Evidence Law

MT.
KENYA UNIVERSITY
FACULTY OF LAW
THE LAW OF EVIDENCE I - READING LIST AND COURSE OUTLINE
BOOKS AND STATUTES
All students are advised to have and continuously consult the following:(1)
The Kenya Evidence Act (Cap. 80).
(2)
Cross and Tapper on Evidence by Colin Tapper
(3)
Evidence for Magistrates Vols. 1 & 2 by P. Durand.
The following are recommended for additional reading:
(1)
(2)
(3)
(4)
Wigmore on Evidence vols. 1-X.

Evidence in East Africa by H.F. Morris.
Sarkar on Evidence
A preliminary Treaties on Evidence at the Common Law by J.B. Thayer.
The law journals should also be consulted for various learned articles pertaining to the law of
evidence.
WEEK ONE
1.
INTRODUCTION
Cross and Tapper on Evidence Pages 1 to 60
Evidence Act Cap 80 Section 1 to 4
-The place of evidence in legal philosophy;
-Law of evidence and legal reasoning.
2.
HISTORICAL
-Early modes of trial in England and the resultant evolution of law of evidence.
-Importation of English Law of evidence in colonial India.
-From India to East Africa
-The Kenya Evidence Act, 1963; Its conclusiveness.
WEEK TWO
3.
PRELIMINARY DEFINITIONS AND PRINCIPAL ITEMS OF JUDICIAL

EVIDENCE
a)
-Facts
-Facts in issue
b)
c)
d)
-Relevancy
-Admissibility
-Proof, probating forms
-Evidence, insufficient evidence prima facie evidence, conclusive evidence,
presumptions.
-Testimony
-Hearsay
-Documents
-Things
Facts .of other facts (circumstancial evidence).
-Classification of evidence
Facts which may be proved/ need not be proved by evidence.
CASES
Republic vs Hardy (1794) 24 State JR 199
Republic vs Sims (1946) 1 ALL ER 697,701
Republic vs Yaccob (1981) 72 CR APP 311
Joy vs Phillips Mills and Company Limited (1916) 1 KB 849
C.M.C Aviation Limited vs Cruisair Ltd. (No. 1)
1978 K.L.R. 103.
Salam Dean v R. 1966 ENA. 272
Amber May v. R. Cr. App. No. 24 of 1979 (unreported C.A.)
Peter Kuibita Paul v. R. Cr. App. No. 71 of 1978
(Unreported C.A)
Bartlett vs Smith 12 LJ Ex 287
R vs Reynolds (1950) KB 606
Metro Politan RY vs Jackson (1877) 3 App . cas 193
Payne vs Harrison (1961) 2 Q.B 403 and 2 ALL ER 873
Cozens vs Brutus (1973) 2 ALL ER 1297
Herniman vs Smith (1928) AC 305.
WEEK THREE
4.
RELEVANCE AND ADMISSIBILITY

Evidence for Magistrates Durand Pages 1 to 23
Wigwore on Evidence vol 1 ss 9 and 10
-Philosophy and Empiricism
-Meaning of relevance
-Meaning of Admissibility
-Res Gestae forming part of the same transaction.
CASES
and
DPP vs Kilbourne (1973) AC 729

Ellis (1926) 6B&C 145
Ratten vs R (1972) AC 378
R vs Premji Kurji (1940) 7 EACA 58
Rvs Mulji Jamnadas (1946) 13 EACA
Stanley Musinga vs R (1951) 18 EACA 211
R vs Gokaldas Kanji (1949) EACA 116
R. v. Patel /1957/ E.A. 416 (K)
Mohammed Saed Akrabi vs R (1956) 23 EACA 512
Homes v. Newman 1931 Ch. 112.
R. v Christie 1914 A.C. 545
R. v. Bedingfield (1879) 14 Cox C.C. 341.
Teper v. R. 1952 A.C. 480.
Agassiz v. London Tramway Co. Ltd., 1872 27 L.T. 492.
R. v Johnson (1847) 2 Car & Kir 354.
R. v. Brabin & Another (1947) 14 EACA 80.
R. v. Boyle & Merchant 1914 3K.B. 339.
Lobo v R. (1926) 10 K.L.R. 55.
WEEK FOUR
5.
SIMILAR FACTS EVIDENCE

-What is similar fact evidence?
-Evolution of the concept
-English and Other Jurisdictions
-S. 15 and similar fact evidence.
-The Expansionist and the Contricti------Theories
-Rationale of S. 15
CASES
Makin v. A.G. for N.S.W. /1984/ A.C. 57.
Mohamed Saeed Gkarabi v R. (1956) 23 EACA 512.
The Quuen v Harold Whipp and Anor (1955) 28 KLR 243.
John Makindi v. R. 1961 E.A. 327.
Yafesi Kayima v. R (1551) 18 EACA 288.
Brown v. Eastern & Midland Rail Co. (1989) 22 Q.B.D. 391
Noor Mohamed v R (1949 1 All E.R. 345.
R. v. Armstrong /1922/ 2 K.B. 55
R. v. Smith (1915) 11 Cr. App. Re. 220.
Achieng v Republic (1972) E.A 37.
R. v. Bond (1960) 2 K.B. 389.
R. v. Francis (1874) L.R. 2 C.C.R. 128.
R. v. Bell /1911/ A.C. 47.
R. v. Sims/ 1946/ 1 K.B. 531 /1946/ 1 All E.R. 697.
R. v Straffen/ 1952/ 2 Q.B. 911.
Thomson v. R. /1918) A.C. 221.

R. v. Fitz Patrick / 1962/ 3 All E.R. 84
R. v. Ollis (1940) 24 Cox C.C. 554.
Harris v. D.P.P /1952/ A.C. 694; /1952/ 1 All E.R. 1044
Boardman v. D.P.P /1974/ 3 All ER
R. v. Mortimer 1936 25 Cr., App. R. 15
R. v. Mansfield 1978 1 ALL E.R. 137 (C.A)
R. v Scarrot 1978 1 ALL E.R. 672 (C.A)
R. v. Barrington 1981 1 ALL E.R. 1132.
i)
ii)
ARTICLES:
Gooderson, 1956 Cambridge L.J. AND 1957 Cambridge L.J 55
Elliot, Guide to similar facts, pts I & II 1983 Crim L.R. 284 352
WEEK 5 AND WEEK 6

6.
BURDEN AND PROOF

Evidence for Magistrates Durand Pages 24 o 59
Evidence Act Cap 80 Section 107 - 119
-What is burden of proof?
-Burden of Proof v. Burden of adducing evidence (i.e. legal burden v. evidential burden).
ARTICLES
(i)
Birch, the Hunting of the Shark 1988 Crim. L.R. 221
(ii)
Denning (1945) LQR 380
CASES
Murimi v. R. /1967/ E.A.. 542 (CA).
Bhat v. B /1957/ E.A. 332 (CA).
R. v. Raotes Kenya Ltd. /1958/ E.A. 13 (K)
Remat Ahmed v. R. /1959/ E.A. 804 (T)
Wabiro Alias Musa v. R. /1960/ E.A. 184 (CA).
Comr. of Customs v. S.K. Panachand / 1961/ E.A. 303 (CA).
Besson v. Allibhoy (1906) 2 E.A.L.R. 8
Ryde v. Bushel /1967/ E.A. 517 (CA).
Amoar Mahiddin v. Sikuthani (1914) 2 U.L.R. 91.
Fazi v. Mohamed 1968/ E.A. III (T).
Hakam Bibi v. Mistry Fatch Mohammed (1955) 28 K.L.R. 91.
Kimani v. Gikanga (1965/ E.A. 735 (CA).
Uganda Native Trading Co. Ltd. V. Muwema (1958) 23 E.A.C. 62.
Woolmington v. D.E.P / 1935/ A.C. 462.
Leonard Aniseth v R. /1963/ E.A. 206 (C.A).
Saidi s/o Mwakawanga v. R. /1963/ E.A. 6(T).
CKale v. R. /1965 E.A. 555 (CA).

