UNIVERSITY OF NAIROBI THE LAW OF EVIDENCE RELEVANCE & ADMISSIBILITY RES GESTAE Res Gestae, it has been said,

is a phrase adopted to provide a respectable legal cloak for a variety of cases to which no formula of precision can be applied. The words themselves simply mean a transaction. Under the inclusionary common law doctrine of Res Gestae, a fact or opinion which is so closely associated in time, place and circumstances with some act or event which is in issue that it can be said to form a part of the same transaction as the act or event in issue, is itself admissible in evidence. The justification given for the reception of such evidence is the light that it sheds upon the act or event in issue: in its absence, 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, for present purposes, is its provision for the admissibility of statements relating to the performance, occurrence or existence of some act, event or state of affairs which is in issue. Such statements may be received by way of exception to the hearsay rule. Res Gestae forms part of hearsay. R V. BEDINGFIELD [1879] Vol. 14 Cox C.C. 341 A girl was living with her boyfriend until the relationship turned sour. 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. In court the question arose as to whether this statement could be admitted in evidence. Lord Justice Cockburn was emphatic that it could not be admitted. He said that it was not part of the transaction, that it was said after the transaction was all over. (The transaction being the cutting of the throat) The Judge held that it was not admissible as part of the Res Gestae since it was something stated by her after it was all over. The girl said after it was all over. Under S. 33 of Law of Evidence Act, this would have been admitted. Statements, written or oral, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that persons death comes into question and such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes in question; R V. Premji Kurji [1940] E.A.C.A 58 In this case the accused was charged with murder, the deceased had been killed with a dagger and there was evidence that the accused had been found standing over the deceased body with a dagger dripping with blood. The prosecution adduced evidence that a few minutes before, the accused had been seen assaulting the deceaseds brother with a dagger and he had uttered words to the effect that I have finished with you, I am now going to deal with your brother. The question was whether this statement was admissible as forming part of the transaction. Is that part of the same transaction as the murder. Were the words uttered part of the same 1

transaction. It was held that 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. R V. RAMADHANI ISMAEL [1950] ZLR 100 A Girl was living in the village with her parents and she 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 accuseds house. She got hold of her fathers hand and took him to the accused house. She pointed to the accused person and said daddy, this is the Bwana and the question was whether this statement was part of the transaction. The transaction here is rape, which is already finished by the time she goes to call her daddy. Is it admissible? The court held that it was not part of the transaction. The transaction was already over. Different courts have different conception of what forms part of the transaction. The court in this rape case adopted a conservative view of what formed the transaction. TEPPER V. R [1952] A.C 480 In that case there was a fire some place and a house was burning and the lady was heard to ask somebody who looked like the accused some minutes later your house is burning and you are running away the question was whether this statement was part of the transaction as the fact in issue the fact in issue being Arson. It was held to be part of the transaction. R V. CHRISTIE 1914 AC 545 The accused was convicted of indecent assault on a boy. The boy gave un-sworn evidence in which he described the assault and identified the accused but made no reference to any previous identification. The House of Lords, by a majority of five to two, held that both the boys mother and a constable had been properly allowed to give evidence that shortly after the alleged act they saw the boy approach the accused, touch his sleeve and identify him by saying, That is the man. Evidence of the previous identification was admissible as evidence of the witnesss consistency, to show that the witness was able to identify at the time and to exclude the idea that the identification of the prisoner in the dock was an afterthought or mistake. THOMPSON V. TREVANION 1693 Skin L.R. 402 This case had to do with statements made by participants in or observers of events. Thus in this case it was decided that what a wife said immediately upon the hurt was received and before she had time to devise or contrive anything for her own advantage was held to be admissible in evidence. ALL THE ABOVE CASES HAVE SOMETHING TO DO WITH WHETHER THE STATEMENT IS PART OF THE FACT OF IN ISSUE. R V. RATTEN [1972] A.C 378 Ratten was charged with the murder of his wife. He offered the defence of accident. He said that he was cleaning his gun and it accidentally went off injuring his spouse. There was nobody else at the scene of crime or at the point where this incident occurred and the prosecution sought to tender evidence of a girl who worked with the telephone exchange who said that a call had had been made from the accused house at about the time of the murder. The girl said that the voice on the phone betrayed emotion, she was begging to have the police called over and before the operator could link the woman with the police the phone hang up on the woman side. 2

The question was, was the statement by the telephone operator admissible as part of the transaction? Did it happen contemporaneously with the facts in issue? The court held that the evidence of the telephone operator was admissible and in explaining why the Privy Council explained that the important thing was not whether the words were part of the transaction. The important thing was whether the words were uttered during the drama. The court also said that the particular evidence of the operator contradicted the evidence which was to the effect that the only telephone call outside from his house during the murder was only a call for an ambulance.

Section 7 7. Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts or facts in issue, or which constitute the state of things under which they happened or which afforded an opportunity for their occurrence or transaction are relevant. They will be those facts which will afford the opportunity to the facts in issue. The occasion may not be a fact in issue but it helps us understand the fact in issue or relevant facts. CAUSE/EFFECT John Makindi V. R EALR 327

The accused in this case was charged with the murder of a boy over whom he stood in loco parentis (foster father) to. In his defence the accused averred that the deceased was epileptic trying to explain away the injuries on the boy and how they may have occurred. 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 boys head which had opened causing a lot of blood to flow from the deceaseds head and therefore occasioning his death. The prosecution tendered evidence that the accused had previously beaten up this boy and had previously been convicted for beating up this boy and he had threatened the boy with further beatings on account of having been convicted. The question was whether evidence of previous beating was admissible. The court held yes that the evidence of previous beatings was admissible in the circumstances? Could the court admit the evidence of past beatings? The court held that the beatings of earlier beatings was admissible because having taken the evidence of blood clots at the head, it was important to know the cause of the blood clots and the evidence of the previous beatings was admissible as a fact leading to the bleeding and ultimate death. The cause of things or relevant facts or facts in issue will be admitted to explain the cause of death. E.g. the opening of the blood clots and loss of lots of blood. The previous beatings showed us the cause and was thus admissible, so the cause of things and the cause of relevant issues will be admitted. They explain the cause of death like in this case. STATE OF AFFAIRS R V RABIN & ANOTHER [1947] Vol. 14 E.A.C.A 80 In this case there was a charge of corruption and the prosecution tried to lead evidence of a previous shady dealing in which the two persons whose conduct was in issue were involved. The question was whether the evidence was relevant. The court held that the evidence of the previous shady dealings was relevant because it gave the state of things under which the bribe was given. It explained the state of things in which the transaction occurred. The transaction which is the fact in issue. 3

OPPORTUNITY R V Premji Kurji R.V. (1940) 7 E.A.C.A. 40 The case shows that the accused had opportunity to commit the murder. This case discusses Res Gestae. The deceased had been killed with a dagger, and evidence was admitted at the trial of the fact that just prior to the death of the deceased the accused had assaulted the deceaseds brother with a dagger and had uttered threats against the deceased. It was held that the accused had an opportunity, he had used the dagger only a few minutes before he used it to commit the murder. Section 8 Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. Facts which relate to motive, preparation or conduct of any fact in issue will be relevant. Motive is that which makes a person do a particular thing or act in a particular way. For instance a person who is accused of rape may be motivated by lust or desire. A person who says they killed in self defence will be motivated by fear. Motive is what influences a persons acts or conduct. For all voluntary acts, there will be a motivation and you need to look at a persons conduct to explain away the motivation. Similarly any fact that would constitute preparation for a fact in issue is also going to be admissible. The planning or arranging means and measures necessary to commit an act or to do something. If it is a crime, it will be the type of measures one takes to help achieve the committing of that that crime. For example if you intend to steal there will be surveillance involved. Hiring implements required to commit the crime. Similarly any fact which shows the conduct of any party to the proceedings is relevant. Section 8 (4) 8. (4) The word conduct in this section does not include statements, unless those statements accompany and explain acts other than statements. Statements are expressly excluded. You are not talking about statements but preparation. Under section 8 you are dealing with things that people do and not things that people do. If you want to bring in a statement, it would have to be associated with an act. Section 9 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 insofar as they are necessary for that purpose. Facts, which explain or introduce facts in issue, are relevant. It is only phraseology of Section 9 that differs from factors that have been explained in Section 6,7 and 8.

Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact 4

as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. The legislator is said to have been acting Ex Abundante Cautella. Out of an abundance of caution. This section deals with conspiracies. If there are reasonable grounds to believe that there is a conspiracy, then whatever is said or done by any person in reference to their common intention, after the time such intention was formed, is a relevant fact. What does a conspiracy entail? It is where people sit and agree and form a common intention to do something. Common intention is the defining factor of the conspiracy. It is relevant to prove That it is a conspiracy; and To prove that persons were parties to the conspiracy. R V. KANJI 1949 VOL 15 EALR 116 It is stated with reference to S. 10 that a person who joins a conspiracy in law is responsible in law for all the acts of his fellow conspirators done in furtherance of the conspiracy whether done before during or after his participation. It is only after common intention is established. STANLEY MUSINGA ET AL V. R [1951] 18 EACAR 211 Here the court said that A person who joins a conspiracy is responsible in law for all the acts of his fellowconspirators done in furtherance of the conspiracy, whether done before, during or after his participation. The time when, by act or declaration, reference is made to the common intention is not important so long as it is after that time when the intention is first entertained by one of the conspirators. R V. MULJI JAMNADAS ETAL 1946 13 EACA 147. The defendants were charged with a conspiracy to effect a lawful purpose by unlawful means, in that they toured the neighbourhood in a lorry to recruit labour for the Companys Sugar Works, and that acting together they did on a number of occasions compel persons by the use of force and threats of force to get into the lorry and submit to being carried away on it for labour at the Sugar Works. The defence argued that intimidating labour into employment was not an offence known to the criminal law of Uganda, and did not, therefore, constitute unlawful means. The Court noted, however, citing from ARCHBOLD, that a tort which is not a criminal offence is sufficient to satisfy the provision as to unlawful means, and upheld the convictions. Section 11 - Facts which are inconsistent with or which affect the probability of other facts. Facts not otherwise relevant are relevant if they are inconsistent with any fact in issue or relevant fact; or if by themselves or in connexion with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable. What kind of facts are relevant S. 11 (b) is the epitome of all that is found relevant in a fact in issue. Read S. 5 along with S. 11. 5

Section 12 In suits in which damages are claimed, any fact which will enable the court to determine the amount of damages which ought to be awarded is relevant. Section 12 Deals with the facts which affect the quantum of damages. This Section is said to be a boon to ambulance chasers. E.g. contributory negligence your participation affects the amount of damages you receive. If the plaintiff in a civil suit claims damages as compensation for injuries suffered, the amount of damages which will compensate him naturally becomes a fact in issue. Evidence which helps the court to determine the amount of damages is relevant. The following cases show various types of facts which the courts have considered in reaching an assessment. MIBUI V. DYER [1967] E.A. 315 (K) Wounding in course of arrest by private person on suspicion of felony. Psychological factors of malingering and compensationists taken into account, as well as aggravation of damages by element of injury to reputation. MU WANI [1964] E.A. 171 (U)WANGA V. JI The deceased was an African child and the court considered the amount of damages for the loss of service to the mother and grandparents, the father being deceased. Section 13. Where the existence of any right or custom is in question, the following facts are relevant any transaction by which the right or custom in question was created, claimed, modified, recognised, asserted or denied, or which was inconsistent with its existence; or particular instances, in which the right or custom was claimed, recognized or exercised, or in which its exercise was disputed, asserted or departed from. If what you have in issue is your right in custom, 13 (a) factors that show when customs were created, whether it is relevant and what kinds of arguments were made for the custom. (Locus classicus) Relevance and admissibility

SIMILAR FACTS EVIDENCE: The definition Similar facts evidence can only be led if there are similar facts to those under consideration. There has to be substantial connection or similarity of what the person did. The court has a number of questions should ask Is it relevant? Can the offence be proved without similar facts evidence? What other purpose does the evidence serve other than cause prejudice against the accused person? 6

Section 14 and 15 deal with similar facts evidence. Section 14 and 15. (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) 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), the previous conviction of such person is also relevant. Can we infer that something was done by human beings because similar incidents have been occasioned by human beings in the past? Can we rule out natural occurrence when something happens because similar things have happened before? Is it legitimate to infer that the accused person has committed the act under investigation merely because it is shown that he has done similar things in the past? It is notable that when you are dealing with similar facts, the general principle of law is that it is not legitimate to infer that an accused person committed a particular offence merely because he had committed a similar offence in the past. The reason is because Firstly there is the policy of consideration of fairness to the accused person. Secondly similar facts evidence is evidence that can bring about a lot of prejudice to the accused person. Thirdly the burden that an accused person has when they come to court is that they have to be ready to defend their whole lives. Evidence of similar facts may be led if there is substantial connection between those similar incidents and the one in issue. You cannot lead evidence of fact just to show connection. There has to be substantial connection in similarity in what a person did. The court should ask whether Evidence of similar fact is relevant; The offence can be proved without the similar evidence; There is a purpose that is served by the evidence other than to cause prejudice against the accused person. Evidence of similar fact helps to establish intention and it can also be used to rule out defence such as honest intention. Even then a Judge has discretion to keep away evidence of similar facts if it is prejudicial to the accused person. The locus classica on evidence of similar facts is Makin V. AG Makin and his wife were charged with murdering a child. It was shown that the childs mortal remains were found buried in the garden of the Makins. There was no evidence that they had killed the child but there was 7

evidence that the Makins had adopted this child from the parents. There was also evidence that the Makins had also adopted other children who were unrelated to this one. They were being paid after they adopted the children. There was also evidence that the children were never again seen by their parents after being adopted by the Makins. The investigators had found mortal remains of children in gardens of the houses that the Makins had lived in before. The question was, is this evidence of houses and backyards relevant in the trial for the murder of a specific murder. The evidence was admitted though there was not direct evidence to show that the Makins had actually killed the children. There was substantial connection between the activities of the adoption of the other children and the one under investigation. There was striking similarities between the cases and the Makins had the opportunity to murder the children but the evidence of their dealings with other children was taken into consideration because of the similarities that the investigators had found. In that case, 2 basic principles were established and reiterated in the case of John Makindi V. R. The Principles were as follows: You cannot lead similar facts evidence merely to show the accused disposition to commit an offence. Lord Herschell states as follows 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 the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct/character to have committed the offence for which he is being tried. Disposition should not be motivation for leading similar facts evidence. 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 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. Essentially the Makin case established parameters for admitting evidence of similar facts. Similar facts evidence cannot just be used to show disposition. The second proposition delimiting evidence of similar facts is found in S. 15 of the Evidence Act 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. After Makin the question arose as to whether the prosecution would have to wait until a defence arose or could they wait to admit similar facts evidence. The question arose as to whether the defence had to wait until a defence arose to raise similar fact evidence or could they raise it to prevent the accused from even thinking of raising a defence. Had Lord Herschell only given direction on which subsequent courts could built on and in Harris V DPP AC. 394 Viscount Simmons settled the matter . It was an error to draw a closed list of circumstances of when similar facts evidence was admissible. He dispelled the notion that Lord Herschell one did not have to wait until the accused person raised a defence of accused or mistake for one to bring up the defence before introducing such evidence. Lord Herschell only gave instance when similar facts evidence could be raised and that Lord Herschell only raised instances. 8

