relationship to the accused
person.

Caution to the accused person

Rule 5(1) requires the recording officer to caution the accused in the following terms and record
his response:
“Do you wish to say anything? You are not obliged to say anything unless you wish to do so but
whatever you say will be taken down in writing and may be given in evidence.”
Rule 5(2) - While recording the confession, the recording officer must ensure, and record
compliance, that where the confession session is prolonged, the session includes rest and relaxation
periods.
Rule 5(3) - The confession is to be recorded at the same time it is made and show date and time of
commencement of the confession session and the place where the confession is recorded
Rule 8 - At the conclusion of the recording, the accused person shall be offered the opportunity to
clarify anything he has said and to add anything he may wish.
Rule 6 - The recording officer may record the confession of an accused person using electronic
media and:
 - The accused person shall be notified of the recording, and of his right to object
- The recording media shall be in the open
The master recording shall be produced in court, while the second recording will be used as
a working copy by the prosecuting authority during the period of exercise of prosecutorial
discretion.
Rule 9 - Certificate of confession - the recording officer must ensure that the written confession or
electronic recording media contains the following certificate at the end of the confessions, in the
original language of the accused person -
“I have read the above statement and I have been told that I can correct, alter or add anything
I wish. The statement is true. I have made it of my own free will.”
Rule 14 - The recording officer must certify, in writing, that a confession was not obtained as a
result of any inducement, threat, or promise having reference to the charge against the accused
person.

Admissibility of Confessions
Section 26 - Confessions and admissions caused by inducement, threat or promise
“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 advantage or avoid any evil of a temporal nature in reference to
the proceedings against him.”
Section 26 plays a role in finding whether confessions were fairly made and to admit only voluntary
confessions
If the inducement is from a person in authority, it is more likely to operate on the accused’s mind
and lead him to confess.

Evidential Issues from Section 26

Once a confessional statement is produced and a question of voluntariness is raised, the burden is
on the prosecution to prove affirmatively that the confessions that had been voluntarily given.
The accused need only raise doubt about the voluntariness.
Njuguna s/o Kimani & another v R (1946):
“It is the duty of the court to examine with the closest care and attention all the circumstances in which
a confession has been obtained from an accused especially when the accused has been in custody for a
long time.
The onus is upon the prosecution to prove affirmatively that a confession has been voluntarily made
and not obtained by improper or unlawful questioning. The prosecution also has to prove that any
inducement to make a confession has ceased to operate on the mind of the maker at the time of the
making.”
Section 27 - Confessions made after the removal of impression caused by inducement, threat
or promise
“If such a confession as is referred to in section 26 of this Act 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.”

Section 29 - Confessions to police officers

“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.”

Section 32 - Confessions implicating co-accused

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 persons 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— (**not drawing an inference, it is conclusive)
"offence" includes the abetment of, or an attempt to commit, the offence
The requirements at S32 are more stringent, since in S25 confessions are said to comprise words or
conduct from which an inference may be drawn the person making it has committed an offence or
facts constituting the offence. S32(2) talks of admitting an offence or facts constituting offence
meaning the commission of the offence has been established.
When you implicate another person, the rules get more stringent, but when you admit your own
guilt without others it is assumed that you will be careful enough not to get put down for a specific
offence.
Evidence of a co-accused person requires corroboration as it is of the weakest kind since an
accused person can implicate another, intending to save himself from blame. [Wilfred Thomas
Mwita alias Babu & another v R (2019); Peter Kinyua Ireri v R (2016)]

Objections by an accused to statements

An accused can retract or repudiate a confession as explained in Tuwamoi v Uganda (1967) thus:
“A retracted confession occurs when the accused person admits that he made the
statement recorded but now seeks to recant, to take back what he said generally on the
ground that he had been forced or induced to make the statement. In other words, the
statement was not a voluntary one.
On the other hand, a repudiated statement is one which the accused person avers he never
made… the implications are the same, that is, that such statements should be treated with
 caution and should not be the basis of a conviction unless it has been corroborated in some
material particular.”

A trial within a trial is conducted to assess whether a confession was voluntary and hence
admissible.
Kinyori s/o Karunditu v R (1956) outlined the procedure during a trial within a trial:
a. The defence informs the prosecution that issues will arise regarding that statement
b. When the prosecution calls the investigating officer, the defence should inform the court
that there is a point of law that arises
c. Prosecution calls its witnesses to prove the voluntariness of the confession/statement and
the defence is entitled to cross-examine those witnesses
d. The defence calls its witnesses and explains the manner in which the statement was made
e. If the statement is admissible, then it will be used in evidence in trial.

****Voir Dire****
CHARACTER EVIDENCE
Section 58 - Definition of “character”
In sections 55, 56 and 57 of this Act 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.

Character is the quality which distinguishes a person from another.

Character evidence refers to the testimony concerning the reputation of a person in his community,
i.e, amongst persons who know him best, regarding a particular trait. …
Reputation - the opinions held by others about someone or something; the estimation in which a
person is held in the community where they work or is generally known.
Disposition - a person’s inclination, proclivity or inner tendency, i.e, his propensity to act, think or
feel in a given way. Also refers to the general tendency of character or behaviour.

Character Evidence in Civil Cases

Section 55 - Character in Civil Cases
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.

General Rule:
Evidence of character of the parties is inadmissible in order to render probable or improbable any
facts in issue or imputed to any person.
**The court is not concerned with trying the character of the parties but with the facts of the case
and the relevance and admissibility of the evidence before it.

Exceptions
1. Character as a fact in issue
The evidence of character of a party or non-party is admissible if it’s in issue or direct relevance.
E.g In a defamation claim where the defence of justification is rendered, the character of the
Plaintiff directly comes into issue. To justify the reception of a defamatory statement already made,
the defendant must prove that the statement was true.

2. Character relevant to a fact in issue

Character evidence may be admissible if it is of sufficient relevance or probative force in relation to
the facts in issue.
Such evidence relates to particular acts of misconduct on other occasions.
Mood Music Publishing Co Ltd v De Wolfe Ltd (1976) - SFE in Civil Cases

3. Character which affects the quantum of damages

Evidence of character adduced in court which affects the quantum of damages is admissible.
Damages to be awarded depend on the estimation in which the Plaintiff in a defamation suit for
instance, is held by society. The higher a person is regarded in society, the more damages payable to
him if they succeed in the claim.
Uren v John Fairfax & Sons Pty Ltd (1966)
Windeyer J:
“It seems to me that, properly speaking, a man defamed does not get compensated for his damaged
reputation. He gets damages because he was injured in his reputation, that is simply because he was
publicly defamed. For this reason, compensation by damages operates in two ways - as a vindication of
the Plaintiff to the public, and as consolation to him for a wrong done. Compensation is here a solatium
rather than a monetary recompense for harm measurable in money.”

4. Character relevant to credit

The character of a witness may be probed in a civil suit during cross-examination. Such evidence of
character is admissible.
Section 154 - Cross-examination as to credibility
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.