Reed v. R. (1952) 1 T.L.R. (375.
R. v. Josephine Muthoni w/o Ithanga (1948) 23 K.L.R. (1) 71.
Waera s/o Madova v. R. /1962/ E.A. 183 (K).
Cheminigwa v. R. (1956) 23 EACA 451.
Malangu s/o Kieti v. R. /1959/ E.A. 797 (CA).
Nyameru s/o Kinyoboya v. R. (1953) 20 E.A.C.A. 192.
R. v. Beard /1920/ A.C. 479.
Godiyana Baranga s/o Rugwire v. R. /1952/ E.A.C.A. 229.
Nyakite s/o Oyugi v. R. /1959/ E.A. 4322.
R. v. Kamau s/o Njoroge (1939) 6 E.A.C.A. 133.
R. v Kibiegor Arap Bargutwa (1939) E.A.C.A 135.
R. v. Saiji K Kabila Kiunga / 1963/ E.A. I (T).
Ottoman Bank v. Mawani /1965/ E.A. 464 (K)
Commissioner of Income Tax v. Bapoo 1958 E.A.. 223.
Vollabalas Shamsi et al v. Commissioner of Income Tax 1954 21 EACA 16.
Joseph Mbithi Maula & Anoth. V. R. Cr. Pp. No. 77 of 1979 (C.A. unreported CA.)
Wangari Mathai v Andrew S. Mathai Civil Appeal No. 21 of 1979 (C.A. unreported).
May v. OSullivan 1955 92 C.L.R. 654.
MATTERS ESTABLISHED OTHERWISE THAN BY EVIDENCE
WEEK SEVEN
7.
JUDICIAL NOTICE:
Evidence Act Cap 80 Section 59 -61
-What is Judicial Notice?
-What are the Underlying Principles?
-Its place in the Law of Evidence.
CASES
R. v Luffe (1807) 8 East 193
Re Oxford Poor Rate Case (1857) 8 E & B. 184
Burns v Edman /1970/ 2 Q.B. 541.
Mye v. Niblett /1918/ I.Q.B.23
Preston-Jones v. Preston Jones /1951/ A.C. 391.
Commr. of Customs v. S.K. Penachand /1961/ E.A. 303 (CA)
Saleh Mohamed v. R. (1953) 20 EAC 141
Ryde v. Bushel /1967/ E.A. 817 (CA)
Nazir v. R. /1962/ E.A 345 (CA) K.L.R. 91.
Brooke Bond (Kenya) Ltd. V. Chai Ltd. (1972) E.A. 10
Mohamed Taki v. R. 1961 E.A. 206
Kimani v. Gikanga 1965 E.A. 735.
Gupta v. Continental Builders Ltd. 1978 K.L.R. 83.
WEEK EIGHT
8.
PRESUMPTIONS
Sec 4,119 of Evidence Act Cap 80
-What are presumptions? Classifications of presumptions
-of law + fact
-Continuance,Guilty knowledge,Intention,-Legality and
Accuracy,Legitimacy,Marriage,Place of presumptions in the judicial process and their
impact on the law of evidence.
CASES
Re Taplin (1973) 13 ALL E.R. 105.
A.G. v. Bradlaught /1885/14 Q.B.D. 667
Kanji & Kanji v. R. 1961 v E.A. 411.
Morris v Kanaen /1946/ A.C. 459.
Gordon v. Gordon /1903/ A.C. p.141.
The Poulet Peerange Case /1903 / A.C. 395
Maturin v. A.G. /1938/ 2 ALL E.R. 214
Pazi v. Mohamed /1968/ E.A. III (T)
Piers v. Piers (1849) 2 H.L. Cas. 331.
Tweney v. Tweney /1946/ p. 180.
Zus v. Uganda /1967/ E.A 420.
Wanjiku v. Macharia (1968) E.A 216
Case v. Ruguru (1979) E.A. 55.
R vs Hepworth and Fearnley (1955) 2 QB 600
R vs Steane (1947) KB 997
Chard vs Chard ( 1956) 259
9.
FORMAL ADMISSIONS
Cross and Tapper on Evidence Pages 91
-What are admissions and what are formal admissions?
-Civil Cases
-Criminal Cases
-Format + Informal + Confessions
RELEVANT FACTS WHICH MAY NOT BE PROVED

WEEK NINE
10.
ESTOPPEL
Principles of estoppel and rationale
Nature of estoppel legal or evidential
Classification
CASES
Law v. Bouveries /1891/ 3 ch. 82.
Maritime Electric Co. Ltd. V. General Dairies Ltd. /1939/ A.C. 610.
Canada and Dominian Sugar Co. Ltd., v. Canadian National etc. 1947 A.C. 46.
Greenwood v. Martins Bank /1933/ A.C. 51.
Jordan v. Money (1854) H.L.C 185
Central London Carty Trust v. High Trees House 1947 K.B. 130.
Rajabali Hassan v. Hassanali Manji Haji 1961 E.A. 720.
Freeman v. Cooke (1848) 2 Exch. 654; 1843-60 ALL E.R. 185.
Lowe v. Lambank /1960/ 1 W.L.R. 196.
Balwant Singh vs Kipkoech arap serem (1963) EA 651
Dukhiya vs Standard Bank of SA (1959) EA 958
Suyedu Binti Abdulla bin Mohammed vs Waki Commissioners Zanzibar
(1949) 6 ZLR 227
Fatuma Binti Abdulrehman bin Mohammed El Ruwohia vs Abdulla bin
Mohammed bins Salim El Ruweni (1949) 8 zlr 244
Conventry Sheppard & Cn. V. Cr. E. Ry (1885) 11 Q.B.D. 776.
Combe v. Combe /1951/ 2 K.S. 215.
Nurdian Bandali v. Lombank (Tanganyika) Ltd. 1963 E.A. 307.
Century Automobiles v. Hutchings Biemer /1965/ E.A. 304.
Income Tax Co.. v. A.K. /1964/ E.A. 648 (K)
Chatrath v. Shah /1967/ E.A. 93 (C.A).
Baker v. Dewey (1823) I B & C 704.
Baker v. Dewey (1823) I B & C 704.
Greer v. Kettle /1958/ A.C. 156 (HL).
Carpenter v. Buller (1841) 6 M & W. 209.
Jenabai Sachga v. Shamga 1953 E.A. 227 (Z).
E.A. Power Co. v. Dandora Quarries 1967 E.A. 728.
Projapat v. Ashok Cotton Co. 1964 E.A 309, 316 (U).
Folkes & Co. v. Thakkrar /1959/ E.A. 36 (CA)
Redseth V. Shaw /1967/ E.A. 833 (K).
Ravi Bin Mohamed v. Ahmed 1957 E.A. 782.
Priestman v. Thomas (884) 9 A.D. 210.
Mills v. Cooper /1967/ 2 Q.B. 459.

Bell v. Homes 1959 ALL E.R. 449.
Wood v. Luscombe /1964/ ALL E.R. 972.
Brusden v. Hamphrey (1884) 14 Q.B.D 141.
Workington Harbour Board v. Trade Idemnity 1938ALL E.R. 101.
Guest v. Warren (1854) 9 Ex. 379.
Raddolf v. Tuck /1962/ Q.G. 175.
Marginson v. Blackbirri B.C. 1939 2 K.G. 526, 1939 ALL E.R. 273.
Thompson v. Thompson 1957 P 19; 1957 I ALL E.R. 161.
Hayward v. Hayword 1961 p. 152; 1961 I ALL E.R. 236.
United Overseas Bank v Jiwani 1977 ALL E.R. 733.
D.P.P. v. Humpreys /1977 A.C. 1
Chase International Investment Corporation and Another v. Laxman Keshra &
Others 1978 K.L.R. 143.
Njuguna Wamuthi v. Simeon Koimburi Civil Appeal No. 31 of 1976 (C.A..
unreported).
Hollington v. Hewthorn & Co. 1943 K.B. 857.
Robinson v. Oluoch 1971 E.A. 376.
Queens Cleaners Ltd. V. E.A.C & Another 1972 E.A. 229.
Meng Leeng Development Ltd. Vs. Jip Hon. Trading Co. Ltd 1985 I ALL E.R. 120.
WEEK TEN (10)
11.
PUBLIC MONEY , COMPETENCE, COMPELABILITY AND PRIVILEGE:

Evidence Act Cap 80 Section 125-139
-Meaning and Rationale of privileges.
-Question of public money.
-Classification of privilege Public and Private.
-Public Privilege Court; Official Communication
-Private Husband and wife; professional.
CASES
Duncan v. Cammell, Laird & Co. Ltd. 1942 A.C. 624.
1942 ALL E.R. 587; III L.K.K.B. 406; 166 L T 366; 50 T.L.R. 242; 86 Sol. J. 287.
Merricks v. Noth-Bower 1965 I Q.B. 57 (CA).
Re Grosvenor Hotel, London (No.2) 1965 Ch. 121 (CA).
Conway v. Rimmer 1968 A.C. 910 (H.L.)
Raichura v. Sandai 1967 E.A. 624 (CA)
Rishen Chand Mohindra v. Mathra Dass (1941) 19 K.L.R. (2) 67.
Kapnor Singh s/o Harman Singh v. R. (1951) 18 E.A.C.A 283.
Njunja v. R. (1965) E.A. 773 (K).
Dhukale v. Universal TOT Co. et at. (1974) E.A. 395.