Mohammed Said Akraby v. R. [1956] Vol. 23 EACA 512 It was held in this case that even though the prosecution did not have to wait until the accused raised a defence; the judge had discretion to exclude similar facts evidence if its probative value was out weighed by the prejudicial effect. It was always going to be a balancing act what purpose does the evidence serve other than cause prejudice. Noor Mohammed v. R. [1937] Vol. 4 E.A.C.A The accused was charged with murdering his wife by poisoning. There was no evidence that he had administered the poison but prosecution sought to adduce evidence that the accused had had another wife who died as a result of poisoning in circumstances which suggested that the accused had lured the wife into taking poison as a cure for a toothache. The accused was convicted but on Appeal, the Appeal was allowed on the grounds that evidence admitted by the trial judge was very prejudicial to the accused person. In the words of the court, the probative value was outweighed by the prejudicial effect even though the evidence was technically admissible. Similar facts evidence must have strong probative value weighed against prejudice. R v. Scarrot [1978] 1 AER 672 Discussing further probative value versus prejudicial effect, Lord Scarman stated in this case: 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 provided an underlying link. The existence of such a link is not to be inferred from mere similarity of facts which are themselves so common place that they can provide no sure ground for saying that they point to the commission by the accused of the offence under consideration. Evidence of similar facts has to have its own persuasive value and not to just have probative value it just not depend on coincidence. Admissible similar facts evidence falls into 3 categories which depend on what it is directed towards. Similar facts evidence to establish state of mind with which some act proved to have been done was done i.e. what motivated the act; Similar facts evidence to prove the identity of the perpetrator or doer of an act; Similar facts evidence to establish the commission of the act itself and therefore rule out an act of nature or miracle.

UNIVERSITY OF NAIROBI FACULTY OF LAW XXX LLB II 2003 9

LAW OF EVIDENCE Lesson 3 Firstly the question of similar facts evidence to establish state of mind the accused may admit that he committed an act but his state of mind is not discernible. Looking at the evidence it is overwhelming that the accused committed the crime but it is not clear what his state of mind was. Under this circumstance it may be the case that he had no intention to do what he did. E.g. a person could have killed a human being but the case could be that he killed the human being thinking it to be an animal. If the accused person had done similar actions where the state of mind was clear, then it can be inferred that the present act was done with the same state of mind as the previous ones. If however the state of mind in previous actions is unclear, the very nature of those acts conceded along with the present one may lead to an inference as to what the state of mind was. For instance if a student was to be caught during the exams copying from the Evidence Act and in defence says that he did not know that he was wrong to copy from the Act, if there is evidence that such a student has been previously caught in another subject doing the same and has been reprimanded for it, then the evidence would go to show that he is not innocent, the Evidence can be used to infer. R . V. Francis Francis was charged with attempting to obtain money from another person by presenting a certain ring to be a diamond ring. He said that he had no knowledge that the ring he was purporting to sell was not a diamond ring and was worthless. There was evidence that he had previously approached other persons previously who had refused to give him money for the ring when they realised that the ring was not a diamond ring. The question was whether the Evidence of previous transaction with other persons where these people had refused to give him money for the ring by realising that the ring was worthless relevant. The court held that it was relevant to rebut the defence of lack of knowledge. The evidence of Franciss experience with other people was relevant to rebut lack of knowledge. The evidence of Francis with other persons was relevant here to rebut lack of knowledge.

John Makindi V. R Evidence of similar fact in John Makindi was admitted on the ground that it illustrated the hostility and ill-will between John Makindi and his foster child. On state of mind one of the findings explained the cause of loss of blood and the other evidence showed that he had been previously taken to court and had threatened the child with further beating on account of having sent him to prison. Similar evidence can be used to show the intention in which an act was done. You can pin the act on a person because they admitted but you may be unable to establish what the state of their mind was. You use similar fact evidence to illustrate that a person had fraudulent intention. R V. Armstrong Armstrong was charged with murdering his wife by administering arsenic poison on her. This poison was actually found in his house tied up in packets containing a fatal dose. Armstrong claimed that he used the poison to kill weeds as a gardening aid. There was actually no evidence that he had administered the poison on his wife. The prosecution however sought to lead evidence that a few weeks after Armstrongs wifes death he had attempted to murder another man by giving him arsenic poison. The question was whether this evidence was admissible. The defence raised the objection that the evidence was prejudicial and irrelevant. The court held that the evidence was admissible and in the words of Lord Hewart The fact that Armstrong was subsequently found not merely in possession of but actually using for a similar deadly purpose the very poison 10

that caused the death of his wife was evidence from which the jury might infer that the poison was not in his possession at the earlier date for an innocent purpose. R V. Bond [1969] 2 K.B. 389 Dr. Bond was charged with using some instruments on a woman with the intent to procure an abortion. He denied the intent, he said that he was not using the instrument to procure an abortion but the instruments were to examine the woman. The prosecution however sought to lead evidence that the doctor had used the same instruments on another woman occasioning an abortion and the girl on whom he was being accused in using the instruments testified that the doctor had told her words to the effect that he had made dozens of girls happy and could do the same to her. The defence objected to this evidence on the grounds that it was prejudicial and irrelevant but it was admitted on the grounds that it showed the doctors intention in purporting to examine the woman and rebutted the doctors assertion that he was using it to examine the woman. Achieng V. R Achieng was a permanent secretary who had an imprest account and was charged with stealing 76,000/- from that account. His defence was that he had no intention to defraud and that he intended to account for the money but was apprehended prematurely. The prosecution however adduced evidence to the effect that on six previous occasions, Achieng had taken money from his imprest account and never accounted for it. The question was whether the evidence of previous occasions was admissible and the court held that it was admissible because it rebutted his defence of intention to account for the money. The Queen V. Harold Whip and Another (1955) 28 KLR The two accused were charged with conspiracy to defraud the City Council. The case for the prosecution was that pursuant to an agreement between the two accused, one of them was a City Council Engineer and the other one an excavator, the 1st accused, certified payments as due to the 2nd accused firm for the excavation of hard rock which the 1st accused knew to be greatly in excess of what had been excavated. The 1st accused had therefore caused excessive payment to be made by the City Council to the contractors. The prosecution alleged that this was done fraudulently and that he had not just made an honest mistake in the estimation of the rocks. The prosecution actually brought evidence that there had been a case where the same accused had overestimated the amounts owed to the 2nd accused an event which had occurred in 1953. The court held that the 1953 transaction rebutted a defence of honest mistake. Essentially showing the state of mind with which he had acted. R V. Mortimer Mortimer was charged with murdering a woman cyclist by knocking her down. He claimed that it was an inevitable accident. The prosecution however adduced evidence that Mortimer had on previous occasions knocked down other female cyclists. It was held that this evidence of the previous incidence was admissible to show that he intended what he had done. It was not an accident. The nature of the event as a whole ruled out coincidence and the conclusion was gleaned from looking at the transaction as a whole.

SIMILAR FACTS EVIDENCE TO IDENTIFY THE PERPERTRATOR OR DOER OF AN ACT

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Where it is shown that a particular act has been done but nobody knows for sure who did it, if it so happens that other acts of distinctive similarity with the one under consideration have occurred and a particular person has been involved, then an inference may be drawn that he was the doer of the act under consideration. It is notable however that for this inference to be drawn the similarity must be very distinct to ensure propensity on its own should not be used to judge a person. For example if handbags disappear and it is known that they disappear during the break and this time a person is caught walking out with a handbag and then it is discovered that this person never comes back to class after the break and a modus operandi is drawn that this person has been taking the handbags and the person has a liking for a particular kind of handbag. Essentially you are looking for similarities. R V. STRAFFEN: In this case a young girl was found strangled by the roadside and it was clear from examining her that there had been no attempt at sexual assault on her person. Straffen had been seen around the scene of crime but there was no evidence that he was directly or indirectly connected with the murder. It was established as a fact that Straffen had strangled two girls at a different place two months earlier and had also left their bodies by the roadside. It was also clear that there had been no attempt at sexual assault on these girls. Straffen had been committed to a mental hospital for the offence and at the time the girl whose murder was under consideration had been killed; Straffen had escaped from the mental hospital and was at large. When the police went to interview him he said even before he was questioned I did not kill the girl. He was convicted on the basis of the evidence of the other two girls. Again it was established that he had had the opportunity to murder the girl having escaped from the mental hospital and the fact that he had been seen near the scene he had the opportunity and the propensity was so distinct. Thompson V. R Thompson had carnal knowledge of two boys and he gave them a date 3 days later. He described the place of the date as a street outside a public toilet. Thompson met the two boys at the appointed hour. On noticing the presence of strangers, Thompson gave the boys some money and asked them to go away. It turned out that these strange persons were police and when they approached Thompson he told them that they had got the wrong man. On being searched Thompson was found in possession of a few bottles of chemicals and a further search of his house yielded photos of naked boys. The judges relied on this evidence and its use as alleged by the boys. The boys said what the chemical had been used for. In the words of the court, being gay had characteristics that were easily recognisable. It elicited a distinct propensity and was therefore a reliable means of identification. Paul Ekai V. R [1981] CAR 115 Paul was charged with the murder of Joy Adamson a famous conservationist. His defence was an alibi (alibi is assertion of not being at the locus quo). Ekai said that he had been in Isiolo staying with his grandmother. The evidence was that on the material night, one of the 3 trunks of boxes in the deceased tent including the one containing the cash box had been forced open by a person using a bar which had been taken from the workshop at the camp. The intruder had escaped using the animal enclosure. The prosecution gave evidence that 3 weeks earlier, there had been a theft at the camp and on that occasion the box containing the cash box had been forced open with the bar taken from the camp workshop. The intruder on that previous occasion had gone out through the animal enclosure. When Paul was apprehended after the murder, he was found in possession of some clothes stolen from the camp on the previous occasion. Paul was the deceaseds worker and he had a good knowledge of the camp and taking all these factors into consideration it was held that the evidence of the previous theft was admissible in attempts to prove the murder because the acts exhibited a distinct modus operandi. 12

Similar fact evidence can be lead to prove the commission of an act This applies in situations where it is not clear whether the act was done or it happened miraculously. If it is shown that a similar act has occurred caused by human intervention, this is a good ground for inferring that a particular act was actually done as opposed to it just happening miraculously. This is normally in situations where if you look at the acts in isolation, you can dismiss human act and attribute them to nature but when you look at the acts together you can see they had help. R V. Smith Smith married his first wife. He took out an insurance policy on her life in his favour. He made representation to his personal doctor that his wife was epileptic, a few months later his wifes dead body was found floating in the bathtub and a few months later the insurance paid. Smith proceeded to marry another woman, took out an insurance policy on her in his favour and made assertions that she was epileptic and she too was found dead in the tub and he proceeded to collect insurance and married yet another one whose body was also found dead. He was charged with murdering wife no. 1 on the basis of the subsequent deaths of wives 2 and 3 in similar circumstances. In the words of the court the coincidence was too fantastic to be credible and this of course ruled out the possibility that the drowning of the women in the bath was an accident. In the words of the court the act was done by human hands and the motive was clear so it was not an act of God. Makin V. Attorney General The question arose whether the dying of the children adopted by the Makins was coincidental. R V. BOLL In the Republic V. Boll, Boll stayed with his sister as husband and wife when incest was not an offence and they even had a child together when incest was not an offence. After parliament made incest an offence, the two were charged for having an incestuous affair, but they continued living together as man and wife. Even after incest had been made an offence, they still continued to live together as man and wife and the question was whether the evidence of the previous cohabitation as man and wife could be used against them. They were convicted of incest because their previous association ruled out innocence of their subsequent association. The logic was that if two people have previously lived as husband and wife, unless they separate to live under separate roofs they continue to live as husband and wife. The burden is on them to rebut this presumption and they were unable to do that. To summarise similar fact evidence we should look at Section 16 of the Evidence Act 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. For instance if you are trying to establish whether people had lived as husband and wife if you can show previous cause of dealing where they were living as man and wife that would be admissible. Admission of similar fact evidence is the exception to the general rule and will only be admitted when it has strong probative value. 13