Character Evidence in Criminal Cases

Section 56 - Good Character in Criminal Cases
In criminal proceedings, the fact that the person accused is of a good character is admissible.
Evidence of good character may however not be helpful to the accused as the court is interested in
determining the relevance and admissibility of the evidence before it.
Good character is also admissible after sentencing when giving mitigation factors.

Section 57 - Bad Character in Criminal Cases

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—
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 of this Act 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) of this subsection 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.
2. Notwithstanding the provisions of subsection (1) of this section, 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

Exceptions:
1. Evidence forming part of a fact in issue or is directly relevant to a fact in issue
Section 57(1)(aa)
Mugo v R (1966)
Five co-accused were charged with robbery with violence and were found in the possession of a
firearm.

Makin & Makin v AG (1894)

Lord Herschell: “On the other hand, the mere fact that the evidence adduced tends to show that the
commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury;
and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime
charged in the indictment were designed or accidental , or to rebut a defence which would otherwise
be open to the accused.”

2. SFE
Section 57(1)(a); Sections 14 & 15
Evidence which proves that the accused has committed or been convicted of such other offence is
admissible to show that he is guilty of the offence which he is then charged with. [Makin v AG
(1894)]
Evidence of non-criminal immorality is inadmissible and only evidence of previous convictions is
admissible. [R v Cokar (1960)]

3. Integral Part of Defence Theory/The Inevitable Loss of Shield

Section 57(1)(b)
Maxwell v DPP (1935)
R v Winfield (1939): “An accused person who puts his character in issue puts his whole character
in issue. He cannot assert his good character in certain circumstances without exposing it all to
scrutiny…”
If the accused does not put his own character in issue, evidence of bad character (other than the
admission of SFE) is inadmissible. [R v Butterwasser (1948)]
 4. If the nature or conduct of the defence is such as to make imputations on the
character of the complainant or of a witness for the prosecution
Section 57(1)(c)
This subsection has a rider, that the probative value should outweigh the prejudicial effect.

R v Preston (1909):
Channel J: “...if the defendant is such as to involve the proposition that the jury ought not to believe the
prosecutor or one of the witnesses for the prosecution, upon the ground that his conduct - not the
evidence in the case, but his conduct outside the evidence given by him - makes him an unreliable
witness, then the jury ought also to know the character of the prisoner…”

5. Evidence against co-accused

Section 57(1)(d)
Evidence of bad character of an accused is admissible if he has given evidence against any other
person charged with the same offence, whether or not it prejudices the co-accused.
Murdoch v Taylor (1964)
PROOF OF FACTS OTHERWISE THAN BY EVIDENCE
Generally, all facts in issue must be proven, and any condition precedent must be proven by the
person who seeks to adduce such evidence.
Some matters, however, need not be proved for these reasons:
- Some matters are well known or they have already been admitted by the parties
- Proving some matters may jeopardise national security especially matters which are
considered as classified
- Proving some matters may be prejudicial to a fair trial in the way likely to mislead the court
and thereby jeopardise justice
Some matters are therefore presumed to be true in the absence of proof and no evidence is required
to prove them.

A. Judicial Notice
This is a liberty accorded to a judicial officer to recognise the existence or non-existence of certain
facts without calling for evidence.

Commonwealth Shipping Representative v P&O Branch Services (1923)

Lord Sumner:
“...facts which a judge or a magistrate may be called upon either from his general knowledge of them,
or from the inquiries to be made by himself for his own information from sources to which it is proper
for him to refer.”

Section 59 - Facts Judicially noticed

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

Section 60 - Facts of which the court shall take judicial notice

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 Kenya Military Forces;
d. deleted by LN 22 of 1965;
e. the public seal of Kenya; the seals of all the courts of Kenya; and all seals which any
person is authorised 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 authorised 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) of this section, 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.

The party that asks the court to take judicial notice of any matter must thus convince the court on
two points:
- That the matter is so notorious as not to be subject of dispute among reasonable persons
- That the matter is capable of immediate and accurate demonstration by resort to readily
accessible sources of indisputable accuracy

Importance of Judicial Notice

a. It ensures that there is uniformity in decisions of the courts
b. It reduces the incidents of embarrassment of the state by the courts taking individual views
on foreign matters as well as political issues such as the nature of diplomatic relationship
that exists between countries
R v Bottrill exp. Kuechenmeister (1946)
The CoA took note of the sour diplomatic relationship that exists between the UK and
Germany and refused to grant an application for habeas corpus to a German national.
c. It saves time and expenses involved in proving matters which could be proved easily and
with certainty

B. Admissions
Section 17 - Admissions defined generally
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 are generally classified into two:

a. Formal admissions
Made in the context of specific proceedings and their effect is that they dispense with proof with
regard to the matters admitted.
b. Informal admissions
Made before any proceedings are anticipated

Formal admissions are made with respect to proceedings while informal admissions are made with
respect to anticipated proceedings.
Formal admissions must be in court documents, oral admissions are not formal admissions.

Ways of formally admitting

a. Express admissions on the pleadings
b. By default pleading
c. By failure to traverse it in the pleading
d. By letter written by legal advisor prior to the trial
e. In answer to a notice to admit under Order 12 of the CPR
f. By affidavit in answer to admit an interrogatory

Once you admit certain facts, you will not be required to prove those facts but the court may by
discretion require those facts to be proved.
Section 61 - Facts admitted in civil proceedings
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.
The section does not apply to criminal cases. The prosecution cannot be relieved of the burden of
proving facts which constitute offences by admissions, as opposed to the plea of guilty, of a
particular fact by the accused.

Order 12 of the Civil Procedure Rules:

Any party seeking the admission of a certain fact or facts in issue a notice to admit to his opponent,
who responds by way of a notice of admission or non-admission.
A party may use an admission as the foundation for an application for judgement

Section 24 - Effect of admissions

Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels
under the provisions hereinafter contained.
The idea of estoppel in admissions is to prevent a person from asserting things that are at variance
with things they had admitted before

In criminal cases, a plea of guilt amounts to an admission of the offence charged

Section 207 of the Criminal Procedure Code:
If the accused admits the truth of the charge, his admission will be recorded as nearly as possible in
the words used by him. The court shall then convict him and proceed to sentence him.
Such an admission is not only conclusive in those proceedings, but also for the purpose of any
subsequent proceedings such as an appeal or retrial.

Admission by Conduct
This will be inferred from positive acts or from demeanour e.g silence after direct accusation
A party’s admission by conduct as to any material fact may be generally proved against that person
and evidence to explain or rebut such admission is receivable in their favour.

C. Presumptions
Courts can also pronounce itself through presumptions on a position notwithstanding the fact that
no evidence has been adduced to support it.
Sarkar J: Presumptions - Inference, affirmative or disaffirmative, of the existence of some facts,
drawn by the judicial officer by a process of reasoning from some matter of fact either judicially
noticed, admitted or established legal evidence to the satisfaction of the court.

Effect: Placing on the other side the burden of proof in relation to a fact or a fact in issue, regardless
of where the burden of proof lies. The other party will thereby be expected to produce evidence to
overcome the presumption in question.
A presumption may be drawn in the absence of evidence to the contrary.