Shah v. Rep. (1970) E.A 39
Omari s/o Hassan v. R. (1956) 23 E.A.C.A. 580.
R. v. Amkeyo (1917) 7 E.A.L.R. 14.
R. v. Robin (1929) 12 K.L.R. 134.
R. v. Mwakio Asani s/o Mwanguku (1932) 14 K.L.R. 145.
R. v. Toya s/o Mamure (1932) 14 K.L.R. 145.
R. v. Nyawa wa Nyawa (1933) 15 K.L.R. 99.
Sankey v. Whiltlam (1978) 21 A.L.R. 505.
Robinson v. State of South Australia (No. 2) 1931 A.C. 704.
Glasgow Corporation v. Central Land Board 1956 B.C. (H.C) 1
Nixon v. United States 418 U.S. 603, 41 L ed. 2d. 1039.
Mudavadi v. Seme High Election Petition No. 12 of 1978 (Unreported).
Purmah Cil Company Ltd. V. Bank of England 3 W.L.R. 722.
See Speeches of Lord Edmund Davies at p. 738 -746.
Keith at p.746-751 and Scarman at p. 752-762.
British Steel Corporation v. Grandada Television Ltd. 19.
1 ALL E.R. 417.
R. v. King 1983 1 ALL E.R. 929.
Secretary of State for Defence & Another vs. Guardian Newspapers Ltd. 1984 3
ALL E.R 601
WEEK ELEVEN
12.
PUBLIC POLICY AND ILLEGALLY OBTAINED EVIDENCE

-Meaning of illegally obtained evidence legality strictor sensu, constitutionality and
regularity.
-The common Law and American developments.
-East Africa.
-Modern Law Review Vol. 28 1965.
-Dennis, Re constructing the Law of Evidence (1989)
Current Legal Problems 21.
CASES
Jeffrey v. Black 1978 1 ALL E.P 55.
R. v. Sang 1979 2 ALL E.R. 1222.
Mohan Cai Trivedi v. R. 1959 E.A. 355.
NOTE
TWO WEEKS OF CATS (Oral and Written)