What is similar fact evidence and when is it admissible? Section 15 and 16 wise sayings of judges and case law. JUDICIAL NOTICE Judicial notice is defined as what judges see or the liberty accorded a judicial officer acting as such to recognise the existence or non-existence of certain facts or phenomena without calling for evidence. On what basis will Judicial Notice be allowed: The habit or customs of the court and this relates to the authenticity for instance of certain signatures. You dont have to prove the authenticity every time they come to court. Seals of the court you dont have to prove their authenticity because the court habitually uses the seal. The names and official designation of high ranking officers past and present; International relations of a country if Kenya is at war with a country judges are expected to know; Where statutes decree that certain things be judiciary noticed e.g. certain certificates that judges will decree should be taken judicial notice of; Need to make things workable e.g. the practice of the court, how the court conducts itself is taken judicial notice of. Ordinary rules of reasoning dont need evidence to be proved. Basis of judicial notice is that of matters that are known by everybody e.g. judges would know that if you imbibe certain liquids you can get intoxicated this is commonly known. One cannot assume that judges are so ignorant that they wont know what everybody else knows. The effects of judicial notice Section 59 of the Evidence Act No fact of which the court shall take judicial notice need be proved. Judicial notice dispenses with proof. Section 60 enumerates matters that the court should take judicial notice of. 60. (1) The courts shall take judicial notice of the following facts: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; The general course of proceedings and privileges of Parliament, but not the transactions in their journals; Articles of War for the Armed Forces; The public seal of Kenya; the seals of all courts of Kenya; and all seals which any person is authorized by any written law to use; The accession to office, names, titles, functions and signatures of public officers, if the fact of their appointment is notified in the Gazette; The existence, title and national flag of every State and Sovereign recognized by the Government; Natural and artificial divisions of time, and geographical divisions of the world, and public holidays; The extent of the territories comprised in the Commonwealth; 14

The commencement, continuance and termination of hostilities between Kenya and any other State or body of persons; 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 or its process, and also of all advocates and other persons authorized by law to appear or act before it; The rule of the road on land or at sea or in the air; The ordinary course of nature; Preston Jones V. Preston Jones Preston went abroad and resided there for 9 months and therefore had no nuptial intercourse with his wife. 3 months after he came back, a baby was born to his wife fully mature. He petitioned for divorce on the grounds of adultery. Relying on the evidence that the ordinary course of nature i.e. that human gestation period was 9 months and not 12 or 3 months. The court held that the matrimonial offence of adultery was not proved. In the words of judges though the court took judicial notice of the normal life of human gestation period, it was not completely ruled out that there could be abnormal periods of human gestation. The meaning of English words; All matters of general or local notoriety; (things that everyone knows) All other matters of which it is directed by any written law to take judicial notice. Should we take judicial notice of customary law? Kimani Gikanga The issue arose as to whether in a dispute involving customary law whether customary law should be taken judicial notice of. Judges were of the opinion that the party that seeks to rely on the customary should prove that customary law as a matter of fact by calling expert witnesses. This is because of the difficulty of establishing what the customary law is at any given time since it is unwritten. Section 18 of the Magistrates Act Magistrates are allowed to take Judicial Notice of customary law without having to call for proof for it and if there is a dispute, then it will have to be established by proof. If customary law is a disputed tenet, then there is need for proof. If there are contestations then proof will have to be called. Section 60 (1) (b) Judicial Notice should be taken of the general course of proceedings and privileges of parliament, but not the transactions in their journals. The court need not call for evidential proof of privileges accorded to parliament. These provisions however exempts from judicial notice transactions in parliamentary journals. Whatever is recorded in the Hansard is not going to be taken judicial notice of. Section 60 (1) (c) Judicial Notice should be taken of articles of war for the Armed Forces.

Section 60 (1)(e) the public seal of Kenya; the seals of all courts of Kenya; and all seals which any person is authorized by any written law to use; Section 60 (1) (f) - The accession to office, names, titles, functions and signatures of public officers if the fact of their appointment is notified in the Gazette; 15

Section 60 (1) (g) the existence, title and national flag of every State and Sovereign recognized by the Government; this is to avoid embarrassment. Section 60 (1) (h) Natural and artificial divisions of time, and geographical divisions of the world, and public holidays; Section 60 (1)(i) The extent of the territories comprised in the commonwealth; Section 60 (1)(j) the commencement, continuance and termination of hostilities between Kenya and any other State or body of persons; Section 60 (1)(k) the names of the members and officers of the court and of their deputies, subordinate officers and assistants, and of all officers acting in execution of its process, and also of all advocates and other persons authorized by law to appear or act before it; Section 60 (1)(l) the rule of the road on land or at sea or in the air;

Section 60 (1)(m) the ordinary course of nature; Section (1)(n) the meaning of English words; Section (1)(o) all matters of general or local notoriety; Section (1)(p) all other matters of which it is directed by any written law to take judicial notice. PRESTON JONES VS PRESTON Preston went abroad and resided there for 9 months and therefore had no nuptial intercourse with his wife. 3 months after he came back, a baby was born to his wife fully mature. He petitioned for divorce on the grounds of adultery. Relying on the evidence that the ordinary course of nature, human gestation was 9 months not 12 months or 3 months. The court held that the matrimonial offence of adultery was not proved. In the words of the judges, though the court took judicial notice of the normal life of human gestation, it was not completely ruled out that there could be abnormal periods of human gestation. Re Oxford Poor Rate Case: Burns V. Edmund In this case Crichton J. halved the conventional award of damages for loss of expectation of life to the wife of a deceased criminal after taking judicial notice of the fact that the life of a criminal is an unhappy one.

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UNIVERSITY OF NAIROBI FACULTY OF LAW XXX LLB II 2003 Law of Evidence Lesson 4 PRESUMPTIONS: These are inferences that a court may draw, could draw or must draw. Presumptions are devices that entitle a court to pronounce on a particular issue not withstanding the fact that there is no evidence or there is insufficient evidence. The inference that the court may draw could be affirmative or dis-affirmative (on the yes or on the no) presumptions enable a court to find a fact to exist or to find a fact not to exist. Essentially presumptions will have effect on the burden of proof. If we are saying that presumptions will help the court to find a certain fact to exist, it will have an effect on what burden of proof a person will have. There are 3 categories of presumptions: PRESUMPTIONS OF FACTS these are inferences that may be drawn upon the establishment of a basic fact. The operative word in these presumptions is may. When you find a basic fact to exist, you are invited to come to court. There is an invitation to the court to draw a certain inference. REBUTTABLE PRESUMPTIONS OF LAW They are inferences that must be drawn in the absence of conclusive evidence to the contrary. A good example is the presumption of innocence, that every person accused of a crime is innocent until proved guilty. Until there is conclusive evidence dispelling the innocence of the accused person. Essentially these presumptions are said to be mandatory until you have other conclusive evidence to the contrary. IRREBUTTABLE PRESUMPTIONS OF LAW: These must be drawn no matter how much evidence exists to the contrary. Once you establish the basic fact pertaining to the presumption then you have to draw the inference that will dispel that presumption. They will usually be drawn from statutory provisions. They are public policy pronouncements, which decree that in the interest of public certain matters are decreed to be a certain way e.g. an 8 year old boy is not capable of carnal knowledge. Section 4 of the Evidence Act defines presumptions of facts and rebuttable presumptions of law 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. 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. 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. PRESUMPTIONS OF FACTS: (DISCRETIONARY PRESUMPTIONS) They are inferences that may be drawn. Section 4 (1). 17

Evidence Act Section 77(2). The court may presume that the signature to any such document is genuine and that the person signing it held the office and qualifications which he professed to hold at the time when he signed it. The court is allowed to presume and it is incumbent on the person who argues otherwise to prove their case. Section 92. The court may presume that any document purporting to be a copy of a judgment or judicial record of any country not forming part of the Commonwealth is genuine and accurate, and that such judgment or record was pronounced or recorded by a court of competent jurisdiction, if the document purports to be certified in any manner which is certified by a Kenya consular officer or diplomatic representative in or for such country to be the manner commonly in use in that country for the certification of copies of judgments or judicial records. Section 93. The court may presume that any book, to which it may refer for information on matters of public or general interest, and that any published map or chart, the statements of which are admissible facts and which is produced for its inspection, was written and published by the person and at the time and place by whom or at which it purports to have been written or published. There are certain things that are non-contestable and one should not waste the courts time trying to prove them. Section 113 this section used to help in probate matters but once the Law of Succession was put into being it was repealed. This was important when we would talk about proof of death within 30 years. Section 119. 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. (Presumption of likely facts) We are talking about an inference that may be drawn regarding natural events, human conduct and the common course of natural events. You infer from what you see. If a person is caught with stolen goods, it is presumed that he stole them or that he knows who stole them. If they cannot adequately explain how they came to possess stolen goods, then the incumbent of proof is on them to say how the owner came to lose the goods. The ability of the court of law to draw an inference Presumption of guilty knowledge. From experience we can infer that a woman who is in possession of stolen goods after the theft and cannot give account of those goods is either the thief or has received them knowing them to be stolen. We are talking of recent possession. In Zus V. Uganda the question arose, the court here refused to apply the doctrine of recent possession after the accused was found in possession of a stolen bicycle 7 months after it had been recorded lost. The trial court had actually applied that doctrine to convict the thief of both the theft and receiving stolen goods because the accused had not given any reasonable explanation by how he had come upon the bicycle. The Appeal Court held that 7 months cannot be described as recent and consequently the court of appeal quashed the conviction for theft while upholding the conviction for receiving stolen goods. PRESUMPTION OF LIKELY FACTS S. 119 (IMMUTABILITY OF THINGS) A thing or state of things which has been shown to exist within a period shorter than that within which such things or state of things usually cease to exist is presumed to be still in existence. An example is given in the case of Kanji & Kanji V. R. 1961 E.A 411 C.A In this case a sisal factory employees arm was amputated by a sisal decorticator in April 1960. An examination done by a Mr. Perkin in September 1960 showed that there was no barrier or fence to protect the employees when feeding the machine with sisal leaves. The firm was held liable for failing to provide ample barriers to protect employees from the machine and this finding was held on the basis of the presumption of the immutability of things. On appeal the factory owner had argued that there was some form of fence at the Factory when the accident occurred in 1960. This barrier was not found to be in place in September when Mr. Perkins did his inspection. The Court held that the Magistrate was correct in presuming that the machine was in the same condition in April as it was in September 1960. It is unlikely that there was a barrier in April which disappeared by September but the factory owners were welcome to bring in evidence to prove that there had been a barrier in April. OFFICIAL & JUDICIAL ACTS ARE REGULARLY PERFORMED 18

(PRESUMPTION OF REGULARITY) It is based on sound public policy which imputes good faith on official and judicial conduct. The burden is on he/she who alleges irregularity to bring the evidence to disprove or establish the irregularity. Looking at how our courts run, this might not be the way to go. For instance if your file gets lost, will you allege that the file got lost by the court. THE COMMON COURSE OF BUSINESS HAS BEEN FOLLOWED IN PARTICULAR CASES The basis of this presumption is business practice. If some business has been carried out pursuant to this common course, it is going to be presumed to be so unless the person alleging otherwise brings evidence to the contrary. If you have a quarrel with the common course of business, it is incumbent on you to prove that the common course of business was not followed. EVIDENCE WHICH COULD BE PRODUCED AND IS NOT PRODUCED WOULD IF PRODUCED BE UNFAVOURABLE TO THE PERSON WHO WITHHOLDS IT: This again is something that you draw as a worldly-wise person. If someone is withholding evidence, it would be presumed that the person withholding the evidence is because It Is against them and it is incumbent upon the person withholding the evidence to show that it is not so. ACCOMPLICES ARE UNWORHTY OF CREDIT & THAT THEIR EVIDENCE SHOULD NOT BE USED TO CONVICT UNLESS IT IS CORROBORATED There are certain witnesses who are held suspect and accomplices are some of these witnesses. The reasons for the unworthiness of the evidence are that an accomplice is a participant in the offence and such a person would 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. It is necessary to get independent testimony on material particulars. Davies V. DPP 1954 AC 378 The Appellant together with other youths attacked another group with fists. One of the members of the other group subsequently died of stab wounds inflicted by a knife. Six youths including the Appellant and one L were charged with murder but finally the Appellant alone was convicted. L and the others were convicted of common assault. At the Appellants trial, L gave evidence for the prosecution. Referring to an admission by the Appellant of the use of a knife by him. The Judge in this case did not warn the Jury on the danger of accepting Ls evidence without corroboration. On Appeal the Appellant was saying that he was wrongly convicted because of lack of this warning on the part of the judge. The court held that there was no good reason for quashing the conviction because L did not know before the murder that any of his companions had a knife. Essentially the court held that L was not an accomplice in the crime of murder. The court here defined accomplices as persons who are Participes Criminis in respect of the actual crime charged whether as principal participants before or after the fact. It included people who procured, aided or abetted in the commission of the crime. The Court was trying to exonerate L from being a participant. He did not participate in the stabbing because he was not aware that his colleague had a knife. REBUTTABLE PRESUMPTIONS OF LAW: To rebut this presumption you need conclusive evidence. These are presumptions that are decreed by law. A good example is the presumption of genuineness in a document purporting to be the Kenya Gazette. There is also the presumption that a person between 8 and 12 is not criminally liable unless it can be shown that he knew that his action was morally and legally wrong. Once you establish the basic fact, then the person could not be exposed to criminal liability unless you bring evidence to show that he knew that what he did was legally and morally wrong. Section 83. Presumptions as to documents (1) The court shall presume to be genuine every document purporting to be a certificate, certified copy or other document which is declared by law to be admissible as evidence of any particular fact; and Substantially in the form, and purporting to be executed in the manner, directed by law in that behalf; and Purporting to be duly certified by a public officer. 19