Categories of Presumptions
Presumptions of law derive their force from law, while presumptions of fact derive their force from
common sense and logic.
Presumptions of law apply to a class, the conditions of which are fixed and uniform, while a
presumption of fact applies to individual cases, the conditions of which are inconsistent and
fluctuating.
Presumptions of law are made by court, and in the absence of opposing evidence, are conclusive for
the party in whose favour they operate and for the purpose for which they operate, while
presumptions of fact result in inferences drawn by the court of fact which it may disregard, however
cogent.

I. Presumptions of Facts
They are discretionary inferences which may be drawn upon the establishment of a basic fact.
A fact may be presumed upon proof of a basic fact and in the absence of sufficient evidence to the
contrary.
They may be said to amount to circumstantial evidence.
Examples: Presumption of intention, guilty knowledge and continuation of life

Re W
A presumption was drawn to the effect that a baby’s best interests are served by being with the
mother.

Section 4 - Presumptions of fact

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.
3. When one fact is declared by law to be conclusive proof of another, the court shall, on proof
of the one fact, regard the other as proved, and shall not allow evidence to be given for the
purpose of disproving it.

a. Presumption of guilty knowledge

Under the doctrine of recent possession, a person who is in possession of stolen goods after theft
and cannot give account of those goods is presumed to have stolen them, or is knowingly possessing
stolen goods.
Zus v Uganda (1976)

b. Presumption of likely facts or immutability of things

Section 119 - Presumption of likely facts
The court may presume the existence of any fact which it thinks likely to have happened, regard being
had to the common course of natural events, human conduct and public and private business, in their
relation to the facts of the particular case.
It is also known as the presumption of continuance, i.e, any proven state of affairs may be
assumed to have continued for some time or duration depending on the circumstances of each and
every case.

Kanji & Kanji v R (1961)

A sisal employee’s arm was amputated by a sisal machine in April 1960. An examination by Mr.
Perkins in September 1960 showed that there was no barrier or fence to protect employees when
feeding the machine with sisal leaves.
The firm was held liable to provide ample barriers to protect employees from the machine.
On appeal, the factory owner argued that there was a fence at the conveyor belt when the accident
occurred in April 1960. The barrier was not found in place in September when Mr. Perkins did his
inspection.
Held: The magistrate was correct in presuming that the machine was in the same condition oin April
as it was in September 1960. It was unlikely that there was a barrier in April which disappeared by
September, but the owners were welcome to bring evidence to prove that there had been a barrier
in April.
DPP v Nathani (1966)

c. Presumption of regularity
This is the presumption that the official and judicial acts are performed regularly.
It is based on sound public policy which imputes good faith on official and judicial conduct.
The burden is on he who alleges irregularity to bring evidence to disprove or establish irregularity.
The issue of negligence in courts and other official set-ups is however a big challenge on this

d. Presumption that the common course of business was followed

The basis of this presumption is business practice.
If a business has been carried out pursuant to that common course, it is going to be presumed to be
so, unless a person alleging otherwise brings evidence to the contrary.

e. Presumption that evidence which was to be produced and is withheld, if produced,

would be unfavourable to the person withholding it
If anyone withholds evidence, it would be presumed that the person withholding the evidence is
doing so because it is against them.
It is incumbent on the person withholding the evidence to show that it is not so.

f. Presumption that accomplices are unworthy of credit and that their evidence should
not be used to convict unless it is corroborated
Accomplices are part of a group of witnesses who are held suspect.
Reasons:
- An accomplice is a participant in the offence
- Such a person will be highly tempted to “pass the buck”
- Having participated in the commission of the offence, an accomplice is generally an immoral
person and their word should not be taken without corroboration
- An accomplice is likely to favour the state in hope for a pardon

II. Presumptions of Law

A. Rebuttable presumptions of Law
These are inferences that may be drawn in the absence of conclusive evidence to the contrary.
To rebut this presumption, one needs to provide conclusive evidence.
Section 4(2) - Presumption of fact
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.
Section 85 -
Examples:
- Presumption of Innocence
- Presumption of Sanity [Section 11 of the Penal Code - all persons are presumed to be of
sound mind, and the Court is entitled to presume the continuance of this state of affairs until
the contrary is proved.]

a. Presumption of death
The court may be called upon to infer the fact of death from circumstantial evidence.
Such a conclusion may be reached by the application of logic and known facts.
It is based on the length of time of the absence of the person presumed to be dead.

Section 118A - Presumption of Death

Where it is proved that a person has not been heard of for seven years by those who might be
expected to have heard of him if he were alive, there shall be a rebuttable presumption that he is
dead.
Factors:
- There are people who would be likely to have heard from the person in that period
- That the persons have not heard from the person; and
- All due enquiry has been made as appropriate in the circumstances

b. Presumption of marriage
1. Presumption of formal validity
The formal validity of a marriage is dependent on the law of the place of celebration i.e lex loci
celebrationis
One must therefore comply with the laws of the place of celebration, failure to which the marriage
will be invalid on the ground of non-compliance with the law
If the parties had the capacity to contract a marriage, then the law presumes that they were validly
married.

2. Presumption of essential validity

Essential validity of a marriage captures aspects such as capacity.
A marriage may be declared void if the parties had no capacity to marry at the time of the marriage.
If it is proved that a marriage is formally valid, it will then be presumed that it is essentially valid in
the absence of evidence to the contrary.

3. Presumption of marriage by cohabitation

When a man and a woman live together, holding out together as husband and wife, and the society
regards them as such, the law presumes after such cohabitation, the couple is married.

Case v Ruguru (1970)

The plaintiff, a white man, was cohabiting with the defendant and after a while the relationship
became sour. The plaintiff sued for eviction of the defendant on grounds of inter alia, trespass. To his
ais, the plaintiff called evidence that he had been married to a white woman in 1966 and the
marriage had not been dissolved. He admitted having lived with the defendant for some time, and
having paid dowry of ksh. 3000. Evidence showed that the ksh. 3000 was not dowry, and that no
ram had been slaughtered.
Held: As a mere licensee, the defendant was liable for eviction for trespass

Hottensiah Wanjiku Yawe v Public Trustee, CA 12 0f 76

Yahweh, a Ugandan resident in Nairobi was killed in a road accident in Uganda 1972. He was a pilot
with the then East African Airways and lived in Nairobi West. After his death, the appellant, Wanjiku
Yawe, claimed to be his widow and claimed that they had 4 children together. The Ugandan relatives
of the deceased claimed that she was not his wife and that the deceased was not married. Evidence
was adduced showing that the deceased lived with the appellant as a wife and that he had named
the appellant as a wife in his work papers. Further, the two were reputed as husband and wife and
had cohabited as such for more than nine years.
Held: Long cohabitation as husband and wife gives rise to a presumption of marriage and only
cogent evidence to the contrary could rebut such a presumption.