ONE WEEK FOR REVISON OF THE CAT (Last Week to Exams) JOINT CLASS
1 4 WEEKS OF STUDY
ANDREW MUMA/2012
INTRODUCTION
What is evidence? Each writer on the subject approaches the answer to this question in a
slightly different way. Generally speaking the term evidence has two different meanings;
facts, and the means of proving those facts in a court of law. OSBORN, THE CONCISE LAW
FICTIONARY (4th Edn.) gives the following definition:All the legal means, exclusive of mere argument, which tend to prove or disprove any matter
of fact, the truth of which is submitted to judicial investigation;...
You, as the judicial tribunal, must be completely conversant with the law determining (1) what
facts may be proved in court, and (2) how these facts may be proved, and you must first become
aware of the different meanings of the term evidence as you will hear it used. For example, in
the statement From the evidence, I am convinced beyond reasonable doubt that ..., the word,
evidence means facts proved in court, and the sentence could be easily read, From the facts
proved in court, I am convinced beyond reason able doubt that .... Again, in s. (2.K.E.A.: All
facts, except the contents of documents, may be proved by oral evidence. Here the words oral
evidence refer to the means by which facts may be proved, i.e by spoken evidence, and not to
the facts themselves.
It is also important to bear in mind that evidence is first tendered or offered to the
court: that is to say the parties to the suit, through their witnesses, offer certain facts to the court
in support of their case. Moreover or not these tendered facts are accepted by the court, or
admitted into evidence depends on what the facts are and the method by which they are tendered,
and it is to this procedure that the law of evidence applies, although certain laws, particularly
those relating to presumptions, also affect the question as to how these facts will be treated once
they have been admitted.
The definition of evidence which is contained in the K.E.A. is found in s.3, the
Interpretation section. This section is, in effect, your dictionary for the K.E.A., for whenever you
need to know the definition of a word in the Act which is found in s.3 that is the meaning which
you must give to the term, regardless of what you may have previously understood the term to
mean, and whether or not it may be used in a different sense in ordinary conversation or even in
another Act. The definition of evidence reads:evidence denotes the means by which an alleged matter of fact, the truth of which is
submitted to investigation, is proved or disproved; and, without prejudice to the foregoing
generally, includes statements by accused persons, admissions, and observations by the court
in its judicial capacity;.
The word evidence is often found with an adjective which describes in legal terms the
type of evidence. In as much as these terms appear frequently, not only in the K.E.A. but in the
Reports, you must memorize and understand them completely. The following list is taken from
OSBOTN, THE CONCISE LAW DICTIONARY:
1 Oral evidence: statements made by witnesses in court.
2 Documentary evidence: documents produced for inspection by the judge. (The question of
what a document is discussed elsewhere).
3 Conclusive evidence: evidence of a fact whcih the court must take as full proof of it, and
which excludes all evidence to disprove it.
4 Direct evidence: evidence of a fact actually in issue; evidence of a fact actually perceived by a
witness with his own senses. (The definition of direct evidence inasmuch as it relates to
oral evidence is found in s.63(2)K.E.A, and is discussed elsewhere).
5 Circumstantial evidence: evidence of a fact not actually in issue but legally relevant to a fact
in issue.
6 Real evidence: evidence supplied by material objects produced for the inspection of the court.
7 Extrinsic evidence: oral evidence given in connection with written documents.
8 Hearsay evidence: evidence of a fact not actually perceived by a witness with his own senses,
but proved by him to have been stated by another. (A mere complete definition is given in
connection with s.33 K.E.A.).
9 Indirect evidence : circumstantial or hearsay evidence.
10 Original evidence: evidence which has an independent probative of its own.
11 Derivative evidence: evidence which derives its force from some other source.
12 Parol evidence: oral, extrinsic evidence
13 Prima facie evidence: evidence of a fact which the court must take as proof of such fact,
unless disproved by further evidence.
14 Primary evidence: evidence which itself suggests that it is the best evidence, and which is
rejected to be produced if available.
15 Secondary evidence: evidence which itself suggests the existence of better evidence, and
which is rejected if primary evidence is avaiable.
(Note that in connection with documents and the proof of documents, primary and secondary
evidence are defined in ss.65 and 66, K.E.A.)
Facts:
As a general statement we may say, with certain exceptions which we will consider later,
that the court is concerned almost conclusively with the FACTS of the case and the means by
which these facts say be proved. The court will then, of course, apply the relevant law to the
admissible facts in order to reach a decision. Fact is defined in s.3 K.E.A. as follows: fact
includes:a any thing, state of things, or relation of things, capable of being perceived by the senses;
b any mental condition of which any person is conscious; fact in issue means any fact from
which, either by itself or in connexion with other facts, the existence, non-existence, nature or
extent of any right, liability or disability, asserted or denied in any suit or preceeding,
necessarily follows;
A thing under (a) above is a material object (a chair), or a fact (that man is 30 years old.
A state of things is the state of affairs (hali ya mambo), and a relation of things is the relation
facts bear to each other: the chair is in the room; he is my son, therefore I am his father. The
senses are the special powers of the body by which a person is conscious of things, ie sight,
hearing, smell, taste and feeling, feeling to include the definition of (b) above, the mental
condition of which a person is conscious. Thus if a man through his senses feels or is
conscious that another person is angry, happy, disturbed, etc, this is a fact. It is important to
remember, however, that this type of fact arises from the physical manifestations of that feeling
in the other person, that mental condition. If a person is angry, he shows his anger by frowning,
clenching his fists, speaking certain words, acting in a certain way, etc, and if a witness states he
was angry, he should be able to describe how the man acted, what he said; etc to support his
feeling; to support the fact.
As we will see in the section on the burden of proof, a party to a suit or proceeding must
prove the facts upon which he rests his case, i.e. he must prove the facts in issue. Each party will
assert or allege that certain things are true, that certain facts exist, claiming that the existence of
these facts means that the court should decide the case in his favour. In many cases the parties
will assert an entirely different set of facts; the prosecution claims that the defendant assaulted
Mr. X; the defendant alleges that he did not assault Mr. X. In some instances, particularly in civil
cases, both parties will assert that even though only one agreed set of facts existed, the case
should be decided in his favour e.g. in a contract case where there is an agreed set of facts and
the parties assert that the law as applied should result in a particular decision. The question
therefore arises as to when a fact is proved or disproved. The answer is found in s.3 K.E.A.
1 A fact is proved when, after considering the matters before it, the court either believes it to
exist, or considers its existence so probable that a prudent man ought, in the circumstances of
the particular case, to act upon the supposition that it exists.
2 A fact is disproved when, after considering the matters before it, the court either believes that
it does not exist, or considers its non-existence so probable that a prudent man ought, in the
circumstances of the particular case, to act upon the supposition that it does not exist.
3 A fact is not proved when it is neither proved nor disproved.
The presumption of innocence.
The basic presumption underlying the criminal law of Kenya is the presumption of
innocence, found in the Constitution of Kenya in Chapter II (Protection of Fundamental Rights
and Freedoms of the Individual), Section 21(2)(a) as follows:21. (1) ...
(2) Every person who is charged with a criminal offence a shall be presumed to be innocent until he is proved or has pleaded guilty; and in connection
therewith, subs.(7), which reads:(7) No person who is tried for a criminal offence shall be compelled to give evidence at the trial.
These provisions are reflected in the K.E.A. and in the Criminal Procedure Code (hereinafter
referred to as the C.P.C.)
Direct and circumstantial evidence
Evidence may generally be divided into direct evidence, and indirect, or circumstantial
evidence. Direct evidence, in relation to oral evidence, is defined in s.63(2) K.E.A. as follows:(2) For the purposes of subsection (1) of this section, direct evidence means a with reference to a fact which could be seen, the evidence of a witness who says he saw it;
b with reference to a fact which could be heard, the evidence of a witness who says he heard it;
c with reference to a fact which could be perceived by any other sense or in any other manner,
the evidence of a witness who says he perceived it by that sense or in that manner;
d with reference to an opinion or to the grounds on which that opinion is held, the evidence of a
person who holds that opinion or, as the case may be, who holds it on those grounds.
Note that (a), (b) and (c) deal with facts, i.e. things, states of things or relations of things which
are capable of being perceived by the senses, or mental conditions of which the witness was
conscious, as set forth in s.3 (see p.iv), while subs (d) deals with the subject of the opinions of
witnesses, based on facts which he has perceived. Opinions are admissible only under certain
special conditions, which will be covered later.
Circumstantial evidence is defined in OSBORN, T E CONCISE LAW DICTIONARY.
A series of circumstances leading to the inference of conclusion of guilt. Evidence which
although not directly establishing the existence of the facts required to be proved, is
admissible as making the facts in issue probable by reason of its connection with or relation to
them.
CROSS AND WILKINS, AN OUTLINE OF THE LAW OF EVIDENCE, p. 147 says:
An evidentiary fact is relevant to a fact in issue when, by itself, or together with other facts, it
renders the existence of the fact in issue more or less probable.
SARKAR says on pp. 32-33:All judicial evidence is either direct or circumstantial. By direct evidence is meant when the
principal fact is attested directly by witnesses, things or documents. (Note how this definition
expands on the limited definition of direct evidence in s.63(2) relating solely to oral evidence;
see p.v) To all other forms, the term circumstantial evidence is applied, which may be defined
that modification of indirect evidence, whether by witnesses, things or documents, which the law
deems sufficiently proximate to a principal fact or facum .......... to be receivable as evidentiary of
it. Circumstantial evidence is evidence of circumstances as opposed to what is called direct
evidence.
......Circumstantial evidence may be best under codified law of evidence applicable in Kenya.
Unfortunately in many areas there is an unfortunate dearth of cases interpreting or applying the
various sections, whereas in other areas, notably the sections relating to confessions, there is an
overbundance of cases. The question then arises as to the effect of reference to English or Indian
decisions on the sections. See discussion, MORRIS, pp. 10-14. The sections themselves, where
they constitute an extension of the English Law of evidence, have been strictly construed; see
dicta, R. v. Lyangia bin Luwanya and Another, (1938), 5 E.A.C.A. 122, 123.
In considering the persuasive effect of English Decisions, the Court in R. v. Brabin and
Another, (1947), 14 E.A.C.A. 80, 83 said:As regards the application of the Indian Evidence Act it has been argued rather tentatively
that it was intended to be merely a codification of the English law of evidence and that, in
interpreting it, English decisions must be followed. As true that the Indian Evidence Act is in
the main a codification of the English law of evidence and, in so far as it is so, here and there
in the Act are definite deviations from English Law and where these occur the Act must
prevail over the English case law as the Act has become part of the legislation of the Colony as
a comprehensive Evidence Code. See Wallace Johnson v The Kind (1940) A.C. 231.
This statement was quoted in Mohamed Saed Akrabi v R., (1956), 23 E.A.C.A. 512, 515, and the
Court then noted that since ss. 14-15 of the Aden Evidence Ordinance of the Englis law... and
considered a decision of the House of Lords.
For the purposes of the District Magistrate it is primarily the decisions of the Privy
council, so long as it was the ultimate court of appeal for East African countries, the Court of
Appeal for East Africa and the respective High Courts, which provide precedential case law for
authority. This text attempts only to make reference to these authorities, although relevant
English or Indian decisions may be quoted or referred to in the decisions, for it is highly unlikely
in any event that adequate reference and research material will be available.
An inculpatory statement in a plea of not guilty is not evidence.
It should be noted that when a defendant is called upon to plead, and in the course of
pleading makes an inculpatory statement i.e. one which incriminates him in some way, but
becuase the statement is not an unequivocal admission of guilt, resulting in a plea of not guilty
being entered, his statement cannot be used as evidence against him. See, for example R v
Pirmin, (1934), 2 E.A.C.A. 64; R v Njoroge wa Banha and Others, (1935), 16 K.L.R. (2) 135;
Wachira s/o Wambogo v R (1954), 21 E.A.C.A. 396, and chapter on confession.
Application of the K.E.A.
Section 2 provides:2. This Act shall apply to all judicial proceedings in or before any court other than Khadis court
but not to affidavits presented to any court of officer nor to proceedings before an arbitrator.(*)
.............
The words or an African Court were deleted by Act 17 of 1967, 1st Schedule, the Magistrates
Courts Act; see Cotran, Integration of Courts and Application of Customary Law in Kenya, 4
East African Law Journal 14.
* Amended as to affidavits
Act No. 10 of 1969, see p. 168A.
Evidence as related to procedure
Evidence being defined in the Act as the means by which an alleged matter of fact is
proved or disproved (ss p.ii), it is obvious that the law of evidence is closely related to the law of
procedure, both in civil and criminal cases. Indeed, several of the sections which are now found
in the K.E.A. were originally found in the Criminal Procedure Code (Cap. 75). For example: the
present section concerning the competency of the accused and husband or wife as witnesses in
criminal cases and communications made during marriage (ss.127 and 130) were drawn from the
former s.159 C.P.C., and the former s.195 relating to the reports by government analysts and
geologists is now found, as amended, in s.77 K.E.A.. Part III of the Act is entirely precedural in
nature, dealing with the examination of witnesses, although the principles underlying the various
sections have their origins in the basic concepts of fairness. They also deal with the means by
which facts may be presented in court of law.
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.
33.
Statements, written or oral, of admissible facts made by a person who is dead, or

who cannot be found, or who has become incapable of giving evidence or whose
attendance cannot be procured, or whose attendance cannot be procured without
an amount of delay or expense which in the circumstances of the case appears to
the court unreasonable, are themselves admissible in the following cases
(a)
When the statement is made by a person as to the cause of his death, or as

to any of the circumstances of the transaction which resulted in his death,
in cases in which the cause of that persons death comes into question.
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 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 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 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 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. 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 but 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 a call for an ambulance.
Cap 80,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 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.