(2) The court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in such document. To be able to disprove documents under this act you have to bring evidence. Records of Evidence Section 84 Whenever any document is produced before any court, purporting to be a record or memorandum of any evidence given in a judicial proceeding or before any officer authorized by law to take such evidence, and purporting to be signed by a Judge or magistrate or any such officer as aforesaid, the court shall presume that the document is genuine; that any statements as to the circumstances in which it was taken, purporting to be made by the person signing it, are true; and that such evidence was duly taken. The use of the word shall documents are presumed to be genuine. Section 85. The production of a copy of any written law, or of a copy of the Gazette containing any written law or any notice purporting to be made in pursuance of a written law, where such law or notice (as the case may be) purports to be printed by the Government Printer, shall be prima facie evidence in all courts and for all purposes whatsoever of the due making and tenor of such written law or notice. There is a public policy that such a documents shall be genuine unless there is conclusive evidence to the contrary. Sections 86, 87 and 88, Section 86: (1) The court shall presume the genuineness of every document purporting to be London Gazette, the Edinburgh Gazette, or the official Gazette of any country in the Commonwealth. A newspaper or journal; A document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody. (2) Documents are said to be in proper custody if they are in the place in which and under the care of the person with whom they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable. Section 87. Where any publication or part thereof indicates or purports to indicate the name of any person by or on behalf or under sponsorship of whom, or the place at which or date on which, such publication or any part thereof was contributed, it shall, in any proceedings for an offence under any written law or for contempt of any court, be presumed, until the contrary is proved, that such publication or part thereof was contributed, by or on behalf or under the sponsorship of such person, or at such place or on such date, as the case may be. Use of the word shall all publications will be deemed to have been published, edited, printed in the place that they are said to have been published unless you can bring evidence to the contrary. Section 88: When any document is produced before any court, purporting to be a document which, by the law if force for the time being in England, would be admissible in proof of any particular in any Court of Justice in England, without proof of the seal or stamp or signature authenticating it, or of the judicial or official character claimed by the person by whom it purports to be signed the court shall presume that such seal, stamp or signature is genuine, and that the person signing it held, at the time when he signed it, the judicial or official character which he claims in such document; and the document shall be admissible for the same purpose for which it would be admissible in England. Section 89: (1) The court shall presume that maps or plans purporting to be made or published by the authority of the Government, or any department of the Government, of any country in the Commonwealth were so made or published and are accurate. Maps or plans specially made for the purposes of any cause or other proceeding, civil or criminal, must be proved to be accurate. It talks of maps or plans purporting to have been published by the government are presumed to be accurate unless you produce evidence to the contrary. Those that emanate from the government will be presumed to be accurate. 20

Section 90. The court shall presume the genuineness of every book purporting to be printed or published under the authority of the Government of any country and to contain any of the laws of that country, and of every book purporting to contain reports of decisions of the courts of any country. Laws and Judicial Reports are presumed to be accurate. Section 91. The court shall presume that every document purporting to be a power of attorney, and to have been executed before and authenticated by a notary public or commissioner for oaths or any court, judge, magistrate, or Kenya consular officer or diplomatic agent, was so executed and authenticated. Section 95 the court shall presume that every document called for and not produced after notice to produce was attested, stamped and executed in the manner required by the law. You are talking about presumption as to due execution. Section 92. The court may presume that any document purporting to be a copy of a judgment or judicial record of any country not forming part of the Commonwealth is genuine and accurate, and that such judgement or record was pronounced or recorded by a court of competent jurisdiction, if the document purports to be certified in any manner which is certified by a Kenya consular officer or diplomatic representative in or for such country to be the manner commonly in use in that country for the certification of copies of judgements or judicial records. Section 93. The court may presume that any book, to which it may refer for information on matters of public or general interest, and that any published map or chart, the statements of which are admissible facts and which is produced for its inspection, was written and published by the person and at the time and place by whom or at which it purports to have been written or published. Section 94. The court may presume that a message forwarded from a telegraph office to the person to whom such message purports to be addressed, corresponds with a message delivered for transmission at the office from which the message purports to be sent; but the court shall not make any presumption as to the person by whom such message was delivered for transmission. The presumption of facts distinguished by use of the word may.

PRESUMPTION OF DEATH Section 118 (a) 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. If a person has not been heard of for 7 years by people who would have heard from him he is presumed dead. For purposes of expediting matters. It is a rebuttable presumption of law premised on length of time of absence of a person. Seven years is arbitrary. The people likely to hear from such a person are members of the persons immediate family. For the presumption to hold the persons have to be, There are people who would likely to have heard from that person in that period. That those persons have not heard from the person; All due enquiries have been made as appropriate in the circumstances. Chard V. Chard (1956) 2 AER 259 In this case parties to a marriage celebrated in 1933 sought decrees of nullity on the grounds that the husband had been through a marriage ceremony in 1909. The first wife in respect of whom there was no evidence of ill health or registration of death was last heard of in 1917 and would be aged 44 in 1933. There were reasons which might have led her not to wish to be heard of by her husband or his family in that between 1917 and 1933 the husband was continually in prison. The question was whether one could presume that she was dead and therefore hold this marriage of 1933 valid. The court held that there was no evidence of a person who would have been likely to have heard of the first wife between 1917 and 1933 and consequently the presumption of death was inapplicable in which case the nullity would not go through but they would have to bring in more evidence. 21

Prudential Assurance V. Edmonds This was an action based on life insurance. The issue was whether the defendant was dead or alive. The defence was that the defendant was not dead. The family gave evidence of not having heard from the man for more than 7 years. However, his niece had written to her mother from Australia stating to have seen him in the street in Melbourne but that he was lost in the crowds before she could speak to him. The court here held that the presumption of death could not hold in the light of this evidence by the niece. Re Phenes Trusts Case dealing with a persons inheritance. PRESUMPTION OF MARRIAGE: When does the presumption of marriage arise? This arises in two situations, Where there has been a ceremony of marriage and subsequently cohabitated. If the parties had capacity to contract a marriage then the law presumes that they are validly married. You establish presumption of marriage through ceremony and cohabitation. One talks of formal validity of the marriage this is the law of the place where you purport to have gotten married (i.e. law of the locus or lex loci of celebration of the marriage) once it is admitted that a marriage was celebrated between 2 persons who intended to marry then the formal validity is presumed to exist. Piers V. Piers the couple got married in a private dwelling house while the law required as a prerequisite for the validity of such a marriage that a special licence be obtained. The Piers did not get that kind of licence and when the marriage turned sour, the validity of the marriage was questioned. It was held that the presumption of marriage in favour of the legality of marriage is not to be lightly repelled. The evidence against it or evidence to rebut it must be strong, distinct, satisfactory and conclusive. Maherdavan V. Maherdavan Deals with a marriage. Whether it was valid or not valid (formal validity or conforming to the law of the land) Essential validity: this essentially speaks to people living together as man and wife. This will go to prove of the ceremony itself. The law here is liberal. There does not have to have been a ceremony at the Registrars office, it could have been a customary law marriage. R V. Shaw (1943) Times Law Report 344 This was a case of bigamy where there was proof of celebration of a prior marriage and the accused did not give evidence to rebut this evidence. The man though he denied did not bring evidence to rebut. 3. COHABITATION: This is where a man and woman live together and hold themselves as man and wife to all whom they interact with. There is a presumption that they are married. That at some point they got married. Re Taplin Mary Njoki V. John Kinyanjui Mutheru & Others CA 71 OF 194 Mary Njoki was a girlfriend of the deceased since her university days and his at the school of law. They were to be seen together during the holidays. He would save some money from his allowance and send to her at campus. After their graduation they lived together at different places and then the deceased expired. Njoki sought a share of the deceased estate. This move was opposed by the deceaseds brothers who argued that she was not a wife. The court held that the presumption of marriage could not be upheld here. The judges stressed the need for quantitative and qualitative cohabitation. Long and having substance. They gave examples as in having children together, buying property together which would move a relationship from the realm of concubinage to marriage. Aronegary V. Sembecutty It was held that where it is proved that a man and a woman have gone through a form of marriage, the law will presume unless the contrary be proved, that they were living together in consequence of a valid marriage and not in a state of concubinage. Case V. Ruguru [1970] E.A. 55 Where the Plaintiff a white man was cohabitating with the defendant after a while the relationship became sour. It was alleged that the plaintiff sued for eviction of the Defendant on trespass and to his defence the Plaintiff 22

called evidence that he had actually been married to a white woman in 1996 and the marriage had not been dissolved. He admitted having lived with the Defendant for sometime and having paid Kshs 3,000/= as dowry. Evidence showed that Kshs 3,000/= was not dowry and that no ram had been slaughtered as required by customs. The court held that as a mere licensee the Defendant was liable for eviction for trespass. HOTTENSIAH WANJIKU YAWE V. PUBLIC TRUSTEE C. A. 13 of 76 Yawe, a person from Uganda resident in Nairobi was killed in a road accident in Uganda in 1972. He was a pilot with East African Airways and lived in Nairobi West. After his death, the Appellant Wanjiku claimed to be his widow and claimed that she had 4 children. Some Ugandan claimants however denied that she was his wife and that the deceased was not married. Evidence was called which showed that the deceased lived with the Appellant as a wife and also when he applied for a job he had named the Appellant as a wife and the two were reputed as man and wife and cohabited as man and wife for over 9 years. The Court held that long cohabitation as man and wife gives rise to presumption of marriage and only cogent evidence to the contrary could rebut such a presumption. WANJIKU V. MACHARIA [1968] Wanjiku petitioned for maintenance from Macharia calling to her aid a marriage certificate. The two had gotten married in 1963, stayed together as husband and wife until the relationship turned sour. She had testified on oath that she had been married to another man in 1953 or thereabouts. The court held that they would not presume marriage because all that was required to rebut presumption of marriage by cohabitation was some evidence that leads the court to doubt the validity of marriage. In the words of the court, Wanjiku had no validity of marriage. KIZITO CHARLES MORAA V. MRS MARY ROSE VERNOUR ALIAS ROSEMARY MORAA. C.A. NO. 61 OF 1984. The Appellant sued for trespass and various acts of nuisance and a declaration that the Respondent was never his wife. The Respondent had been married to a Mr. Vernour who had fathered one of her children and they had gotten married in a marriage of convenience. She had been a headmistress and a pregnancy would have embarrassed her. Mr Vernour left for England whereupon she moved to stay with the Appellant for 4 years and had 3 children. Trouble started when they had a mentally retarded child. It was argued in court on her behalf that a presumption of marriage be held. The court held that no marriage could be held and the marriage between her and Mr Vernour had not been over, she had no capacity to marry and her cohabitation was adulterous which had unfortunately brought forth children.

IRREBUTABLE PRESUMPTIONS OF THE LAW Presumption of legitimacy Section 118 The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days (280) after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. Gordon V. Gordon (1903) A C 141 The husband brought divorce proceedings against the wife on grounds of adultery. Divorce was granted and the custody of the children was given to the husband. The wife applied for variation on the grounds that one of the children was not the natural child of the father but a son of the correspondent. The court held that sexual intercourse between a man and wife must be presumed and nothing can bastardise a child born in wedlock. 23

Poulet Peerage (1903) AC 395 (Presumption of Legitimacy) When there is an irrebuttable presumption of the law, you cannot bring evidence here, a child under 8 cannot commit a crime and a boy of under 12 years cannot know a person carnally. The reason you have presumptions is to save the court time. On the other hand, there are some things that should not be brought under court inquisition. The difference between of law and presumptions of facts. UNIVERSITY OF NAIROBI FACULTY OF LAW XXX LLB II 2003 LAW OF EVIDENCE: Lesson 5 ADMISSIONS Under the Evidence Act an admission is defined as a statement oral or written which suggests an inference to a fact in issue or a relevant fact made by one of the parties to the proceedings. Admissions are classified into Formal Admissions; Informal Admissions; Informal admissions are those admissions that are made before any proceedings are anticipated and this is covered at Section 17 to 24 of the Evidence Act. Formal admissions are made in the context of specific proceedings and the effect of formal admissions is that they dispense with proof with regard to the be made. They will be made in answer to a notice to admit and they could also be made by Affidavit. The distinction between formal admissions is that formal admissions are made with respect to proceedings while informal are made with respect to anticipated proceedings. In the area of criminal law, admissions will be under what is called confessions. Sections 25 32 deal with confessions. According to Section 24 admissions are not conclusive proof of the matters that they admit but they could operate as estoppels and many writers on S. 24 wonder why the legislators put that provision knowing that under Common Law Admissions if admitted are conclusive proof. But essentially we are saying even though they are not conclusive they amount to estoppel. The idea of estoppel in admission is to prevent a person to assert things that are at variance with things they had admitted before. Section 61 deals with facts admitted in Civil Proceedings is to the effect that no fact need to be proved the main principle is that once you admit certain facts, you will not be required to prove those facts but unless the court may by discretion require those facts to be proved.