Evidence of cohabitation must be led, meaning, doing things which ordinarily can only be done by a
husband and wife, e.g living under one roof, having children together, and buying property together.
Mary Njoki v John Kinyanjui:
The CoA emphasised that before a presumption of marriage is drawn on cohabitation, cogent
evidence must be led.
“Woe unto those men who do things which ordinarily should be done between a man and wife for when
the presumption of cohabitation arises, the presumption of marriage sets in.”

c. Presumption of negligence
Negligence will be presumed if the circumstances of a case show that in the ordinary course of the
event, it does not happen if those in charge exercise proper care and due diligence.
This is also known as the doctrine of res ipsa loquitur.
The presumption is invoked where the plaintiff sufferers damages in consequence of one or more
actions under the executive control of the defendant or his servant.
It provides that in some circumstances, the mere fact of an accident’s occurrence raises an inference
of negligence so as to establish a prima facie case.
When the doctrine is pleaded, the conditions precedent to the applicability of the doctrine must
be proved. Once this is done, all the other facts need not be proved.

B. Irrebuttable presumptions of law

These are also known as conclusive presumptions
Section 4(3) - Presumption of facts
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.
These presumptions must be drawn on proof of a basic fact showing the occurrence or existence of
the presumed fact.
- Examples
● Section 14 of the Penal Code - It is presumed that a child under the age of 8 years is
incapable of committing a criminal offence.
Therefore, once the age of the child has been proven to be under 8 years, then the law
requires a conclusive inference to be drawn that a child is incapable of committing an
offence.
● At common law, the presumption of legitimacy was regarded as a rebuttable presumption
stating that a child born within the subsistence of a marriage is deemed to be the child of the
husband - Section 118.
Facts covered under the irrebuttable presumption of law need not be proved in evidence. Once the
basic fact has been proved, then the presumed fact is also deemed to have been proved.

Effects of the presumptions

1. Presumptions shift the burden of proof so that the person in whose favour the
presumption is made has nothing to prove, and the person against whom it operates, has the
burden to adduce evidence in rebuttal.
This is so especially so when the presumption is rebuttable so that the effect thereof is to discharge
the burden of proof with respect to the presumed fact.
2. Presumptions also have the effect of reducing the time it would take proving certain
matters. Certain matters are known to everyone and it would be a waste of time to discuss
that in court. This saves the court’s time.
ILLEGALLY/IMPROPERLY OBTAINED EVIDENCE

Evidence may be obtained illegally by a crime, tort (e.g trespass to the person - extracting saliva;
trespass to property), breach of contract or contravention of statute, e.g illegal searches and
seizures
Evidence may be obtained improperly or unfairly by trickery, deception, threats, bribes,
inducement or phone tapping.

Two contending views:

- Admission of all relevant evidence to ensure that the guilty are punished
- That admitting illegally obtained evidence condones and encourages impropriety on the
part of the police

There are different approaches to illegally obtained evidence:

1. Mandatory Inclusion
Position at common law is that “it matter not how you get it; if you steal it even, it would be
admissible in evidence” per Crompton J in R v Leatham (1861)
However, there is an exception where the evidence consists of a confession (obtained through
inducement or oppression) and in relation to privileged documents.
Before the Civil Procedure Rules (1998), a judge did not have discretion in civil cases to exclude
admissible evidence.
CPRs allow exclusion to give discretion to the overriding objective of enabling the court to deal
with cases justly.

In Lloyd v Mostyn (1842), the test is whether the evidence is relevant to the matters in issue
irrespective of how it was obtained.

In R v Sang (1980), judicial discretion to exclude admissible evidence does not extend to excluding
evidence of a crime on grounds that it was instigated by an agent provocateur.
Court stated that:
a. “The court is not concerned with how evidence sought to be adduced by the prosecution has
been obtained, but with how it is used by the prosecution at the trial…”
b. Thus a “judge has discretion to exclude prosecution evidence where its prejudicial effect
outweighs its probative value”
c. Except in the case of admissions, confessions and evidence obtained from the accused after
commission of the offence, a judge has no discretion to refuse to admit admissible evidence
on the grounds that it was obtained improperly or unfairly.

Kuruma s/o Kaniu v R (1955); King v R (1969); R v Payne (1963); Jeffrey v Black (1978)
 2. Mandatory Exclusion
The exclusionary rule is grounded in the 4th amendment in the Bill of Rights of the US
Constitution to protect citizens from illegal searches and seizures.
The 4th Amendment states thus:
“The right of people to be secure in their persons, houses, papers and effects, against unreasonable
searches and seizures, shall not be violated and no warrants shall issue but upon probable cause,
supported by oath or affirmation, and particularly describing the place to be searched, and the persons
or things to be seized.”

Since most evidence in criminal cases nowadays involve new surveillance technology or personal
data from smartphones, social media companies or internet-service providers, exclusion of
evidence can occasion:
- Acquittal of a criminal; or
- Inhibition of the work of police

3. Kenyan Approach
The legal position is not settled
Article 50(4) of the CoK: “Evidence obtained in a manner that violates any right or fundamental
freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the
trial unfair, or would otherwise be detrimental to the administration of justice.”
Implications of Article 50(4):
1. Generally, evidence obtained in a matter that violates the Bill of Rights is excluded (test of
illegality/impropriety)
2. Evidence obtained in a manner that does not violate the Bill of Rights is admissible
3. IOE is excluded if its admission would render the trial unfair
4. IOE is excluded if it would be detrimental to the administration of justice
5. IOE may be admissible, if it does not render the trial unfair or detrimental to the
administration of justice

The manner of obtaining evidence can violate the Bill of Rights if:
a. It is obtained through torture and cruel, inhuman or degrading treatment or punishment
(Article 29)
b. It violates the right to privacy (Article 31), which requires:
- Their person, home or property not to be searched
- Their possession not to be seized
- Information relating to their family or private affairs not to be unnecessarily
required or revealed
- The privacy of their communications not to be infringed
c. An arrested person is compelled to make any confession or admission that could be used in
evidence against him/her [Article 49(1)(d)]
Sections 118-121 of the Criminal Procedure Code provides that any search or seizure without a
warrant is illegal
However, Section 20 of the Police Act gives police the power to search any house or vehicle which
they suspect of having useful evidence without a warrant

Judicial Approach
Some courts have said that the overriding considerations when considering admissibility of IOE
whether it is relevant.
Nicholas Randa Owano Ombija v Judges and Magistrates Vetting Board (2015)
The court admitted the appellant's replying affidavit despite the claim that its contents were
illegally obtained.
“There is no doubt that the documents relating to the appellant’s vetting of September 2012 are
relevant as his case hinges on them. Common law principles show that evidence, if relevant, is
admissible even if it has been illegally obtained. The case of Karume v Queen, though a criminal case,
shows that common law principles developed in criminal law cases apply in civil cases.”
**Bad law