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
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 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 say. If you want
to bring in a statement, it would have to be associated with an act.
Section 9
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.
10.
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 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, agree and form a common intention to do
something. Common intention is the defining factor of the conspiracy.
It is relevant to prove
1. That it is a conspiracy; and
2. 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 fellow-conspirators 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.
11.
Facts not otherwise relevant are relevant

(a)
if they are inconsistent with any fact in issue or relevant fact; or
(b)
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.
Section 12
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.
13.
Where the existence of any right or custom is in question, the following facts
are relevant
(a)
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
(b)
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
RELEVANCY AND ADMISSIBILITY

Chapter II of the K.E.A. deals with questions of relevancy and admissibility, and
includes sections dealing with general rules, admissions, confessions, statements by persons
who cannot be called as witnesses, statements in documents in civil proceedings, statements
and special circumstances, judgments, opinions, character and the extent to which a
statement is admissible. We will examine the relevancy of the types of evidence listed in the
Chapter under separate headings, i.e. under what conditions these statements or other
evidence are relevant and admissible in evidence. In this Chapter, however, we will deal
only with the general rules of relevancy and admissibility.
The Distinction Between Relevancy and Admiissibility

Section 3 defines admissibility
admissible means admissible in evidence.
In plainer terms, evidence is admissible if it may be presented in court and the court will
consider the evidence in reaching its determination, court being defined in S. 3 as
including all judges and magistrates, and all persons, except arbitrators, legally
authorized to take evidence.
WIGWORE ON EVIDENCE (3rd Edn.), Vol. I, ss.9 and 10 sets forth two exioms, or
propositions that commend themself to general acceptance, concerning admissiblity.
1. Have but facts having rational probative value are admissible and,
1. All facts having rational probative value are admissible, unless some specific rule
forbids.
To have rational probative value, a fact must be so connected, directly or indirectly
with a fact in issue in an action or other proceeding that it tends to prove or disprove the
fact in issue. Any two facts so related to each other that according to the common occur of
events one either taken by itesle or in connection with other facts proves or renders
probable the past, present or future existence or non-existence of the other. OSBORN,
CONCISE LAW DICTIONARY, taken from Stephen, the draughtsman of the I.E.A., 1872.
In simple terms, then, relevancy determines whether one fact is related to another,
and a fact is relevant to a case when it is related to the facts in issue; see definition, p. (iv).
If admissible in evidence, the relevant fact will help the court to determine whether the
right or liability or disability which one party claims to exist (and the other party denies)
actually does exist, and if so, to what extent.
Sections 5 - 15 K.E.A. cover the general rules of relevancy. Throughout the rest of
the Act, the terms admissible and inadmissible are used, setting forth when and under
what circumstances relevant facts may be admitted in evidence, or when they are excluded.
Those sections which deal with instances when relevant facts may not be admitted in
evidence, or may be admitted only under certain circumstances, are, exclusionary rules.
All facts to be admissible, must be relevant, but not all relevant facts are admissible.
b.
General Restriction on the admissibility of Evidence.

In drafting the I.E.A., the principle of exclusion was followed, for only these facts
which are specifically declared to be relevant are admissible. SARKAR, p. 38, quotes from
Stephen (Digest, introd.).
The great bulk of the law of Evidence consists of negative rules declaring what, as the
expression runs, is not evidence. The doctrine that all facts in issue are relevant to the issue,
and no others may be proved, is the unexpressed principle which forms the centre of and gives
unity to all these express negative rules.
This general approach is set forth in s.5:5. Subject to the provisions of this Act and of any other law, no evidence shall be given in any
suit or proceeding except evidence of the existence or non-existence of a fact in issue, and of
any other fact declared by any provision of this Act to be relevant.
The general rule is, therefore, that no fact can be given in evidence unless it is either
a fact which is (a) evidence of the existence or non-existence of a fact in issue, or (b) one
which is declared to be relevant under ss.6 - 16. All other facts are irrelevant unless they
are declared to be relevant by some other specific section of the Act or by some other law.
Since, being irrelevant, they do not bear directly upon and facts in issue, they are not
admissible in evidence, this to save the time of the court and to keep from confusing the
issue.
The decision on admissibility of evidence rests with the occurs, (See s.144).
Questions concerning admissibility should be decided as they arise, and should not be
delayed until judgment is given. When a party to the suit or proceeding objects to a
question which has been asked, or to evidence which has been tendered, a decision on
admissiblity should be made before the question is answered or the other evidence
admitted. If objection is not taken at the time it is tendered, it is generally hold to have
been waived, although it is the duty of the Magistrate to act on questions of admissibility.
c.
What kinds of Facts are Relevant?

Section 6 - 16 K.E.A. deal with the relevancy of certain kinds of facts.
1.
Facts forming part of the same transaction.
6. Facts which, though not in issue, are so connected with a fact in issue as to form part of
the same transaction are relevant whether they occured at the same time and place or at
different times and places.
Section 6 refers to facts which form part of the res gestae, defined in OSBORN,
THE CONCISE LAW DICTIONARY as:The facts surrounding or accompanying a transaction which is the subject of legal
proceedings; or all facts so connected with a fact in issue as to introduce it, explain its nature,
or form in connection with it one continuous transaction. Evidence of words used by a person
may be admissible on the ground that they form part of the res gestae which might otherwise
be inadmissible as hearsay.
Facts falling within the res gestae fall within three groups:-
1.
Acts consituting a series, for example when the series which is the fact in issue is the
existence of a custom or usage, which by definition is a custom or usage only because it is

done by a large number of people over a long period of time, the custom or usage may be
proved by evidence of the acts done over a period. (See discussion s.51).
2.
Acts or ommissions showing a continous fact, for example if the fact in issue is
whether a person is insane, the continuous conduct of that person forms part of the res
gestae, and evidence may be given of conduct over a period of time. Other examples of
continous conduct would be abstanting oneself to avoid creditors, premises used for
prostitution (s.155 P.C.), etc.
3.
Acts which are part of one transaction, which has many illustratiers, both in civil
and criminal cases.

Statements which the witness heard may also form part of the res gestae providing
that (1) they are nearly contemporaneous, i.e. that they were made at the same time or
nearly the same time as the transaction which is the fact in insure, (2) they are explanatory,
ie that they explain the fact in issue (for example, if they explan a mental or physical
condition at the time), (3) if they are not offered as evidence of the truth of the facts
contained in the statements for then they would be hearsay as she statements were made by
persons not called as witnesses. (See discussion, s.33). For example:
A is accured of the murder of S by beating him. Whatever was said or done by A or B is one
by-standers at the beating, or so shortly before or after the beating as to form part of the
transaction; is a relevant fact.
In this example the statements made by the by-standers and heard by the witness who
repeats them in court are relevant only if the statements were uttered at the time of the
transaction (the beating) or so soon therafter as to make it relatively certain that the
speaker was still operating under the stress of the occurrence and was not reflecting upon
what he said. See R V Ratten.
A transaction is a group of facts so connected together as to be referred to by a .....
legal crime, such a crime, a contract, a wrong, or any other subject to enquiry which
may be in issue. Every fact which is part of the fact in issue even though that fact might
not itself is in issue, is relevant, even though it might be hearsay were it not a part of the
transaction.
Note that the transaction may consist of a single incident which only takes a very
short period of time, as when A returns home and, finding his wife in bed with another
man, loses his temper and strikes him with a stick, killing him, the transaction, from the
discovery to the death, may, take only a few seconds. Or the transaction may consist of a
large number of facts which occur at different times and different places, occupying a
much longer period of time, e.g it engages in a long correspondence and personal
negotiations with 3 concerning a contract, after which goods are shipped and a dispute
arises over interpretation of the contract as it provides for the time of payment events
which take place over perhaps a period of years.
In both instances, however, the
transaction may be referred to by a single legal term.