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ESTOPPEL: What are Estoppels? Estoppel refers to a rule of law whereby a party to litigation is stopped from asserting or denying a fact. It is a rule of exclusion which makes evidence improve or disprove of a fact inadmissible. There is said to be an estoppel when one is forbidden in law to speak against his own act or deed even though that person is trying to tell the truth. For that reason then Estoppel amounts to a disability which precludes parties from alleging or proving illegal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to the disability. Essentially at a conceptual level estoppel will stop a person from bringing in information, which should be at variance with actions that this person has engaged in before. Estoppel has different aspects. You can look at it from adjectival or procedure. The fact aspect is as a rule of evidence and in this capacity of adjectival procedural realm, it makes evidence inadmissible. The second aspect which is still a rule of procedure is as a facet of the law of pleadings. The party who proposes to rely on estoppel must raise it in the proceedings. If the person fails to raise estoppel in the pleadings, it can amount to a waiver of the Estoppel. Moorgate Mercantile Co Ltd v. Twitchings [1975] 3 AER 302 This case is authority for the proposition that you must plead your estoppel. The Plaintiffs a finance company, were members of an organisation, HP Information Ltd (HPI), set up to prevent fraud in connection with hire-purchase agreements. Finance Companies would inform HPI of any hire purchase agreement that they had entered into in relation to a car so that in the event of a car dealer being offered a car for sale, the dealer could contact HPI to discover whether it was the subject of a hire-purchase agreement. The Plaintiffs let a car on hire-purchase to M. By some unidentified mistake or oversight on the part of the plaintiffs, HPI were not informed of the agreement. M, falsely asserting that he was the owner of the car, offered it for sale to the defendant, a car dealer. The defendant contacted HPI, who informed him that the car was not registered with them. The defendant bought the car and later sold it. The plaintiffs sued the defendant for its conversion. A majority of the House of Lords held that the plaintiffs were under no legal duty to the defendant to register or to take reasonable care in registering with HPI the hire-purchase agreement in question and accordingly that an estoppel by negligence could not arise to prevent them from proving their claim against the defendant. The third aspect of estoppel is as a facet of substantive law and it can amount to a defence barring the plaintiff from proving some fact essential to his or her case. Our Evidence Act does not define Estoppel and the definitions of Estoppel that we have are drawn from case law and the original source of the word Estoppel which is drawn from French word which means stop! Law v. Bourveries [1891]3 ch. 82 The case illustrates Estoppel as a rule of evidence and cannot be used to found an action. Can only be used as a shield and not as a sword. It is a substantive right that can bar a plaintiff from bringing in a fact; Some principles as to estoppel! Estoppel has to be mutual or reciprocal and consequently has to bind both parties; A stranger can neither take advantage of nor be bound by Estoppel. 25

Estoppel cannot be used to circumvent the law so you couldnt invoke estoppel to render an invalid act valid or vice versa. Estoppels must be certain and this is to say that the statement which forms the basis of an estoppel should be precise clear and unambiguous. It should be incapable of being read in more than one way. It should lead a person to just one conclusion. It is immaterial whether the makeup of the statement or the representor believes it to be true or false i.e. if you make a reckless statement which lead people to make reckless statements to their detriment, you will be estopped. The representation which is the basis of an estoppel must be a statement or representation of fact which existed in the past or is existing at the time of the making of the statement or representation. It should not be a promise in futuro It is not essential that intention to deceive or defraud must be there for estoppel to be there. Suffice it that you made the representation and a person has changed their statement then estoppel will arise. The effect of estoppel is to bind a party and to prevent them from relying on certain facts and denying certain facts. A good example is the case of Moorgate V. Twitchings where an owner of property entrusted his property to the care of another person. By his conduct that other party had albeit unintentionally by his conduct led a third party to believe the owner had no title to the property. The third party acted in reliance to that belief and the owner was held estopped from asserting his title against that third party who had acted in the belief that the owner had no title because of the representation through conduct of the owner who had been left in charge of property. This person acted on the best evidence that he had. Only the person in charge of the property would have known better. And the court held that the owner was estopped from CRABB V. ARUN District Council 1976 1 Ch 179 The plaintiff owned a piece of land which had access at point A on to a road owned by the defendants. And the Plaintiff also had a right of way from that point A along this road. To enable him to sell his land in two parts, the plaintiff sought from the defendant a second access point and he also wanted a further right of way from point B. at a site meeting held between the plaintiff, his architect and a representative of the Defendant, the additional point B was agreed to. Subsequently the defendants fenced the boundary between their road and the plaintiffs land erecting gates at B and A. after the Plaintiff sold part of his land together with the right of access at A and also going with the right of way onto the road, the defendants removed the gates at B and fenced the gaps. Essentially that blocked the links between A and B the Plaintiff sued for a declaration and injunction claiming that the Defendants were estopped by their conduct from denying him a right of access at B and a right of way along the road. The trial court held that in the absence of a definite assurance by the defendant no questions of estoppel could arise. There were no assurances that he would forever have the right of way at B. consequently the plaintiffs action was dismissed. On Appeal by the plaintiff, it was held that The defendants knowing the plaintiffs intention to sell his land in separate portions by their representations led the Plaintiff to believe that he would be granted a right of access at B and by erecting the gate and failing to disabuse him of his belief encouraged the plaintiff to act to his detriment. Equity should be satisfied by granting the plaintiff a right of access at B and a right of way along the road. In view of the sterilization of the plaintiffs land for a considerable period resulting from the Defendants acts, the right should be granted without any payment by the Plaintiff. There are 4 general classifications of Estoppel Estoppel by Record Estoppel by Deed Estoppel by Agreement Estoppel by Conduct. 26

ESTOPPEL BY RECORD Arises mostly out of judgments and is predicated on the premise that in the interest of the public there should be an end to litigation. It is important that once a matter is adjudicated upon, parties do not live in fear of its being subsequently resurrected. After a judgment has been announced by a court of competent jurisdiction, the unsuccessful party cannot challenge this judgment by raising the same point in another action against the successful party. The prerequisites for there to be estoppel by record is that the matter should have been adjudicated by a court of competent jurisdiction and a matter adjudicated upon by a court of competent jurisdiction cannot be reopened. Records refer to both proceedings and judgment and for estoppel to arise the judgment has to be impeachable so estoppel or record arises when an issue of fact has been judiciary determined in a final manner between the parties by a competent court and the same issue comes directly in question in subsequent proceedings between the same parties. For the purposes of Estoppel by Record judgments are divided into two. Judgments in rem Judgments in personnam A judgment in rem is an adjudication on the status of a person or a thing and examples of judgments in rem will be judgments in divorce proceedings, probate proceedings, bankruptcy proceedings. All these have implications for the status of persons or things. Section 44 (1) of the Evidence Act defines judgments in rem. Essentially the judgments are conclusive proof of the matters they adjudicate against all persons in the world. Not as against any specified persons but absolutely. And as between parties to the suit it is conclusive evidence for the reasons for the decision. Judgments in personam are those that do not fall within the definition in S. 44 i.e. do not affect the status of person or thing e.g. judgments involving contracts or torts. They are conclusive proof as to the matters adjudicated upon and the reasons for the judgment between the parties to the proceedings. They do not bind the whole world but only the parties to the proceedings. Both judgments in rem and in personam give rise to 2 kinds of estoppels Cause of Action Estoppel Issue Estoppel Course of action, once an issue has been adjudicated the same persons cannot bring it up again Course of Action Estoppel is based on the notion that a course of action is dealt with on a judgment and so parties to the action will be prevented from asserting or denying as against what was found so if a particular course of action was found to exist or not to exist, the same parties will not be allowed to revisit the same issue. But note that it should have been the same parties. Parties can be injured by the finality of this course of action.. a good example is the case of CONQUER V. BOOT [1928] 2 KBR 336 In this case the plaintiff had received decision on a course of action arising out of the defendants breach of a warranty to build a house in a good and workman like manner. It was held that the plaintiff was estopped from making a claim for further loss (the plaintiff had already been paid damages) by reason of same breach of warranty which he had suffered subsequent to the original litigation. 27

PURSER V. JACKSON [1977] QB Where a contract provides for arbitration in respect of disputes as and when they arise an earlier submission to arbitration does not prevent the submission to arbitration of a dispute which subsequently arises. The earlier submission operates as an estoppel only in respect of the matters which it actually covered. If parties agree that they will submit their grievances when they arise the fact that you have given the matter to arbitration. The estoppel operates only as estoppel on matters that were covered in the pleadings so you could still bring other matters. There are 3 main distinctions Issue Estoppel applies only to the issues raised and actually determined in the earlier proceedings. It cannot arise where a party has come into possession of fresh evidence. With regard however to course of action estoppel it can actually apply not just in respect of matters that a court was called to decide upon but also matters which the plaintiff exercising due diligence or reasonable diligence could have brought forward against the defendant. All matters or claims against the defendants which the plaintiff exercising diligent powers could have brought forward. Only these will form the basis of the Estoppel. Whether it be issue estoppel or course of action estoppel the requirement of estoppel by record are the same apart from the nuances that you go to stay a final judgment, same parties litigating in the same capacity and same issues. When you talk of same parties estoppel only operates when the parties are the same as the parties in the original suit. It does not have to be them in person but it could also be their agents. TOWNSEND V. BISHOP [1939] 1 AER 803 A plaintiff claimed damages for injuries he sustained while driving his fathers car which collided with the defendants lorry. In earlier proceedings brought by the father against the defendant, in respect of the damages to the car the defendant had succeeded on a plea of contributory negligence on the part of the son who had been active as his fathers agent. The law at that time was that contributory negligence was a complete defence. On a plea by the defendant or course of action Estoppel it was held that the parties to the 2 actions being different, the plaintiff was not estopped from denying his contributory negligence. SAME CAPACITY An Estoppel by record can only arise where parties to the proceedings litigate in the same capacity as they did in their previous proceedings. Marginson v. Balckburn [1939] 2 KB 726 There was a collision between Marginsons car driven by his wife as his agent and an omnibus driven by Blackburn servant. Marginsons wife died, Marginson was injured and several houses were damaged as a consequence of the accident. Owners of the houses succeeded in an earlier action for damages against Marginson and Blackburn. It was held that both Marginson and Blackburn were vicariously liable for the negligence of their respective drivers who were adjudged equally to blame. Estoppel was alleged and it was held that Marginson was estopped from denying his wifes contributory negligence in relation to the claim. As her personal representative he was not stopped from denying her contributory negligence because he appeared in a different capacity from that which he had litigated before.

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Finally on same issues, Estoppel will only operate if the issue with the proceedings in question is the same in that which was pleaded. The court will refer to the pleadings argued and reasons given for the judgment. Randolph V. Tuck [1962] 1 QB 175 MILLS V. COOPER [1967] 2 Q.B. 459 HENDERSON V. HENDERSON [1843 1860] AER 310 LIMITATIONS TO ESTOPPEL BY RECORD 1. Matrimonial Cases: Matrimonial causes are not entirely adversarial. Essentially estoppels in a matrimonial cause will bind the parties to the matrimonial cause but not the court. Thomson v. Thomson: Lord Denning Once an issue of a matrimonial offence has been litigated between parties and decided by a competent court, neither party can claim as of right to reopen the issue and litigate it all over again if the other party objects. However the divorce court has the right and indeed the duty in a proper case to reopen the issue or to allow either party to reopen it despite the objection of the other party. If the party objects to reopening of the case, one could not open the issue without going to court. In criminal cases the course of action estoppel will be pleaded by the plea of autre fois acquit (accused was previously acquitted) and autre fois convict (accused was previously convicted). An accused is estopped from denying his guilt or wrong in a subsequent trial where guilt issue arises. This is provided for in Section 47 (a) Robinson V. Oluoch Queens Drycleaners V. East African com et al In both these cases the court emphasized that in civil and criminal proceedings, the accused is estopped from denying the conclusive nature of his conviction i.e. if an accused is found guilty of dangerous driving, then a subsequent suit if filed for negligent behaviour the accused is estopped from denying. A judgment in a civil case is not conclusive proof of matters decided in a criminal case. It would be admitted as relevant to the issue but standard proof will be much higher. ESTOPPEL BY DEED: The principle underlined here is that persons who make solemn assertions or engagements under seal must be bound by those engagements. Parties to a formally executed and sealed deed and their privies by any evidence which is less formal and solemn. This Role is subjected to: It only applies between parties of privies to the deed and only in proceedings on the deed.

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No Estoppel will arise upon recitals or descriptions which are immaterial or not intended to bind (there will be instances where a recital ) No Estoppel arises where deed is tainted with fraud or illegality. For a recital to a deed to form the basis of estoppel by deed, it has to contain: Unequivocal statement of facts; There has been a contract as a result of the unequivocal statement; The statement is from both parties; There has to be an action arising from it. East Africa Power & Dandora Quarries The Late Justice Channan Singh considered recitals for the basis A recital especially one relating mainly to the history of the relationship and reasons for entering into an agreement, is not a term of a contract although it arises of ambiguity in the operative part a recital may be used to resolve the parts of that ambiguity. The Plaintiff sued the defendant on a mini consumption agreement for the supply of electricity under which the defendant undertook to pay the minimum annual charge of KShs. 12,840/- for a period of 46 months beginning 1st January 1965. The defendant did not dispute the agreement but claimed that it was void and unforceable for the following reasons: There was no consideration; It was illegal and not in accordance with the charging provisions of the Electric Power Act; Plaint disclosed no cause of action because the plaintiff had at the material time no licence under the said Act; The Plaintiff argued that the Defendant was estopped from denying the consideration which was stated in the Agreement as being a request by the defendants that the Plaintiff company should carry out certain works towards the installation of an electrical energy supply in return for which the defendant agreed to sign the minimum consumption agreement. The defendant challenged the Evidence of the plaintiff in regard to a licence to generate or supply electricity. As a matter of fact the plaintiff did not remit original licences or renewals of the licence. The court held that there was no estoppel operating to prevent the defendant from challenging the considerations stated in the recitals to the Agreement but on the Evidence that the plaintiff had shown that there was good consideration. And also there was no evidence to rebut the presumption that the licence granted to the Plaintiff company had been renewed at the proper time, place and proper procedure. (presumptions of regulation). Grier V. Kettle Judgment of Judge Russell on recitals as the basis for Estoppel. UNIVERSITY OF NAIROBI FACULTY OF LAW XXX LLB II 2003 EVIDENCE LAW Lesson 6 30