John Muriithi & 8 others v Registered Trustees of the Sisters of Mercy (2018)
Respondents wanted certain documents expunged from the claimant’s list as some of the claimants
did not attend trustees’ meetings and thus could not have accessed or acquired them lawfully in the
course of his employment.
The ELRC (Wasilwa J):
“In Kenya, illegally obtained evidence is admissible so long as it is relevant to the fact in issue or its
admission would not affect the fairness of the trial.
In determining whether to allow evidence being sought to be expunged, I am guided by the fact that
the primary duty of this Court is to do justice. If justice will be done using available documents and
evidence not obtained in breach of the Constitution and the law, then the court will admit such
evidence in order to have the right resources before it to enable the determination of the issue in a just
matter.”
**Bad law

United Airlines Limited v Kenya Commercial Bank Ltd (2017)

The court rejected that IOE is admissible in criminal law as long as it is relevant.
“As submitted by learned counsel for the respondent, illegally obtained evidence was for a long time
admissible in criminal law as long as it was relevant [see Karuma s/o Kaniu v R (1955)]. However, the
CoK 2010 has now shifted the paradigm and Article 50(4) of the Constitution now disallows such
evidence…
…the Kuruma case (supra) is therefore no longer good law. This article nonetheless applies to criminal
law and not to civil law, as it succinctly refers to ‘trial’ as opposed to suit, and also relates to rights of
an accused person. Admissibility of documentary evidence is explicitly provided for under the Evidence
Act.”
Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others (2020)
The COA observed that the decision in United Airlines Ltd, that Article 50(4) of the CoK applies only
to criminal law and not civil law is doubtful. According to the COA, Article 50 deals generally with
‘fair hearing’, e.g in Article 50(1), reference is made to ‘every person’ as having the right to a fair
hearing.
The Court may reject IOE irrespective of whether it is in connection with a civil or criminal trial.

Njonjo Mue & another v Chairperson of Independent Electoral & Boundaries Commission
(2017) - Supreme Court
“Having found that there are procedures provided for under the law through which any person who
seeks to access information should follow, the question that follows is; what happens where a person
‘unlawfully’ or ‘improperly’ obtains any information held by an entity.” Can a court of law admit such
evidence… We also recognise that information held by the State or State organs, unless for very
exceptional circumstances, ought to be freely shared with the public. However, such information should
flow from the custodian of such information to the recipient in a manner recognised under the law
without undue restriction to access of any such information… Further, a duty has also been imposed
upon the citizen(s) to follow the prescribed procedure whenever they require access to any such
information. This duty cannot be abrogated or derogated from, as any such derogation would lead to a
breach and/or violation of the fundamental principles of freedom of access to information provided
under the constitution and the constituting provisions of the law. It is a two way channel where the
right has to be balanced with the obligation to follow due process…

The petitioners, using the above test, do not show how they were able to obtain the internal memos
showing communication between employees and the 2nd respondent. Further it has been alleged that
these memos have only been shown in part, and taken out of context to advance the Petitioners’ case
against the 1st and 2nd respondents, and to an extent, the 3rd respondents. No serious answer has been
given to that contention. The use of such information before the Court, assessed without following the
requisite procedures, not only renders it inadmissible but also impacts on the probative value of such
information. This is the point of divergence between the instant matter, and the case of Nicholas
Ombija (supra). In the present instance, there has been a clear violation of laid out procedures of law
attributable to access of information, and violation of the right to privacy and protection of property
that the 2nd respondent is guaranteed under the Constitution and Section 27 of the IEBC Act. This is
because the limitation imposed by both Article 50(4) and Section 27 aforesaid squarely apply to the
matter before us.”
PUBLIC POLICY/INTEREST
1. A party to litigation has an interest in the admission of any and every item of evidence which
supports his case or defeats his opponent’s case.
This interest coincides with the public interest that justice should be done between litigants
by the reception of all relevant evidence.
2. There is a public interest that sometimes impels the withholding of evidence, especially
where its disclosure word harms a competing public interest that is considered more
important than the administration of justice between the litigants who are before the court.

When relevant and admissible evidence is withheld/excluded after the considerations of these two
conflicting interests, the evidence is said to be withheld/excluded by reason of public
interest/policy.
General rule: Evidence must be excluded if its reception would injure the public interest.

Meaning of public interest

There is no exhaustive definition or exhaustive list of circumstances when the adduction of evidence
will be precluded on grounds of public policy.
Generally, a document will be precluded from disclosure on grounds of public interest if:
- It belongs to a class of documents which by their nature ought to be withheld from
production
- It’s contents are of such a nature that the document ought to be withheld from production

Section 131 outlines requirements to be complied with when the state claims public interest:
1. Statement on oath by Cabinet Secretary that he has examined the contents of a
document forming part of any unpublished official record
2. Statement of opinion that production would be prejudicial to the public service
3. Statement of reason, either based on the content thereof or fact that it belongs to a class
which on the grounds of public policy should be withheld from production

Section 131 - Privilege relating to public records

“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.”
Section 132 - Privilege of official communications
“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.”

A minister’s certificate is not final, as PI is a question of law for court’s determination.

Christ for all Nations v Apollo Insurance Co. Ltd (2002)

Arbitration decision taken to court
Ringera J:
“... (a) Inconsistent with the constitution or other laws of Kenya, whether written or unwritten, or (b)
inimical to the national interest of Kenya; 0r (c) contrary to justice or morality. The first category is
clear enough. In the second category I would, without claiming to be exhaustive, include the interest of
national defence and security, good diplomatic relations with friendly nations, and the economic
prosperity of Kenya. In the third category, I would, again, without seeking to be exhaustive, include
such considerations as whether the award was induced by corruption or fraud or whether it was
founded on a contract contrary to public morals.”

Public Interest means matters affecting the welfare of the state or the rights, health, or finances of
the general public - Witness Protection Act, 2006

Article 35 of the CoK - Access to Information

“1. Every citizen has the right of access to:
a. information held by the State; and
b. information held by another person and required for the exercise or protection of any right
or fundamental freedom.
2. Every person has the right to the correction or deletion of untrue or misleading information that
affects the person.
3. The State shall publish and publicise any important information affecting the nation.”

Access to Information Act (2016)

Section 6(1) - Limitation of the right of access to information
1. Pursuant to Article 24 of the Constitution, the right of access to information under Article 35
of the Constitution shall be limited in respect of information whose disclosure is likely to—
a. undermine the national security of Kenya;
b. impede the due process of law;
c. endanger the safety, health or life of any person;
d. involve the unwarranted invasion of the privacy of an individual, other than the
applicant or the person on whose behalf an application has, with proper authority,
been made;
e. substantially prejudice the commercial interests, including intellectual property
rights, of that entity or third party from whom information was obtained;
f. cause substantial harm to the ability of the Government to manage the economy of
Kenya;
g. significantly undermine a public or private entity's ability to give adequate and
judicious consideration to a matter concerning which no final decision has been
taken and which remains the subject of active consideration;
h. damage a public entity's position in any actual or contemplated legal proceedings; or
i. infringe professional confidentiality as recognized in law or by the rules of a
registered association of a profession.
2. For purposes of subsection (1)(a), information relating to national security includes —
 a. military strategy, covert operations, doctrine, capability, capacity or deployment;
b. foreign government information with implications on national security;
c. intelligence activities, sources, capabilities, methods or cryptology;
d. foreign relations;
e. scientific, technology or economic matters relating to national security;
f. vulnerabilities or capabilities of systems, installations, infrastructures, projects,
plans or protection services relating to national security;
g. information obtained or prepared by any government institution that is an
investigative body in the course of lawful investigations relating to the detection,
prevention or suppression of crime, enforcement of any law and activities suspected
of constituting threats to national security;
h. information between the national and county governments deemed to be injurious
to the conduct of affairs of the two levels of government;
i. cabinet deliberations and records;
j. information that should be provided to a State organ, independent office or a
constitutional commission when conducting investigations, examinations, audits or
reviews in the performance of its functions;
k. information that is referred to as classified information in the Kenya Defence
Forces Act; and
l. any other information whose unauthorised disclosure would prejudice national
security.