Note that this section and three following deal with circumstantial evidence: see pp.7
- ix.
Other examples of facts constituting the res gestae:
A is accused of waging war against the Government of Kenya by taking part in an
insurrection in which property is destroyed, toops were attacked and goals broken open.
The occurrence of these facts is relevant as forming part of the general transaction, though
A may not have been present at all of them.
A sues B for a libel contains in a letter forming part of a correspondence. Letters

between the parties relating to the subject out of which the label arose, and forming part of
the correspondence in which it is contained, are relevant facts, though they do not contain
the label itself.
The question is: whether certain goods ordered from B were delivered to A. The
goods were delivered to several intermediate persons successively. Each delivery is a
relevant fact.
Section 6 is explained and illustrated by ss.7, 8 and 9.
2.
Facts causing or caused by other facts.
7. Facts which are the occassion, cause or effect, immediate or otherwise, of relevant fact or
facts in issue, or which constitute the state of things under which they happened or which
afforded any opportunity for their occurrence or transaction are relevant.
............................................
As a general rule, a fact is issue cannot be proved by showing that facts similar to it,
but not part of the same transaction, have occurred at other times. There are, however,
exceptions; see for example discussion of ss.14-15. Therefore if the fact in issue is whether
the accused has committed a particular crime, that fact that he committed a similar crime
is irrelevant for the purposes of showing that he committed the crime in question, for an
accused is always cresumed to be innocent until he is proved or has pleaded guilty.
(Constitution, sec. 21(2)(a), see p.(v). If, however, a previous corrupt transaction is such as
to show the state of things under which the crime with which the accused is charged
occurred, evidence of the previous transaction is admissible. In R. v. Brabin and Another,
(1947), 14 E.A.C.A. Bc, on appeal from the High Court of Kenya, the charge was that the
defendants, being persons employed by the Central Commodity Distribution Board
obtained from one Hasham Kara 1000/= as an inducement for forbearing to show disfavour
to him in relation to the affairs of the Board. Evidence was admitted of a previous corrupt
transaction between the defendants and Hasham Kara whereby, fice months previous to
the transaction which was the fact in issue in this case, it was alleged that the defendants
had demaned (and Hasham Kara had paid to them), 500/= as bribes to get his sugar supply,
which had been stopped by the defendants, restored. On appeal, the defendants claimed
that evidence of the earlier, transaction which had been admitted under s.7 I.E.A., had been
admitted improperly. In its decision upholding the admission of the evidence, the Court
stated:The main fact in issue in the case was the obtaining of a bribe by the appellants jointly from
Hasham Kara. In examining that issue one of the most importantly relevant elements in the
state of things under which the bribe was given was the relationship which existed at the
time between the parties. If, for instance, the state of things were that persons charged with
demanding the bribe were at the time they demanded it total strangers to the person from
whom they demanded it, that would be a very different state of things from the position as
alleged to be here, namely that the parties demanding the bribe on such terms with Hasham
Kara that on a previous occasion only five months earlier bribes had been demanded and
successfully extracted. It seems to us that under section 7 the fact that the appellants had on a
previous and comparatively recent occasion successfully demanded and extracted bribes from
Hasham Kara was relevant as showing the state of things under which the fact in issue
happened. Evidence of that fact was therefore by section 7 admissible.
The court then quotes from R v. Boyle and Merchant, (1914), 3 K.B. 339 as follows:There is ... an essential difference between evidence tending to show generally that the
accused has a fradulent or dihonest mind, which evidence is not admissible, and evidence
tending to show that he had a fraudulent or dishonest mind in the particular transaction the
subject matters of the charge then being investigaged, which evidence is admissible. It has
been laid down that there must be a nexus or connexion between the act charged and the facts
relating to previous or subsequent transaction which it is sought to give in evidence to make
such evidence admissible.
Note that the Court here is not saying that evidence of previous crimes is admissible
in every case, but only where there is a connection between the previous crime and the
crime with which the accused is charged and for which he is being tried, and when the
previous crime shows the state of things at the time of the ommission of the present
alleged crime. Also, evidence of this state of things does not prove that the accused
committed the crime with which he is charged, but only provides evidence of the
circumstances under which the present alleged crime was committed.
R. v. Premji Kursi, (1940), 7 E.A.C.A. 58 discusses res gestae and ss.6 and 7 I.E.. in
relation to a charge of murder. Here 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 asaulted the deceaseds brother with a dagger and had uttered threats against
the deceased. On appeal the accused argued that this was evidence of the commission of a
separate offence and therefore inadmissible. The Court said:It is true that it is not permissible to lead evidence of an accused having committed an
offence of a similar nature in order to show that he is likely to have committed the particular
offence with which he is charged and if this wounding had taken place in a different part of
Zanzibar and were not connected with the murder this objection would of course be
interconnected that the wounding of the deceaseds brother Jamnadas be regarded as part of
the res gestae on the trial of the appellant for the murder of the deceased. The brother
Jamnadas when wounded was working in the shop of his brother, the deceased, whilst the
latter was in the godown of the shop nearby. After wounding Jamnadas the accused is alleged
to have and I have finished you and am going to show your brother. Immediately afterwards
the accused was seen at the godown standing over the deceased dagger in hand. As is
explained in the notes to section 6 and 7 of the Indian Evidence Act and cases there cited in
Woodroofe & Ali Amcer when two acts of an accused are so interwaven 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 by the accused. The
prosecution are entitled to put forward their whole story, otherwise it may be quite impposible
properly to appreciate the nature of and reasons for the act in respect of which the accused is
being charged. Similarly under section 7 of the Evidence Act the fact that accused had a
dagger and used it immediately before the alleged killing by him of the deceased with a dagger
must be admissible as strong evidence of opportunity. We have no doubt that this evidence
was rightly admitted.
Included in the meaning of s.7 is evidence of opportunity without which an accused
could not properly have committed the crime. On the other hand, advantage, i.e. showing
that an accused would gain something to his advantage through the commission of a crime,
is of almost no account.
Some examples illustrating s.7:1. The question is whether A is robbed B. The fact that, shortly before the robbery, B went
to a fair with money in his possession and that he showed it or mentioned the fact he had
it, to third persons, are relevant.
1. The question is whether A murdered B. Marks on the ground produced by a struggle at
or near the place where the murder was committed, are relevant facts.
1. The question is whether A poisoned B. The state of Bs health before the symtems, arise
when are claimed to be those caused by the poison, and the habits of B known to A,
which would have given an opportunity to poison B, are relevant facts.
Example (a) is an instance of facts relevant as giving occassion or opportunity, (b) of
facts constituting an effect of a transaction (as the marks would be the effect of the
struggic, and (c) of facts constituting the state of things under which an alleged fact
happened. See John Makindi v R. [1961], 332 (C.A).
3.
Facts relating to motive, preparation and conduct
a) Any fact is relevant which shows or constitutes a motive or preparation for any fact in
issue or relevant fact.
b) The conduct of any party, or of any agent of a party, to any suit or proceeding, in
reference to such suit or proceeding or in reference to any fact in issue therein or
relevant thereto, and the conduct of any person an offence against whom is the subject
of any proceeding, is relevant, if such conduct influences or is influenced by any fact in
issue or relevant fact and whether it was previous or subsequent thereto.
c) When evidence of the conduct of a person is relevant any statement made to him, or in
his presence and hearing, which affects such conduct, is relevant.
d) The word conduct in this section does not include statements unless these statements
accompany and explain acts other than statements.
....................................
A. Motive
Motive is that which makes a man be a particular act or not in a particular way; a
desire, fear reason etc which influences a persons decision or choice. A motive exists for
every voluntary act, and it is often proved by the conduct of a person. The mere existence
of a motive is not immairating, for many persons may have a motive for doing something
which only one person actually did, e.g. if an ..... unpopulated in a village were assulated,
the entire village population may have a motive for the assault, but this does not mean that
the entire population, or indeed any person in the village committed the assault.
If,
however, a villager is charged with the offence the motive for the assault would be relevant.
An adequate motive is not in all cases necessary, for serious crimes have been
committed for the most inconsequential of motives, or for motives which a reasonable man
would consider inconsequential, as where a man is robbed or killed for only a few shillings.
Motive is an inference drawn from the facts; thus if a man is shown to have been
badly in debt and without any propsect of obtaining funds from salary or loans, the
inference could be raised that he had a motive to steal.
Motives becomes an important element in the chain of presumptive proof, and
becomes more important where the case rests on purely circumstantial evidence; however,
the absence of any apparent favour for the accused to have committed a crime is always in
favour of the accused, although it should not be overlooked that there may have been a
motive which is unknown to all except the person who was influenced.
b.
Preparation
Preparation consists of planning and arranging the means or ensures necessary for
the ommission of a crime, and includes preparations to accomplish the commission, to