ESTOPPEL BY AGREEMENT This is a rule of evidence whereby two or more persons have expressly or impliedly agreed that their legal relations shall be based on the assumption that a particular state of facts exists. Those parties are precluded from denying the existence of the assumed facts. An example of this kind of Estoppel is found in S. 121 of the Evidence Act the Estoppel of a tenant or a licencee. It says that no tenant is allowed to deny that at the commencement of the tenancy that his landlord had title to the property. The section deals with both estoppel of tenant and estoppel of licensee. Rodseth V. Shaw [1967] This involved a tenancy for residential tenancy and when the landlord gave the tenant notice to quit at a particular time, the tenant sought to introduce circumstances that had prevailed ten years prior to the commencement of the lease which circumstances incapacitated the landlord from leasing out the premises. What in effect the tenant was saying was that the landlord never had title and could not have leased out the The court held that a tenant cannot deny that the landlord had title to grant the lease at the commencement of the tenancy if he accepts the agreement or in other words becomes a persons tenant then he is deemed to acquiesce in the landlords want of title. Ravi Bin Mohammed v. Ahmed [1957] E.A. 782 Ahmed was a subtenant and he managed to buy the premises for which he was a sub tenant. The tenant of the main landlord continued asking Ahmed for rent and the question arose as to whether the first tenant could insist on getting rent from Ahmed on the basis of S. 121. The court held that NO that first tenant could not continue asking Ahmed for rent because Ahmed was not estopped from pleading and proving that his landlords title had been determined. In the words of the Court Estoppel prevents a tenant from disputing a landlords title at the time of granting the lease not subsequently thereafter. That fact is borne out of the wording of Section 121 to the effect that No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had at the beginning of the tenancy a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that such person had a right to such possession at the time when the licence was given. NO PERSON WHO CAME UPON ANY IMMOVEABLE PROPERTY BY THE LICENCE OF THE PERSON THEREOF SHALL BE PERMITTED TO DENY THAT SUCH A PERSON HAD A RIGHT TO SUCH PROPERTY. A Licensee will not be allowed to deny that the licensor had the right to the property to which the licence was granted. (Licence is the relationship between a licensor and licensee) Under S. 122 - there is the Estoppel of Acceptor of a Bill of Exchanged S. 122. No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority to draw such bill or to endorse it: Provided that the acceptor of a bill of exchange may deny that the bill was in fact drawn or endorsed by the person by whom it purports to have been drawn or endorsed. It is to the effect that no acceptor of a bill of exchange shall be permitted to deny that the drawer had authority to draw such a bill or to withdraw such a bill or to draw it. The Acceptor is the financial institution and the drawer is the person that writes out the bill of exchange or other negotiable instrument. It is important to point 31

out that the Bank or Financial Institution can deny the fact that the cheque was drawn by the right person, but the acceptor should not deny the drawer the right to draw. If the Bill of Exchange is a forgery it is upto the bank to prove it. S. 123 deals with a variety of estoppels by agreement. The one being between the licensor and licensee, bailor and bailee, principal and agent. No licensee is permitted to deny that the licensor had a right to possession of property when the licence was given. Under this section no bailee will be permitted to deny that the bailor was entitled to the goods at the time he entrusted them to him. If you are a bailee you will not be allowed to deny that the bailor was entitled to the goods when they were given to you. The bailee can however show that he was compelled to deliver the goods to a person who had a right to them as against the bailor. The bailee can also show that the bailor without the bailees notice obtained notice from a third party who has now claimed the goods from the bailee (in case of a court order where the goods have been contested and the person with a superior right may have given the bailor notice that they will collect the goods and if the notice is not contested then they can have the goods). There can be third parties who can have superior titles to that of the bailor. PRINCIPLE & AGENT ESTOPPEL This is to the extent that if you are an agent to whom any goods have been entrusted, you will not be permitted to deny that the principal was entitled to the goods at the commencement of the principal/agent relationship. This is provided for in S. 123. If one is an agent and a person with a superior title gets and order you may be compelled to give the goods to the third party. ESTOPPEL BY CONDUCT The conduct should be such as to cause or permit a person to believe a thing to be true and the person must have acted in some way on this belief. That person must have acted in that belief either in doing or omitting to do something thereby altering his position to his detriment. Hopgood v. Brown [1955] 1 ALL ER 450 In this case the Judge said where one person the representor has made a representation to another person the representee in words or by acts or conduct or being under a duty to speak or act by silence or inaction with intention actual or presumptive and with the result of inducing the representee to alter his position to his detriment the representor in any litigation which may afterwards take place between him and the representee, the representor is estopped as against the representee from making or attempting to establish by evidence any averment substantially at variance with his former representation if the representee at the proper time and in the proper manner objects thereto. It is important to compare Lord Evershed statement with what is contained in S. 120 under this section one need not have acted to their detriment, suffice it that they acted. The requirement for estoppel by conduct can be summarised as follows Representation must be made with the intention that it be acted upon, it must be a wilful intention. Under the Rule in Hopgood it would go further where you are under a duty to speak, act or take care, if you make a negligent statement you will be estopped from denying the statements truth or if you are under a duty to act and you dont take any action then you would be estopped. You could make a positive representative in the sense that you were expected to act or speak and you didnt. This failure would be what people relied on and it could give rise to estoppel. Greenwood V. Martins Bank [1933] A husband and wife had a joint account in Martins bank and the bank undertook to honour cheques signed by both signatories. Afterwards the account was closed and an account opened in the sole name of the husband the 32

wife having no authority to draw cheques on that account of the husband. During all this time the wife repeatedly forged her husbands signature to the cheques and drew out money which she applied to her own uses. The husband became aware of these forgeries but was persuaded by the wife to say nothing about them. He kept quiet for 8 months when he finally decided to report the forgeries. The wife committed suicide. The husband then brought a suit against the bankers to recover the sums paid out of the sole account on cheques to which his signature had been forged. The court held firstly the Plaintiff owed a duty to the defendant bank to disclose the forgeries when he became aware of them as this would have enabled the bank to take steps to recover the money wrongfully paid to the wife. Secondly, through his failure to fulfil this duty, the bank was prevented from bringing an action against the plaintiff and his wife for the tort committed by the wife and thirdly, he had only brought the matter forward after the death of the wife. The plaintiff was estopped from asserting that the signatures from the cheques were forgeries and consequently he was not entitled to recover the money that he was seeking from the bank. The second requirement is that the representation must be clear and unambiguous. This is to enable the parties to exactly know the import of the situation. Century Automobiles v. Hutchings Biemer [1965] One of the statements made is that the level of precision should not be a lawyers statement. The representation must be one of fact. Fourthly the representation must not have the effect of sanctioning something prohibited by law. Income Tax Commissioners v. A.K. [1964] The Judge pointed out that no estoppel whatever its nature can operate to annul statutory provisions because it is statutory duty to obey the law. Chatrath v. Shah [1967] where it was stated that the doctrine that there can be no estoppel against a statute simply means that an estoppel cannot render valid something which the law makes invalid so that if a statute declares a transaction to be invalid or expressly declares that something should not be done, then estoppel cannot be used to override the specific directions of the law. PROMISSORY ESTOPPEL: Promissory Estoppel is an exception to the general rule. It deals with the future state of affairs and occurs where a person makes a representation to another about the state of their future legal relations or their future conduct and the other person acts upon that. In this instance, an equitable estoppel arises such that the representor is estopped from denying the representation. Nurdin Bandali v. Lombank Tanganyika Ltd. In this case a lorry was bought on hire purchase terms. Buyer was late in one of the payment but when he later presented the money to the seller, it was later accepted. Just before he completed paying off the sums owing on the lorry, he was again late in depositing the payments. The Hire Purchase company seized the lorry and sought to sell it to recover the unpaid balance. The question arose as to whether the sellers had by accepting payments late waived their rights under the Hire Purchase Agreement. Consequently was the Hire Purchase Company estopped from falling back on the Hire Purchase Agreement. It was held that no waiver or estoppel arose on the facts of the case. But the court recognised that promissory estoppel did indeed exist in East Africa in the Judges view, the word thing, used in S. 120 was capable of wide interpretation and could comprise an existing state of affairs, legal relationships or future conduct. And in stating that, the Court relied on the High Trees case Central London Property Trust Ltd. V. High Trees House Ltd [1947]KB 134 33

In this case, by lease under seal dated September 24th 1937 the Plaintiff let to the defendant a block of flats for a term of 99 years with effect from 29.9.1937 at a rent of 2500 per annum. Owing to the second world war, in the early part of the 1940s only a few of the flats were let, and it became apparent that the defendant would be unable to pay the rent reserved. After negotiations between the directors of the two companies, on 3rd January 1940, a letter was written by the plaintiff to the defendant confirming that the rent for the premises would be reduced from 2500 to 1250 essentially by half as from the beginning of the term. The Defendant paid the reduced rent. By the beginning of 1945 all flats were let out and in September of 1945 the Plaintiff wrote to the Defendants claiming that rent was payable at the rate of 2500. Thereafter, the Plaintiff initiated some friendly proceedings to claim the difference in rent for September to December 1945 quarter. In their defence the defendants pleaded that the agreement for the reduction of rent operated for the whole term of the lease and the plaintiff was estopped from demanding rent at the higher rate. It was held that where parties enter into an arrangement which is intended to create legal relations between them and in pursuance thereof one party makes a promise to the other, which he knows will be acted upon, and which infact is acted upon by the promisee, the court will treat the promise as binding on the promisor to the extent that it will not allow him to act inconsistently with it even though the promise may not be supported by consideration in the strict sense. The effect of the arrangement may be to vary the terms of the contract under seal by one of less value. The second holding was that the arrangement between the parties in 1945 was one which fell within the first category, i.e. where you made a promise and were bound by the promise and so the agreement of the promise was bound on the promisee but it only remained operative so long as the conditions giving rise to it continued to exist and once those conditions ceased to exist in 1945 the plaintiffs were entitled to recover the full rent claimed at the rate reserved by the lease document. In Century v Hutchings the issue of promissory was also discussed There must be a clear and unequivocal representation. There should also be an intention that it is acted on. There has to be action upon the representation in the belief that it is true. Authorities are not in agreement but essentially that estoppel could be a principle of procedure and it could have aspects of substantive law where it could debar a person from raising a defence open to them. So you can have estoppel as a rule of procedure or as substantive law. The case of Law v. Bouvaries Estoppel is perceived as an aid to prove not as being essentially a principle on which you could found a case but in Canada v. Dom the court felt that Estopel could be viewed as substantive rule of law. Combe v. Combe discusses these elements on what the place of estoppel in law is, is a rule of evidence or substantive law. PRIVILEGE & PUBLIC POLICY: These are matters that need not be adduced and are precluded by public policy. They are discluded from disclosure by public policy. The person with the information cannot waive the right not to disclose information. You are obliged to insist on none disclosure. The court may on its own volition object to such matters being adduced in evidence. If a matter is discluded from public disclosure, even matters of secondary evidence cannot be adduced Section 131. Whenever it is stated on oath (whether by affidavit or otherwise) by a Minister that he has examined the contents of any document forming part of any unpublished official records, the production of which document has been called for in any proceedings, and that he is of the opinion that such production would be prejudicial to the public service, either by reason of the content thereof or of the fact that it belongs to 34

a class which, on grounds of public policy, should be withheld from such production, the document shall not be admissible. PRIVILEGE: Privilege as against public policy is personal to whomever it is conferred upon and can therefore be waived. If you have a privilege you could decide to waive it. The information in respect of which you could waive if it comes to the possession of a 3rd party, the 3rd party can disclose the information. Privilege is personal to whom it is conferred. It is not the information that is privileged, it is the person. Communications during marriage are privileged (S. 130) in a situation where two parties are married, they enjoy the privilege. If the husband discloses to the wife that he committed a crime, the wife is privileged but if a wily housemaid overhears the conversation, she can disclose. Public policy requires that if you are possessed of information, it is not to be disclosed. Privilege may be broadly divided into two parts; private and official. Official privilege flows from the official status of a person. It includes the privilege of judges and magistrates, public officers in connection with official information. A Police Officer can claim privilege in court not to disclose his source of information. Privilege of an accused person against self incrimination, privilege of witnesses, spouses and legal professional privilege. Privilege is granted to the client in an advocate/client relationship. CATEGORIES OF PRIVILEGE: Privilege of accused persons Section 77 of the Constitution read together with Section 127 (2) of the Evidence Act spell out that an accused person shall not be compelled to testify at his trial. Where an accused has been compelled to fill a form i.e. in tax matters, could an accused person be compelled to disclose the information. El Mann V. R [1969] E.A. 357 The accused had been required to answer certain questions for income tax purposes. He had no choice but to fill the questionnaire because failure to do so would have been an offence. The form disclosed certain offences. Counsel for accused objected to use of the information and called to his aid Section 77 of the constitution which enshrines privilege against self incrimination. The matter was taken to constitutional court which ruled that Section 77 was clear and unambiguous. It referred to the accused not testifying at his trial and did not refer to places outside the trial. Filling out the questionnaire was not a trial and therefore not covered under Section 77. Private privilege of witnesses Section 128. To the effect that a witness is not privileged from answering questions that will incriminate him/her or expose witnesses to penalties. The privilege is that the answers they give during trial will not be used against them so that there can be free flow of information. The information can only be used on prosecution for perjury. PRIVATE PRIVILEGE OF SPOUSES S. 130 (1) No spouse can be compelled to disclose any information made to her/him during marriage. There are however exceptions to this rule. Cases involving one in the offence of bigamy; 35