Section 49 of the Kenya Defence Forces Act - Classified Information:

Information whose unauthorised disclosure would prejudice national security and includes
information on doctrine, strategy, capability, capacity and deployment.
Categories of classified information:
a. Top secret - information whose unauthorised disclosure would cause exceptionally grave
damage to national security
b. Secret - information whose unauthorised disclosure would cause serious injury to national
security
c. Confidential - information whose unauthorised disclosure would be prejudicial to the
interest of the State
d. Restricted - information which requires security protection other than that determined to
be top secret, secret or confidential

Scope of Exclusion of Evidence

1. National defence and security
Article 238(1) of the CoK:
“National security is the protection against internal and external threats to Kenya’s territorial
integrity and sovereignty, its people, their rights, freedom, property, peace, stability and prosperity,
and other national interests.”
 2. Good diplomatic relations and international comity
Diplomatic dispatches

3. Economic prosperity / interests of the country

4. Crime detection
Public interest to protect the identity of informers and whistle blowers, not only for their safety,
but also to ensure that the supply of information about criminal activities does not dry up
Court decides what should be withheld from disclosure not prosecution or police

5. Judicial disclosures
Judges cannot be compelled to give evidence as to their conduct as judges or as to anything which
came to his knowledge in court; but can be examined on other matters which occurred in his
presence while acting as judge
Section 129 - Privilege of court
“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.”
Judicial officers cannot be asked questions about the reasons for their judgements/awards
Where a litigant wishes to prove what was said in earlier litigation, the court record and a properly
proved transcript, where available, is usually the best method of proof.
Judges can be compelled to give evidence with regard to occurrences at the proceedings before
them.

6. Proper functioning of the public service

7. Confidential relationships
Certain confidences ought to be respected e.g doctor-patient, journalist-source, priest-penitent
A journalist should identify their sources whenever possible unless it is in the PI to use confidential
sources - Sections 4, 7, 8 of the Code of Conduct for the Practice of Journalism

Duncan & another v Cammell Laird & Co. Ltd (1942)

The submarine Thetis sank and killed 99 persons. A suit for negligence was brought against the
government contractors who had built the submarine. The plaintiffs sought discovery and
inspection of certain documents on the design of the submarine. The Board of Admiralty directed
the defendants to object to the production of the documents to an agent of a foreign power at a time
when the country was at war.
Held:
1. A court of law should uphold an objection taken by a public department called on to
produce documents in a suit between private citizens, if on the grounds of public policy
they ought not to be produced.
 2. Documents otherwise relevant and liable to production must not be produced if the public
interest requires that they should be withheld.
3. The test (whether the documents should be withheld) may be found satisfied either:
- By having regard to the contents of the particular documents; or
- By the fact that the document belongs to a class which, on grounds of public interest
must be withheld from production
4. It is essential that the decision to object should be taken by the minister who is the political
head of the department concerned and that he should be seen and considered the contents
of the documents and himself formed the view that on grounds of public interest, they
ought not to be produced.
5. An objection validly taken to production on the ground that it would be injurious to the
public interest is conclusive
6. The mere fact that the minister or the department does not wish the documents to be
produced is not an adequate justification for the objection to their production
7. Objection should only be upheld when the public interest would otherwise be damned, as
where disclosure would be injurious to national defence or to good diplomatic relations,
or where the practice of keeping a class of documents secret is necessary for the proper
functioning of the public service.
8. When the Crown is a party to a suit, discovery of documents cannot be demanded by the
other party as of right, although in practice, for reasons of fairness and in the interest of
justice, all proper disclosure and production would be made.

Asiatic Petroleum Co Ltd v Anglo-Persian Oil Co. Ltd (1916)

The defendants, acting on instructions from the Board of Admiralty, objected to the production of a
letter to their agents containing information concerning the government’s plans in respect of its
campaign in Persia during the 1st World War.
Held:
Objection upheld, not because the document was confidential or official, but because the
information which it contained could not be disclosed without injury to the public interest.

Re Grosvenor Hotel, London (No.2) (1965)

The British Railway Board, respondents to an application for a grant of a new lease of business
premises, opposed the garnet of a new tenancy on the ground that they intended to occupy the
holding for the purposes of a business to be carried on by them therein. The Minister stated in an
affidavit that he had personally examined and considered the documents, and formed the view that
they belonged to a class of documents, which ‘on grounds of public interest’ ought to be withheld
from production.
Held:
1. (Lord Denning M.R and Salmon L.J) The objection of a Minister to the production of a class
of documents was not conclusive
 2. (Lord Denning M.Rand Salmon L.J) If the court was of the opinion that the objection was not
taken in good faith, or that there were no reasonable grounds for the claim of privilege, it
would override the objection and order production, but that residual power of the court
would only be exercised in exceptional and rare cases
3. (Lord Denning M.R) The court can, if it thinks fit, call for the documents and inspect them
itself so as to see whether there are reasonable grounds for withholding them; ensuring, of
course, that they are not disclosed to anyone else.
4. (Lord Denning M.R) It is rare for the court to override the Minister’s objection, but it has
the ultimate power, in the interests of justice, to do so. It is the judges who are the
guardians of justice in this land.
5. (Salmon L.J) The residual power of the court to override the executive where Crown
privilege is claimed for a class of documents would be used very sparingly, but it is useful
and necessary power, and should not be abdicated if the courts are to preserve their
function of protecting the vital interest of the public in seeing that justice is done.

Conway v Rimmer (1968)

Conway overruled the decision of Duncan v Cammell Laird & Co. Ltd
PRIVILEGE
The legal right of a person to refuse to testify in a certain matter or to produce a certain item as
real evidence in a given proceeding.

Categories of Privilege
1. Privilege against self incrimination
This is an inalienable fundamental right

Constitution of Kenya:
Article 49(1)(b) - An arrested person has the right to remain silent
Article 49(1)(d) - An arrested person has the right not to be compelled to make any confession or
admission that could be used in evidence against the person
Article 50(2)(i) - Every accused person has the right to a fair trial, which includes the right to
remain silent, and not to testify during the proceedings.
Article 50(2)(l) - Every accused person has the right to a fair trial, which includes the right to
refuse to give self incriminating evidence

Blunt v Parklane Hotel (1942):

“The rule is that no one is bound to answer any question if the answer would, in the opinion of the
judge, have the tendency to expose him to any criminal charge/penalty or forfeiture which the judge
regards as reasonably likely.”