prevent its discovery; to aid in the criminals escape or prevent his detection, and all the
facts showing this preparation are relevant.
Examples:a) A is charged with having poisoned B. The fact that A purchased poison of the type used
to kill B before B died is relevant.
b) A is charged with committing a theft. The evidence shows that the theft was was
committed by a man with a beard and mustache. The fact that a shaved his beard and
mustache on the day following the theft is relevant.
c) A is charged with cashing a forged cheque. The fact that when .. was apprehended he
was found in possession of an airline ticket to Dar es Salaam is relevant.
No reference of guilt arises where the facts which the prosecution claims constituted
preparation are shown to have been innocent, for example:In (a) above; A proves that he purchased the poison to kill rate. The inference of guilt is
overthrown.
In (b) above, A proves that he shaved his beard and mustache on the advice of a doctor
because he had a serious skin rash. The inference of guilt is everthrown.
In (c) above, A proves that he was being sent to Dar es Salaam by his company for a
conference which was planned after the commission of the offence. The inference of guilt is
overthrown.
C.
Conduct of a party or agent of a party or victim of an offence

The conduct of a party to a suit or proceeding, or his agent, is relevant if:-
1. the conduct is in reference to the suit or proceeding, or

2. the conduct is in reference to any fact in issue in the suit or proceeding or relevant
thereto.
The conduct of the victim (the person an offence against whom is the subject of the
proceeding as used in subject of the proceeding as used in subs. (2) is relevant if:1. the conduct influences any fact in issue or relevant fact, or
2. the conduct is influenced by any fact in issue or relevant fact, regardless of whether the
conduct was previous to or subsequent to the fact in issue or relevant fact.
For example: A is accused of a crime. The fact that, either before or at the time of,
or after the alleged crime, A provided evidence which would tend to give to the facts of the
case an appearance favourable to himself, or that he destroyed or concealed evidence, or
prevented the presence or procured the absence of persons who might have been witnesses,
or asked people to give false evidence respecting the crime, are relevant.
How would you apply the forgoing on motive and conduct in the case of Mandia v
R., [1966] E.A. 315 (C.A), involving the Prevention of Corruption Act (Cap 65), s.3(2) of
Kenya? How were the actions of the accused in that case relevant on the charge of
corruptly giving a bribe to a police constable as an inducement to refrain from taking
proceedings on alleged road traffic offences?
A.
Statements affecting conduct.

When evidence of the conduct of a person is relevant under subs(2) any statement
made to him, or in his presence and hearing, which affects, such conduct is relevant, (subs.
(3). Under the provisions of subs (4), the word conduct in s.8 does not include statements
unless these statements accompany and explain acts other than the statements.
There is a general rule that statements which are made in the presence of an accused
person which he would normally have contradicted if they were unsure, and which he did
not contradict; are evidence against him. For example:C was robbed, B said in the presence of A: The police are coming to look for the
man who robbeed C. A runs away. The statement which B made is relevant since it
affected the conduct of A.
C was robbed. B says to A: I know that you are the man who robbed C. A remains
silent. The statement is relevant.
Here the legal maxim Gilence gives consenting ie where something is said to a
person which he would normally contradict if the statement was untrue and the person
does not contradict, therein. Ampliedly giving his son consent of the truth of the statement
must be taken with considerable caution. For silence to be incriminating there must be
circumstances which affected an opportunity to speak, and circumstance such as to render
it more reasonably probable that the person would speak than that he would remain silent.
It appears that silence does not extend to remaining silent after an accused as charged and
cautioned instead of putting forwarding a defence the Difast Ojur s/o Samini Ojur v. R.
(1954), 21 E.A.C.A. 352 not entirely in point, but containing authority for the proposition.
In the circumstances in the example as above i.e. where an accused either runs away,
remains silence or given false and erasive answer his conduct. Couple with the statements
made, is in the nature of an admission and therefore evidence against him.
While the word conduct in subs. (4) does not include statements unless those
statements accompany and explain acts other than the statements the significance of the act
in many cases depends wholly upon the statement which accompanied it.
Thus, the
significance of the conduct is not clear without setting forth both the act and accompanying
statements both are relevant, and may be proved together.
Example:A is seen running down the street, bleeding from a cut on his head and shouting 3
struck me with a panga. The acts of A and the accompanying statement may be proved as
a whole as both are relevant.
The conduct must be directly and immediately influenced by a fact which is
relevant, or a fact in issue, and cannot be the result of some intermediate cause, such as the
questions of another person.
One situation in which the interweaving of a statement and conduct is of great
importance is in sexual offences, where a complaint is admissible not to establish the facts
complained of, but to show consistency where the veracity of the complainant is called into
question. In Lobo v R. (1926), 10 K.L.R. 55, the accused was charged with the indecent
assault of a young child. The child (Cayan) was alleged to have made a complaint to her
mother immediately following the incident, and at the trial the mother was allowed to give
evidence of the complaint. The court said at p.57:What the jury was invited to consider is not so much what the complainant said as the
manner in which the complaint was made; the terms of the complaint are relevant only as
indicating the complainants conduct. Section 8 of the Evidence Act explains that the word
conduct in that section does not include statements; but laying a complaint is conduct,
and the terms in which that complaint are laid are indicative of the complainants state of
mind and so of the complainants conduct . But the words in which a complaint is laid are
not admissible as evidence to establish the facts complained of .......... Section 8 of the
Evidence Act limits the relevancy of conduct to that of a party or of a person an offence
against whom is the subject of any proceedings. It has been repeatedly pointed out that the
reason why evidence of conduct is admissible, is that if such conduct is consistent with the
complaints evidence it is corroboration of the accuracy of that evidence. (Emphasis
added).
(Note: the subject of evidence in cases of sexual offences is covered in detail elsewhere).
4.
Explanatory and introductory facts.
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 happend, or which show the relation of parties by whom any such fact was transacted, are
relevant in so far as they are necessary for that purpose.
............................
Under s.9, facts are relevant if they are necessary for the following purposes:1. to explain or introduce a fact in issue or relevant fact;
2. to support or rebut an inference suggested by such a fact;
3. to establish the identity of any thing or person whose identity is relevant;
4. to fix the time or place at which any fact in issue or relevant fact happened;
5. to show the relation of parties by whom any such fact was transacted.
Examples
As to (1): A, accused of theft, is seen to give the stolen property to B, who is seen to
give it to C. B, as he delivers the property to C, says A says you are to hide this. Bs
statement is relevant as explanatory of a fact which is part of the transaction.
As to (2): A says in the presence of B: The police are coming to find the person who
beat C. B leaves immediately. The fact that B had a previouse engagement is relevant to
rebut the inference raised by his conduct, i.e. that he is concerned in the crime.
As to (3): A is accused of assaulting B. B gives evidence that in defending himself he
struck his assailant on the foot with a stone. The fact that A was seen on the day of the
alleged assault walking with a limp is relevant in establishing his identity as the assailant.
As to (4): The question is on what day the defendant was seen in Kisumu. A witness
states that he remembers that this was the same day his brother arrived from Kampala on
holiday.
This fact is relevant in fixing the time and place at which the fact of the
defendants presence in Kisumu happened.