Where you have offences against morality if one spouse is charged with an offence against morality. If one spouse is charged with an offence against morality privilege does not hold. Offence or torts involving persons or property or any child to the marriage. The privilege is to the spouse not on information. If the information comes to a 3rd party, privilege does not arise. Rumping V. D.P.P. [1964] A.C. In this case Rumping was a Dutch Seaman charged with murder. He gave a letter to a shipmate to post to his wife outside England. The letter contained a confession to the offence of murder. The letter was turned over to the police and the objection was raised on the admissibility of the letter on the grounds of spousal privilege. The court held that the letter was admissible in evidence because the privilege is inadmissible where the letter has been intercepted by 3rd parties. Section 1230 (2) in this section marriage means a marriage, whether or not monogamous, which is by law binding during the lifetime. LEGAL PROFESSIONAL PRIVILEGE S. 134 OF EVIDENCE ACT The upshot is that an advocate will not disclose communication made to them by their client. Not to disclose documents provided by clients or legal advice given to the client. It is a professional privilege. Section 134 (1) (a) (b) There are exceptions to the rule communication made in furtherance of illegal acts is an exception. If an advocate observes a fact which shows that a crime has occurred, since the commencement of the advocate/client relationship they can disclose that information. The exception delimits the purview of client relationship. The client can expressly consent to disclosure then the advocate can disclose. Omari s/o Hassan V. R. (1956) 23 E.A.C.A 550 The Appellant was convicted of murder and evidence rested entirely on 2 statements by the deceased that the accused was one of the persons who had attacked him. The trial judge after directing himself that such a statement should be accepted with caution found that there was corroboration in the Appellants refusal to testify particularly the accused informed the court that refusal to testify was against his professional advice. On Appeal it was held that although the judge was entitled to take into account a refusal to give evidence on oath, such refusal to give evidence cannot bolster a weak case of relief the prosecution of the duty to prove its case beyond reasonable doubt. Secondly the disclosure by the advocate that the accused had refused to follow his advice was a breach of professional confidence and the judge should not have allowed it to affect his professional mind. R V. King (1983) 1 AER 929 Under Section 135 of Evidence Act the legal professional privilege is extended to legal clerks or other servants. Section 136 therefore is a provision for waiver of the privilege and under that section just agreeing to give evidence on the part of the client does not amount to waiver of the privilege but if as a client you call on an advocate or his staff, you will be deemed to have waived your privileges. Section 137. Reaffirms the privilege given to the client in Section 134 and makes it clear that the privilege is for the client and not the advocate. Section 138 PRIVILEGE OF WITNESS IN CONNECTION OF TITLE DEEDS 36

A witness not a party to proceedings cannot be compelled to disclose or produce any documents of title relating to his property. Section 139 Deals with privileged documents in possession of another nobody can be compelled to produce documents in his possession which another person will be entitled to produce if they were in his possession. The person who should legally be in possession of that document could consent to its being availed. Secretary of State For Defence & Another v. Guardian Newspapers: British Steel Corporation v. Granda Television Ltd. Privilege will emanate from a persons official status vis--vis personal status. It is accorded to Judicial functionaries Section 129 Judges and Magistrates cannot be compelled to disclose except by a higher court which can compel them to disclose any matters which came to their knowledge in their official capacity. They may however be compelled to give evidence in a matter they observed in the course of doing something else. Public Officers Section 1232. Public officers shall not be compelled to disclose communications made to them by any person in the course of their duty if they consider that the public interest will suffer or be prejudiced by the disclosure. Dhukale v. Universal TOT CO. et al (1974) E.A. 395 Rishen Chand Mohindra V. Mathra Dass Section 133 No judge, magistrate or police or revenue officer can be compelled to disclose the name of his/her informants on the commission of an offence. This assists in people giving information freely. Kapoor Singh s/o Harman Singh V. R Where the Appellant was convicted over the unlawful possession of gold. Police received information from an informer and when they searched the house, it revealed that he was actually in possession of gold. The accused attempted to obtain the name of the informer during trial but he was overruled. In Appeal it was held that this is a clear and mandatory section and there was no discretion on the court to compel the policeman to disclose the source of information. Njunga V. R. (1965) E.A. 773 (K) The accused was driving a disguised motor vehicle, he was chased and apprehended. It was held that if he Evidence on which the court is relying is damaging. The police had been informed that under the drivers seat there were arms and when apprehended, there were actually arms under the seats. The accused was charged with being armed and with the intent to commit a felony. The court did not think that there was enough evidence of intent to commit a felony and that the informer should be brought to testify. 37

Section 131 delimits parameters of public policy. It outlines procedure to be followed when the state wishes to claim that the documents should not be produced lest they be prejudicial to the state. The Minister must state that he has examined the contents of the documents. He must state that such documents formed part of official public records. That after examining the document that he has formed the opinion that its production would be prejudicial to the public interest either by reason of its contents or because of the class to which it belongs and all these things have to be stated on oath. You are protecting secrets of the state disclosure of which would affect public policy. The danger has been that the privilege can be abused where government dignitaries proclaim all documents to be prejudicial and this had made courts in England ill disposed and they say that the courts have the duty to make up its mind and decide whether the documents are prejudicial. Duncan v. Camwell,Laird & Co. Ltd. Claim for negligence Re Grosvenor Hotel London No. 2 Conway v. Rimmer It is not all about a ministers decision but the court can look at the documents to see whether they should be withheld. The judge comes in to vindicate the public in free flow of information. Section 131 The ministers word is final appears to be final. Mudavadi v. Semo High Court Election Petition: Court said that the use of the words shall not leaves no discretion to judges to disagree with the ministers decision. Duncan Claim for negligence in relation to construction of a submarine

38

UNIVERSITY OF NAIROBI FACULTY OF LAW XXX LLB II 2003 LAW OF EVIDENCE Lesson 7 What is burden of proof? The term burden of proof draws from the Latin Phrase Onus Probandi and when we talk of burden we sometimes talk of onus. Burden of Proof is used to mean an obligation to adduce evidence of a fact. According to Phipson on the Law of Evidence, the term burden of proof has two distinct meanings Obligation on a party to convince the tribunal on a fact; here we are talking of the obligation of a party to persuade a tribunal to come into ones way of thinking. The persuasion would be to get the tribunal to believe whatever proposition the party is making. That proposition of fact has to be a fact in issue. One that will be critical to the party with the obligation. The penalty that one suffers if they fail to proof their burden of proof is that they will fail, they will not get whatever judgment they require and if plaintiff they will not sustain a conviction and if defendant no relief. There will be a burden to persuade on each fact and maybe the matter that you failed to persuade on is not critical to the whole matter so you can still win. The obligation to adduce sufficient evidence of a particular fact. The reason that one seeks to adduce sufficient evidence of a fact is to justify a finding of a particular matter. This is the evidential burden of proof. The person that will have the legal burden of proof will almost always have the burden of adducing evidence. Section 107 of Evidence Act Defines Burden of Proof Of essence to burden of proof is proving the matter in court. (2) Refers to the legal burden of proof. S. 109. Specifically exemplifies the Rule in S. 107 and it talks about proof of a particular fact. It is to the effect that the burden of proof as to any particular fact lies on the person who wishes to rely on its existence. Whoever has the obligation to convince the court is the person said to bear the burden of proof. If you do not discharge the burden of proof then you will not succeed in as far as that fact is concerned. Cases that exemplify Burden of Proof Ryde v. Bushell pg. 8 course outline The defendant was seeking to rely on the defence of act of God and the court held that if a person wished to rely on defence of act of God one has to establish it through aid. Omar Mohiddin V. Sikuthani Pg. 8

39

Where it is neither readily appreciated nor known that you are married to somebody the burden of proving that you are so married lies on you. The total essence of proof is that the burden is on the one who wishes to prove that they are married 11th Case Course outline Hakam Bibi v. Mistry Kimani v. Gikanga The principle is that if you want to rely on personal law, you have to establish what that law is. In Kimani a person sought to rely on customary law and if you are relying on customary law you have to establish what the law is. Commissioner of Income Tax v. Baku The principle is the same as in Valabras Shamzi v. Commissioner of Income Tax these two cases establish the principle that if you dispute tax on the basis that it is excessive, the burden of proof is on you. It is not up to the Commissioner to establish that it is excessive but it is in your interest to adduce evidence before the case to determine to what extent it is excessive. If you are the person with a legal obligation to establish a matter then the burden of proof is on you. GENERAL RULE: The general rule is that burden of proof is borne by the Plaintiff in Civil cases and by the Prosecution in Criminal Cases. Joseph Mbithi Maula v. R In this particular case the 1st Appellant was convicted for handling cows stolen by the 2nd Appellant. The trial Magistrate said in the course of his judgment None of the accused disputed the fact that the cows mentioned in the three counts belong to the Respondent owners and they had been stolen from their bomas during the material nights. They did not dispute the identity and ownership of the cows therefore I find all this as facts. The High Court affirmed the conviction but the court of Appeal found that the statement of the trial magistrate was a mis-direction. In the words of the Court of Appeal it was up to the prosecution to prove that the cows were stolen. In criminal cases the burden of proof has to be beyond reasonable doubt, having doubt or suspicion is not enough. In the words of the Court of Appeal, the mere fact that the accused kept quiet did not approve of the matters. Alois Nyasinga v. R In that case which was a murder trial, there was evidence that at the time that the appellant committed the offence he was drunk. He had stabbed the deceased the deceased in the neck inflicting him with a fatal wound. The trial judge directed himself and the assessors that it was for the appellant to prove that he was so inebriated as to be unable to form the intent to kill. On appeal, the decision of the first court was reversed by the Court of Appeal who said that the trial court had misdirected itself and the assessors on the matter of intent. The Judge should have explicitly told the assessors that it was not for the Appellant to prove that he was so drunk he could not form intent to kill or hurt the deceased. It was the duty of the prosecution to prove that the Appellant was not so affected as to be incapable of forming intent. even though if a person is trying to establish a defence and one wants the court to excuse them from having done something, say murder and you want to plead self defence, or insanity, while it is 40

incumbent for you to bring the matter before the court, it does not discount the prosecutions duty to establish the intent. Woolmington v. DPP The accused was charged with the murder of his wife. He gave evidence that he had accidentally shot her. the trial court directed the jury that once it was proved that the accused shot his wife, he bore the burden of disproving malice aforethought (intention). On Appeal to the House of Lords it was stated that the trial court direction was not appropriate, that it was a misdirection, and stated as follows: throughout the web of English criminal law one golden thread is always to be seen. That is the duty of the prosecution to prove the prisoners guilt subject to what I have said as to the defence of insanity and subject also to any statutory exception. He continues to say that no matter what the charge or where the trial the principle that the prosecution must prove the guilt of the prisoner is part of the law of England and no attempt to whittle it down can be entertain. In Woolmington you will see intimations as exceptions to the general rule.

BURDEN OF PROOF IN CIVIL CASES The principle is that burden of proof in civil cases rests with the plaintiff. Joseph Constantine Steamship Line v. Imperial Smelting Co. Ltd. [1942] A.C 154 In this case the plaintiff; Charterers of a ship claimed damages from the owners for failure to load. The defendants pleaded that the contract had been frustrated by destruction of the ship owing to an explosion the cause of which was unclear. Such frustration would have concluded the case in favour of the defendants in the absence of any fault on their part. The trial court held that the onus of proving or the burden of proving that frustration was induced by the defendant or by their default lay on the plaintiffs. The Court of Appeal reversed this finding holding that it was up to the defendants to establish that the frustration was not induced by their default. The case went to the House of Lords where the Appeal was allowed the House of Lords holding that the burden of proving that there was default on the part of the owners lay upon the plaintiffs. What we are saying that burden of proof by and large in civil cases is going to lie on the plaintiff. Levison & Another v. Patent Steam Carpet Cleaning Co. [1978] QB 79 The defendants were guilty of unexplained loss of a Chinese carpet which had been delivered to them for cleaning and which belonged to the plaintiff. A clause in the contract signed by the plaintiffs would have exempted the defendants from liability for negligence but not for any fundamental breach. The plaintiff sued the cleaners for loss of carpet. The trial court gave judgment against the cleaners. They appealed and it was held on appeal that in a bailment contract when a bailee seeks to escape liability on the ground that he was not negligent, or that he was excused by an exception or limitation clause, then he must prove what happened to the goods. Having failed to satisfactorily explain the circumstances surrounding the loss of the carpet, the carpet cleaner was liable. Burden of proof is on plaintiff in civil cases. EXCEPTIONS TO THE GENERAL RULE IN CIVIL CASES 41

What are the circumstances you have the burden of proof lying on the respondent? These are provided for in S. 112 which relates to facts within the special knowledge of a party to the proceedings. It is to the effect that if it is alleged that the facts are especially within the knowledge of a party, the burden of proving those will lie on such party. So it may happen that in the course of proceedings, there are certain facts that happen to be within the special knowledge of the respondent and the burden on prove will be on the respondent. The second exception is contained in S. 115 of Evidence Act which relates to disproving apparent special relationship. This section is to the effect that, When there is an apparent relationship between 2 or 3 people, the burden of proving that there is no such relationship is on the person alleging that the relationship does not exist. For instance if the question is whether there is a party averring that that there is no relationship between for instance a landlord and tenant. S. 116 this relates to disputing ownership. This section is to the effect that when you are shown to be in possession of anything, the burden of proving that you are not the owner of that which you possess will be on the person alleging that you are not the owner. This exception is explained away on the difficulty that one might visit on the people who would be under threat of people coming in and disputing ownership. Section 117 which deals with prove of good faith Where there is a question as to the good faith of a transaction between parties one of whom stands to the other in the position of active confidence, the burden of proving good faith of the transaction is on the person who stands in the position of active confidence in relation to the client.