Section 128 - Compellability of ordinary witnesses

“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.”
Section 128 applies and the witness will be compelled to answer all questions relevant to matters in
issue in both criminal and civil cases even if the answers would incriminate the witness or accused
person. This is the only protection for witnesses against future arrest or criminal prosecutions
based on the answers (except for perjury).

Section 138 - Title deeds and incriminating evidence in the hand of third parties
“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 the person seeking the production of such deeds or document, or with some person through
whom he claims, to produce them.”

Section 157(3) - Discretion of court to compel witnesses to answer question as to credit

“The court may, if it sees fit, draw from the witness’s refusal to answer, the inference that the answer,
if given, would be unfavourable to the witness.”
The privilege against self incrimination is lost once a witness or an accused person volunteers to
become a witness.

2. Spousal privilege
Section 130 - Communications during marriage
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
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) of this Act.
The privilege protects the right to confidentiality of communication within marriage
A spouse is therefore not a competent witness for the prosecution
Privilege extends to polygamous and customary marriages.
** Question: In a polygamous marriage, does it bind a man and each wife, or a man and all his wives?

Exceptions:
Privilege is personal to spouses and does not attach to the communication itself. Third parties are
therefore compellable.
Rumping v DPP (1964)
A letter written by the accused to his wife, which amounted to a confession to the murder with
which he was charged, could be put in evidence by the prosecution, it having been handed over to
the police by a person to whom it had been entrusted for posting.
N.B: The letter would have been privileged, had it reached the wife’s hands, as a matrimonial
communication.

Privilege is lost if the spouse against whom testimony is to be given consent to disclosure or in
circumstances in Section 127(3).
Section 127 - Competency of parties and spouses
“(3) In criminal proceedings the wife or husband of the person charged shall be a competent and
compellable witness for the prosecution or defence without the consent of such person, in any case
where such person is charged—
a. with the offence of bigamy; or
b. with offences under the Sexual Offences Act (No. 3 of 2006); or
c. in respect of an act or omission affecting the person or property of the wife or husband of
such person or the children of either of them, and not otherwise.”

3. Legal Professional Privilege

A client and his advocate cannot be compelled to disclose details of their communication.
It is the privilege of the client.
Section 134 - Privilege of advocates
1. No advocate shall at any time be permitted unless with his client’s 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) of this section shall continue after the employment of
the advocate has ceased.
Section 137 - Communications with an advocate
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 known in
order to explain any evidence which he has given, but no others.

The justification for the Advocate/Client Privilege was captured in Grant v Downs (1976):
“It assists and enhances the administration of justice by facilitating the representation of clients by
legal advisers… thereby inducing the client to retain the solicitor and seek his advice and encourages…
full and frank disclosure of the relevant circumstances to the solicitor.”
Privilege is regarded as an essential ingredient of the right to a fair trial.

Omari s/o Hassan v R (1956)

Legal Professional Privilege can be classes into:

a. Litigation Privilege
Arises after litigation or other adversarial proceedings have been commenced or are
contemplated
All documents that are produced for the sole purpose or dominant purpose of the contemplated
or ongoing litigation are privileged.
Cover communication between:
- Client and advocate
- Client and 3rd parties
- Advocate and 3rd parties with reference to the ongoing or contemplated litigation
The communication must have been made with the dominant purpose of litigation

Waugh v British Railways Board (1979)

b. Legal Advice Privilege

Communications between an advocate and a client, in the course of seeking and giving advice within
the normal scope of legal practice, are privileged in all cases, at the instance of the client.
It covers written and oral communication and includes documents evidencing such communication.

Morgan Grenfell & Co Ltd v Special R Commissioner of Income Tax (2003)

“Legal Professional privilege… is a necessary corollary of the right of any person to obtain skilled
advice about the law. Such advice cannot be effectively obtained unless the client is able to put all the
facts before the advisor without fear that they may afterwards be disclosed and used to his prejudice.”

**‘Without Prejudice’ privilege

Oral/written communications made with the intention of seeking a settlement are privileged
from disclosure.
Rule supports and encourages negotiations by removing potential embarrassment of concessions
made in negotiations being used against the party who made them in trial.
Grounded on the policy that parties agree not to be bound until negotiations end in a mutually
acceptable compromise.
The privilege outlives the proceedings to which the subject correspondence or documents relate
The rule applies even if the words “without prejudice” are not used, as long as the purpose of the
communication is to seek settlement
Parties must make it clear when the ‘without prejudice’ basis of the communications comes to an
end.
‘Without prejudice’ negotiations that result in settlement are admissible to prove the terms of
settlement.
If no settlement is reached, ‘without prejudice’ communications are inadmissible.

Rush & Tompkins Ltd v Greater London Council (1989)

Waiver of Privilege
LPP belongs to the client and may be expressly waived by him
A party is deemed to have waived privilege by calling the Advocate, interpreter, clerk, or servant as a
witness, and questions them on privileged matters
Section 136 - Waiving of privilege of advocates etc
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) of this Act.
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) of this Act only if he questions such witness on matters which, but for such question,
the witness would not be at liberty to disclose.
Privilege attached to ‘without prejudice’ communications belong to both parties and can only be
waived if both parties consent.
COMPETENCE AND COMPELLABILITY
Competence - capability of a witness to be called to give evidence.
All persons are competent to testify unless they are, in the opinion of the court:
- Unable to understand the questions put to them
- Unable to give rational answers to those questions owing to tender years, extremely old age,
disease of the mind or body, or any other such causes
Section 125 - Competency generally
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.
2. A mentally disordered person or a lunatic is not incompetent to testify unless he is prevented
by his condition from understanding the questions put to him and giving rational answers to
them.

Compellability - witnesses can be obliged to testify

All competent witnesses are compellable except for the following:
a. Children of tender years
b. Persons of defective intellect
c. Spouses
d. Person with statutory immunity
If a compellable witness refuses to be sworn, ignores a witness summons, refuses to testify or
produce a document, court can adjourn for 8 days and commit him to prison
Criminal Procedure Code, Section 152 - Refractory witnesses
1. Whenever a person, appearing either in obedience to a summons or by virtue of a warrant,
or being present in court and being verbally required by the court to give evidence—
a. refuses to be sworn; or
b. having been sworn, refuses to answer any question put to him; or
c. refuses or neglects to produce any document or thing which he is required to produce; or
d. refuses to sign his deposition,
without offering sufficient excuse for his refusal or neglect, the court may adjourn the case
for any period not exceeding eight days, and may in the meantime commit that person to
prison, unless he sooner consents to do what is required of him.
2. If the person, upon being brought before the court at or before the adjourned hearing, again
refuses to do what is required of him, the court may again adjourn the case and commit him
for the same period, and so again from time to time until the person consents to do what is so
required of him.
3. Nothing contained in this section shall affect the liability of any such person to any other
punishment or proceeding for refusing or neglecting to do what is so required of him, or shall
prevent the court from disposing of the case in the meantime according to any other
sufficient evidence taken before it.