EXCEPTIONS TO GENERAL RULE IN CRIMINAL CASES The burden of proof lies in the prosecution The constitution in S. 77 2 (a) provides that a person charged with any offence is presumed to be innocent unless he pleads guilty or is proved guilty by the prosecution. This provision imposes burden of proof on the prosecution. It is up to the prosecution to prove the guilt of the accused unless the accused pleads guilty. Where one pleads guilty, there is no contestation. To buttress this presumption is S. 77 (12) (a) nothing in any law shall be construed as being in conflict with S. 77 (2) (a) if the law in question imposes the burden of proof in specific parts on an accused person. This section saves the statutory provisions that there might impose burden of proof on accused persons on specific facts. What are the instances where specific facts require to be proved by an accused? S. 111 (1) K. E.A. If you are charged with an offence and you are in a position of claiming that you are exempted from liability for that kind of offence, it is your duty to bring the circumstances to the notice of the court. It is incumbent upon you to prove a fact. There is a derogation that the burden of proof in criminal cases lies on the prosecution. For instance if you have diplomatic immunity you must bring it to the attention of the court for the exemption. R. .v, Hunt (1987) 1 ALR 1 42

The accused was charged with unlawful possession of a prohibited drug. The relevant statute provided that it would not apply to any preparation containing not more than 0.2% of the drug. The defence submitted that there was no case to answer since the prosecution had not adduced evidence as to the percentage of the prohibited substance found on the accused. The defence was overruled and on appeal the court of appeal dismissed the appeal but at the House of Lords it was stated that A statute can place a burden of proof on an accused person and it can do this either explicitly or implicitly. A statute may be construed as imposing the burden of proof on an accused person but such a construction depends on the particular legislation. The statute however cannot be taken to impose the duty on an accused to prove his innocence in a criminal case. Public policy in this particular case favoured the position that the burden of proof was on the accused person. The Appeal was allowed. 2. S. 111 (2) (c) intoxication or insanity

The accused bears the burden of proof of intoxication or insanity if an accused person claims that he was so intoxicated as to be insane, he has to prove that but the duty of the accused only goes as far as proving that he was intoxicated and does not go to the level of proving that he could not form an intent. Godiyana Barongo s/o Rugwire v. R Defence of insanity through intoxication The burden resting upon an accused person when attempting to rebut a natural presumption which must prevail until the contrary is proven will never be the same as that resting upon the prosecution to prove the facts which they have to establish. It will not be higher than the burden which rests on a plaintiff in civil cases. Nyakite s/o Oyugi v. R[1959] In this case the evidence of the defence and the prosecution showed that the accused was intoxicated but the accused did not raise intoxication as a defence. The trial judge said that the burden of raising a defence of intoxication so as to negative intent was on the accused person. On Appeal, it was held that this statement was a misdirection and that the onus of establishing a defence is not on an accused person, if there is evidence of intoxication the court must consider it and determine whether it negative intent. The prosecution has to show that the intoxication was not as high as to negative intent. Nyamweru s/o kinyaboya v. R. (1953) The appellant was in an advanced state of intoxication when he killed his wife with a knife. He was convicted of murder. On Appeal it was held that whilst the plea of intoxication is a matter for the defence, there can be circumstances pointing to such a condition arising out of the prosecution case. The use of a lethal weapon may indicate a malicious intent but it is not conclusive of an intent to murder. It gave an example where the accused is so drunk that they are not able to form the intent not withstanding the use of a lethal weapon. Malungu s/o Kieti v. R Where the accused was convicted of murder and evidence established that the appellant was drunk by the time he killed. The assessors were of the opinion that the appellant was incapable of forming the intent necessary to constitute the offence of murder but the trial judge took the view that the onus of rebutting the presumption that he was capable of forming the necessary intent to kill was on the appellant. On Appeal it was held that the burden of proving that an accused is capable of forming the intent necessary to constitute the offence of murder 43

always remains on the prosecution. So even when the defence raises the defence of intoxication, the burden of prove is still on the prosecution. R v. Kamau s/o Njoroge R v. Saidi Kabila Kiunga There are other statutes apart from the Evidence Act that place burden of proof on the accused. The Public Order Act which is to the effect that the burden of proving lawful or reasonable excuse or lawful authority is upon the person alleging the same. The Prevention of Corruption Act Cap 65 which provides that any money paid or gift given to a public servant shall be deemed to have been paid or offered corruptly as an inducement or reward unless the contrary is proved. The Immigration Act, which is to the effect that in any proceedings under the Immigration Act if the question in issue is whether a person is or is not a citizen of Kenya, or whether or not a person is a diplomat or wife of child of such or whether or not any person has been issued or granted a passport, certificate, entry permit, pass, authority or consent under the Act or whether or not any person is at any time entitled to any such issue of right the burden of proof will lie on the person contending that they are so entitled. The Public Health Act, - every person while suffering from a venereal disease in any communicable form or continues in employment in or about any factory shop, hotel, restaurant, house or other place in any capacity entailing the care of children or handling of food of food utensils intended for use of consumption by any person shall be guilty of an offence unless he proves that he did not know or suspect or had no reasonable means of knowing or suspecting that he was so suffering. It is an offence for any person to employ such a person, the defence would be for the employer to prove that they did not know that the employee was sick. Stock and Produce Theft Act any person who has in his possession any stock reasonably suspected of being stolen or unlawfully obtained shall if he fails to prove to the satisfaction of the court, that he came by the stock lawfully shall be guilty of an offence and liable to conviction. Wildlife Conservation & Management Act it is an offence to be found with or to be dealing with Game Trophies and the person charged under this Act has the burden of proving lawful possession for dealing with such gain. Those are the exceptions to the general rule that he burden of proof lies on the prosecution. Section 108 E.A incidence of the burden of proof. It lies on that person who would fail if at all STANDARD OR DEGREE OF PROOF The question is what level of cogency or conviction should evidence attain before the court can act in favour of the person who bears the burden of proof. In criminal cases when the burden of proof is on the prosecution the standard of proof is beyond reasonable doubt. The question has arisen as to what is reasonable doubt? Miller v. Minister of Pensions [1947] 2 ALL ER

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In this case Lord Denning tried to explain what reasonable doubt would mean he said the degree is well settled. It need not reach certainty, but it must carry a high degree of probability. He continues proof beyond reasonable doubt does not mean proof beyond a shadow of doubt the law would fail to protect the community if it admitted fanciful probabilities or possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility, in his favour which can be dismissed with a sentence of course it is possible but not in the least probable, then the case is proved beyond reasonable doubt. Lord Denning continues it must carry a reasonable degree of probability but not as high as is required in criminal cases. If the tribunal can say we think it more probable than not, the burden is discharged but if the probabilities are equal, the burden is not discharged. Degree of cogency in burden of proof required is less than in criminal law. Other people have said that reasonable doubt is the doubt of men of good sense not of imbeciles or fools. In criminal cases where the accused bears the burden of proof, we have already stated that the standard of proof is on a balance of probability. The burden of proof in civil matters is on a balance of probabilities. Where you have cases of fraud for instance if the allegation involves criminal conduct, the degree required is going to be higher. There is a spectrum level of degrees. R.G. Patel v. Lalji Makanji [1957] E.A. 314 The court in this case stated that allegations of fraud must be strictly proved although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities. In a matrimonial offence, there is a variation in the standard of proof. If you are relying on adultery to get your divorce, the standard of proof is beyond reasonable doubt, you have to catch them flagrante delicto. In Wangari Mathai v. Andrew Mathai it was stated that if you are relying on the offence of adultery the court must prove guilt beyond reasonable doubt or so as to feel sure that the guilt had been proved. The Appellant had argued that there was no direct evidence of adultery and on Appeal it was argued that the degree of adultery had not been proved but the decision was upheld. The court relied on circumstantial evidence to find guilt. Maherdavan v. Maherdavan [1964] p233 [1962] 3 ALL ER 617 A ceremony had been celebrated between the parties in Ceylon. Two of the requirements of the local law were solemnisation of the marriage by a registrar, either in his office or in another authorised place and, during the ceremony, an address by the registrar to the parties on the nature of the union. The parties cohabited as if man and wife for a short period of time and the husband acknowledged the wife as such. Seven years after the first ceremony, the husband went through another ceremony of marriage with another woman in England and the validity of the first marriage came into question. According to the marriage certificate, the marriage had been solemnized by a registrar in his office, but the wife gave evidence that the marriage had taken place at her patents house and there was no evidence of the requisite address by the registrar of parties. Rejecting as irrational legal chauvinism an argument of counsel for the husband that there was no presumption in favour of a foreign marriage the establishment of which would invalidate a subsequent English one, Sir, Jocelyn Simon P applied the presumption and held the foreign marriage to be formally valid. In 1980, T and M were married in London, UK. In 1985, the couple returned to Kenya, whereafter a short stay, M proceeds to USA for post-graduate studies. For 7 years, T does not hear from M. In 1993, T gives up on waiting for Ms return. She (T) meets with F and out of a desperate love they get immediately married. 45

Shortly thereafter, T meets with J, an old friend just returned from the USA. J confirms to T that M is living in the US with an American lady. In 1996, T sues F for divorce. In his defence, F asserts that their marriage is a nullity because in 1993, T was still legally married to M. Unfortunately F cannot trace J to testify. T has evidence that M may have been married previously to A in 1978 and that A is still alive. Advice T and F. The presumption of marriage will arise where there has been a ceremony of marriage which has been subsequently cohabitated. If the parties had capacity to contract a marriage then the law presumes that they are validly married. Presumption of marriage can also be established through ceremony and cohabitation. The formal validity of a marriage depends upon the lex loci celebrationis i.e. the law of the place where one purports to have gotten married and failure to comply with the formal requirements of the local law may make a marriage void. Once it is admitted that a marriage was celebrated between 2 persons who intended to marry then the formal validity is presumed to exist. On advice to T, beginning with the marriage of T and M, it will be presumed that T and M were validly married in London in 1980. The presumption of marriage is a very strong presumption, rebuttable only by strong evidence that will go beyond a mere balance of probability. For instance in the decided case of Piers V. Piers the couple got married in a private dwelling house while the law required as a prerequisite for the validity of such a marriage that a special licence be obtained. The Pierses did not get that kind of licence and when the marriage turned sour, the validity of the marriage was questioned. It was held that the presumption of marriage in favour of the legality of marriage is not to be lightly repelled. The evidence against it or evidence to rebut it must be strong, distinct, satisfactory and conclusive. The presumption of marriage is not lightly repelled and requires evidence that can satisfy the court beyond reasonable doubt as was held in Mahadervan V. Mahadervan where was held that the court must be satisfied beyond reasonable doubt if a presumption of marriage is to be rebutted. Evidence of a prior marriage may suffice to rebut a presumption of marriage and therefore if T is able to prove that M may have been married previously to A in 1978, this would nullify Ts marriage to M in London. If M had been previously married to A it would mean that the marriage between T and M was a nullity and therefore F cannot assert that T had been legally married to M when they got married and F therefore has to consider giving M her divorce as it would mean that the marriage to M was void and whether M is alive or not, T was legally married to F and was thus entitled to a divorce. T has to have strong evidence of for instance a marriage certificate and corroborating evidence to prove that M had been previously married to A which would make her marriage to M void and her marriage to F legit thereby earning her a divorce from F. In Chard V. Chard (1956) 2 AER 259 parties to a marriage celebrated in 1933 sought decrees of nullity on the grounds that the husband had been through a marriage ceremony in 1909. The first wife in respect of whom there was no evidence of ill health or registration of death was last heard of in 1917 and would be aged 44 in 1933. There were reasons which might have led her not to wish to be heard of by her husband or his family in that between 1917 and 1933 the husband was continually in prison. The question was whether one could presume that she was dead and therefore hold this marriage of 1933 valid. The court held that there was no evidence of a person who would have been likely to have heard of the first wife between 1917 and 1933 and consequently the presumption of death was inapplicable in which case the nullity would not go through but they would have to bring in more evidence. In WANJIKU V. MACHARIA [1968] Wanjiku petitioned for maintenance from Macharia calling to her aid a marriage certificate. The two had gotten married in 1963, stayed together as husband and wife until the relationship turned sour. She had testified on oath that she had been married to another man in 1953 or thereabouts. The court held that they would not presume marriage because all that was required to rebut presumption of marriage by cohabitation was some evidence that leads the court to doubt the validity of marriage. In the words of the court, Wanjiku had no validity of marriage. 46

F wants his marriage to T declared a nullity on the fact that M who was validly married to T in London in 1978 is not dead since J claims to have seen him living with an American woman in America. Section 118 (a) of The Evidence Act Cap 80 Laws of Kenya states that where it is proved that a person has not been heard of for seven years by those who might be expected to have heard of him if he were alive, there shall be a rebuttable presumption that he is dead. For presumption of death to be established, the court will consider whether there are people who would be likely to have heard from the person presumed to be dead in over seven years, and whether they have actually heard from that person and whether all due inquiries have been made as appropriate in a given circumstance. The next thing that the court will want to consider is whether M is still alive and whether he has had communications with people that he ought to be in touch with namely family and relatives or can M be presumed to have died since T had not heard from him in over 7 years. The court will need prove that the people who could have heard from M have not heard or seen M in over 7 years. The court will also need evidence that T has made all efforts to reach M and that M has not been heard from in over 7 years, and that all efforts to reach M have been fruitless. Is the evidence of J that he met M in United States living with another woman credible? Can J be called to give evidence that M is alive and living in the United States with another woman? If J can be found and agree to testify, the Judge may be convinced by Js evidence not to presume that M is dead so it will depend on the trial Judge. F has to rebut the presumption that his marriage to T is valid with the argument that T was validly married to M who is not dead and who is living in the United States of America with an American woman. To be able to rebut the presumption that M is still alive, F will have to find J who is the last known person to have seen M and who can rebut the presumption that M is dead. The rebuttal must be cogent and has to be supported by evidence. The court must be satisfied beyond reasonable doubt in order for the presumption to be rebutted. Evidence that T had been married to M and that that marriage is still valid may suffice. F has an uphill task of proving that M is still alive without the evidence of J and will have to look for J to give evidence that M is alive in the United States of America and living with an American woman to rebut the presumption that M can be presumed dead. The outcome will depend on what kind of evidence T has that M could have been married to A before they met and if the evidence is cogent, the marriage between T and m will be nullified as this means that M was already married to A when he met T and the marriage in London to T is therefore invalid. In the absence of evidence from T about Ms prior marriage to A, F will have to find J to give evidence to rebut the presumption of the death of M to prove that his marriage to T was void and therefore a divorce will not be necessary. EVIDENCE II SECOND SEMESTER

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