Spouses
Section 127 - Competency of parties and spouses
 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) of this section, 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.
3. In criminal proceedings the wife or husband of the person charged shall be a competent
and compellable witness for the prosecution or defence without the consent of such
person, in any case where such person is charged—
a. with the offence of bigamy; or
b. with offences under the Sexual Offences Act (No. 3 of 2006);
c. in respect of an act or omission affecting the person or property of the wife or
husband of such person or the children of either of them, and not otherwise.

Accused person’s spouse can only be permitted to testify against another where the deceased is a
spouse of the accused, or is their child.
** The English is not Englishing. I suppose, from the case below, that what was meant was:
“Accused person’s spouse can only be permitted to testify against their spouse (the accused)
where the deceased is their child, or is related to either spouse.”
R v Maxwell Mwaingolo (2021): The wife was incompetent to testify (against the husband) since
the deceased was the wife’s brother.

Judicially separated spouses? Cohabitees? Former spouses?

Section 127(4) defines a husband and a wife to mean “the husband and wife of a marriage, whether
or not monogamous, 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 could means that former spouses are not encompassed by this provision, except during
the tenure of the marriage (and on matters that occurred during that tenure)
- Judicially separated spouses are still married. The marriage has not been dissolved.
- Cohabitees are not bound by this provision unless the court is satisfied that the presumption
of marriage applies to them.

Children
Need for preliminary inquiry (voir dire or trial within a trial) -
Section 19 of the Oaths and Statutory Declarations Act, Cap. 15 - Evidence of Children of tender
years
 1. Where, in any proceedings before any court or person having by law or consent of parties
authority to receive evidence, any child of tender years called as a witness does not, in the
opinion of the court or such person, understand the nature of an oath, his evidence may be
received, though not given upon oath, if, in the opinion of the court or such person, he is
possessed of sufficient intelligence to justify the reception of the evidence, and understands
the duty of speaking the truth; and his evidence in any proceedings against any person for
any offence, though not given on oath, but otherwise taken and reduced into writing in
accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be
a deposition within the meaning of that section.
2. If any child whose evidence is received under subsection (1) wilfully gives false evidence in
such circumstances that he would, if the evidence had been given on oath, have been guilty of
perjury, he shall be guilty of an offence and liable to be dealt with as if he had been guilty of
an offence punishable in the case of an adult with imprisonment.

The court finds out whether the child understands the nature of the oath i.e, what are the
consequences for telling lies or telling the truth e.g when you tell lies you go to hell
- If a child understands the nature of the oath, the child may be sworn
- If a child does not understand the nature of an oath, the court must satisfy itself that the
child appreciates the duty of telling the truth and can give sensible answers to the question.
In that case, the child will be affirmed.
The court records that that has been done.

What is a child of tender years?

Patrick Kathurima v R (2015)
The term ‘tender years’ was given a wide meaning and not limited to the 10 years as stipulated
under the Children Act.

Corroboration of evidence of children of tender years

Corroboration means confirmation, ratification, verification or validation of existing evidence
coming from another independent witness.
Corroborative evidence must connect or tend to connect the accused with the crime, confirming
that the crime has been committed but also that the accused committed it.
If the evidence of a child is admitted on behalf of the prosecution against the accused, the latter
should not be convicted on such evidence unless it is corroborated by other material evidence
Section 124 - Corroboration required in criminal cases
Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap.
15), where the evidence of the alleged victim is 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 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
Ideally, the evidence of a child of tender years in criminal proceedings should always be
corroborated; notwithstanding the voir dire examination of a child.
However, if a child of tender years gives sworn testimony or is affirmed, corroboration is
unnecessary [Salim Omar v R (2017); Patrick Kathurima v R (2015``)]

Power to clear court where a child is called as a witness in any proceedings in relation to an
offence against or by a child, or any conduct contrary to decency or morality - Section 75 of the
Children Act (No. 8 of 2001)
In any proceedings concerning a child, their name, identity, home or last place of residence or
school, particulars of the child’s parents or relatives, any photograph or any depiction or caricature
of the child, must not be published or revealed, whether in any publication or report (including
any law report) or otherwise - Section 76(5), Children Act
Appointment of a guardian ad litem, appointed by a court especially where that child is not legally
represented to safeguard its interests during the proceedings - Section 79, Children Act

Accomplices
An accomplice is a competent witness against the accused
Section 141 - Accomplices
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.
A conviction is not illegal because it proceeds upon the uncorroborated evidence of an accomplice
Court must warn itself of the dangers inherent in relying on accomplice’s evidence because:
a. He/she is likely to swear falsely in order to shift the guilt from himself
b. A participator in the crime is an immoral person who is likely to disregard the sanctity of an
oath
c. He gives his evidence under promise of pardon or in expectation of an implied promise of
pardon and is therefore liable to favour the prosecution [Emperor v Maganlal (1949); R v
Patrick Ong’au Okioma (2021)]

Persons of unsound mind

A person of unsound mind is competent to testify unless he is prevented by his condition from
understanding the questions put to him and giving rational answers to them - Section 125(2)
If a witness is unable to understand the nature of an oath because his intellect is temporarily
impaired by reason of drink or drugs, he may be competent after an adjournment of suitable length.

Intermediaries
Dumb witnesses
Section 126 - Dumb witnesses
 1. A witness who is unable to speak may give his evidence in any other manner in which he can
make it intelligible, as, for example, by writing or by signs; but such writing must be written,
and the signs made, in open court.
2. Evidence so given shall be deemed to be oral evidence.

Deaf and dumb witnesses

They can give their evidence through an intermediary
The intermediary must understand how the person communicates
He/she must be sworn
The court record must show the process followed to receive evidence.

Number of witnesses
Section 143 - No particular number of witnesses required to prove any fact
Except in the following cases:
- Treason - need for at least two witnesses to prove offence: Section 45, Penal Code, Cap. 63
- Perjury offences - no conviction on evidence of 1 witness for perjury or subornation of
perjury - Section 111, Penal Code, Cap. 63
- Offences relating to speed - no conviction on evidence of 1 witness - Section 43(3),
Traffic Act, Cap. 403

Oath and affirmation

All witnesses give their evidence on oath or on solemn affirmation
The effect of an oath and affirmation is the same
Believers are usually sworn by swearing to the holy book and indicate that they will tell the truth
and nothing but the truth
If a believer objects to be sworn, they are affirmed. With an affirmation, you just raise your right
hand and indicate that you will tell the truth
**If an atheist swears by a holy book, it is seen as binding. If an atheist objects to be sworn, they are
affirmed.
It is an offence of contempt of court to refuse to be sworn or affirmed - Section 27(d) of the
Contempt of Court Act, No 6 of 2016.

THE END