As to (5): A sues B for a libel imputing disgraceful conduct ie A 3 affirms that the
matters alleged to be libellous is true. The position and relations of the parties at the time
when the libel was published may be relevant facts, the object being to show the malice of
the libeller. It is sufficient to show that there was an argument, whereas to go into the
details of the quarrel between A and B would be remote and waste too much time.
5.
Statements and actions referring to common intention:
10. 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 as against each of the
persons believed to be so conspiring, as well as for the purpose of showing that any person
was a party to it.
6.
Definition of conspiracy
A consipiracy consists of a combination or agreement between two or more persons
to do an unlawful act, or to do a lawful act by unlawful means, and it does not matter
whether the act is completed or not.
The penal code has provisions for:a) general conspiracy - s.395
b) seditious conspiracy - s.57
c) conspiracy to commit a felony - s.393
d) conspiracy to commit a misdemeanour - s.394
e) conspiracy to defeat justice - s.117
f) conpiracy to defile - s.157
g) conspiracy to defraud - s.317
h) conspiracy to murder - s.224
In prosecuting a case of conspiracy, the prosecution must prove:1. that there was, in fact, a conspiracy and
2. that the defendant, or defendants, were parties to the conspiracy.
In a conspiracy, the conspirators (i.e. the parties to the conspiracy), have all taken
unto themselves the prosecution of a common design. Therefore, what is said or done by
any one of them to further the conspiracy is part of the res gestae and is considered to be
the act of all the conspirators. This is true whether the acts were done or the statements
were made at different times, and even though some of the conspirators did not know
others in the conspiracy, or the acts or statements took place before one defendant joined
the conspiracy or after he left it.
b.
The East African Law is broader than the English Law..
This provision (s.10) is considerably wider than the English Law since the statements and
actions need only be in reference to the common intent and need not be in execution or
furtherance of the common purpose: moreoever, under the East African and Indian Acts an
act or declaration of a co-conspirator even after the termination of the conspiracy is a
relevant fact for the purpose of showing that such person was a party to it. (citing R. v.
Gokaldas Kanji and Another, (1954), 16 E.A.C.A. 116). It is, no doubt, on account of the
departure of section 10 of the Evidence Acts from the English law that there is a reluctance
in the East African occurs to invoke this section.
MORRIS, EVIDENCE IN EAST
AFRICA, p.33.
c.
Unlawful means
Section 395 P.C. reds in part:-
Any person who conspires with another to effect any of the purposes following, that is to
say:(g) to effect any lawful purpose by any unlawful means, is guilty of a misdemeamour.
As to unlawful means: the Court in R v. Mulji Jamnadas and Others (1946), 13 EA.C...
147, 148 said:-
Archbold (31st Ed. p. 1408) defines conspiracy as an agreement of two or more persons to
do an unlawful act, or to do a lawful act by unlawful means and at page 1409 of the same
volume we find the following said:The term unlawful in the definition has been held to include civil wrongs as well as acts
punishable criminally if done by one person.
The court then quoted with approval a dictum from the case of R. v. Druitt, 10 Cox 592 as
follows:The public had an interest in the way in which a man disposed of his industry and his
capital, and if two or more persons conspired by threats, intimidation or melestation to deter
or influence him in the way in which he should employ his talents or his capital they would be
guilty of an indictable offence - that is the common law of the land.
In Mulji Jamnadas case 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 occassions 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 ARCBHOL, that a tort which is not a criminal
offence is sufficient to satisfy the provision as to unlawful means, and upheld the
convictions.
This matter was further discussed in R v. B.N. Patel, [1957] E.A. 416 (K) where the
defence put forth was that the act which the defendants were alleged to have committed
was neither a crime nor a tort; though laid under s.396 P.C. (now s.395 P.C. (The objection
was allowed in the grounds that the information before the court did not contain sufficient
particulars to apprise the accused of the fact that the unlawful purpose alleged was
contravention of s.139 of the Bankruptcy Ordinance, intent to defraud creditors).
d.
When does the section became operative?

Before the section becomes operative there must be reasonable grounds to believe
that two or more persons have conspired together to commit an offence or an actionable
wrong, and that the accused were members of the conpiracy.
Logically this cannot mean that the prosecution must prove these two things beyond
reasonable doubt, for this could come only at the conclusion of the case. The question is
one of the order of evidence. The problems are discussed in SARKAR, pp. 103-4, and the
following observations in the Queens Case, [1820, 2B & B. 284, 310] quoted therein will
assist in understanding the problem:
.... on the prosecution of a crime to be proved by conspiracy, general evidence of an existing
conspiracy may, in the first instance, be received as a preliminary step to that more particular
evidence, by which it is to be shown that the individual defendants were guilty partipaters in
such conspiracy... Speaking generally, it may be said that the evidence in conspiracy must
show two things; an agreement for the alleged purpose, and the defendants participation in it.
Either kind of evidence may be given first, for example, a general conspiracy may be proved,
and then the prosecution must proceed to show that the defendant was implicated in it; until
this is done, the general evidence is only provisionally relevant against a particular defendant.
Alternatively, it is open to the prosecution to give evidence of the acts particular individuals
with a view of proving the general conspiracy, but the acts of one defendant are not evidence
against another until it has been shown that they were done in pursuance of a common
design. As observed before, the judge has a discretion in the matter ... and will be guided by
the special circumstances of each case.
A trial judge admitting evidence under s.10 because he has reasonable grounds for
believing in the existence of a conspiracy may reject it at a later stage if that reasonable
ground for belief is displaced by other evidence.
Example:- A.B.C.D.E.F.G. and H conspire together to overthrow the Government of
Kenya. A procedures arms in Europe, B collects money in Kisumu, C persuades persons in
Nyeri to join the conspiracy, D publishes writings in Nairobi advocating the overthrew of
the Government, E transmits to F the money which B had collected in Kisumu. These facts
are all relevant to prove the existence of the conspiracy and the fact that H was involved,
but the problem the prosecution faces is how to present the evidence, for none of it is
relevant against any of the other parties to the conspiracy until there is reasonable ground
to believe that there was, in fact, a conspiracy.
In R. v. Gokaldas Kanji Karia and Another, (1949), 16 E.A.C.A. 116, a case
involving a charge of conspiring to export diamonds from Tanganyika illegally, the Court
said:Certainly there was no direct evidence of an agreement, but how rarely is conspiracy proved
by such evidence. As (counsel) portinently observed conspirators do not normally meet
together and execute a deed setting out the details of their common unlawful purpose. It is a
common place to say that an agreement to conspire may be deduced from any acts which raise
the presumption of a common plan.
On this point, see also Ongodia and Eirma v. Uganda, [1967] E.A. 137 (U) involving an
appeal from a Court Martial arising out of the 1956 insurrection in Uganda, and
considering whether a conspiracy was proved where other conspirators were a person or
persons unknown.
In Gokaldass case, therefore, the position would appear to have been that evidence
of acts was introduced into evidence which raised the presumption of conspiracy, ie gave
reasonable grounds for belief that two or more persons conspired together to commit an
offence or actionable wrong, and after this reasonable belief was established, then the
evidence of one in reference to the common intention became admissible against all the
others.
1. The last two sentences are from R. v. Hunt, 1820, 1 St. Tr. (M.S.) 171 and from the
authority of Jitendra v. R., AI937, C. 99 S.B. respectively.
c.
The acts of the conspirator extend to all conspirators.

If two or more persons conspire together, each is regarded as the agent of the other,
and just as the principle is liable for the acts of his agent in civil law, so each conspirator is
liable for the actions of his fellow-conspirators in furtherance of the common intention held
by all. See, for example, R. v. B.N. Patel, [1957] E.A. 416 (K) where four accused were
charged with conspiring together and with other persons not before the court, and
Ongodia and Erma v Uganda, [1967] E.A. 137 (U) where the accused were convicted on
charges that they had conspired together and with other persons unknown.
In Stanley Musinga and Others v. R., (1951), 18 E.A.C.A. 211, 216, the Court said:A person who joins a conspiracy is responsible in law for intention is not important so
long as it is after that time when the intention is first entertained by one of the conspirators.
See Gokaldass case, supra, p.12 of showing that such person was a party to it.
See also R. v. Awath bin Ali and Others, (1910), 3 E.A.L.R. 82.
f.
Husband and wife may not conspire together

The court of Appeal in Laila Jhina Nawji and Another v. R. (1955), 22 E.A.C.A. 524,
reached the conclusion that the expression any other person in the Penal Code with
reference to conspiracy was not applicalbe to the spouses of a marriage resident in common
law, so that spouses of a monogamous marriage resident in Tanganyika were unable to
conspire together, bit the spouse of a polygamous marriage could do so. On appeal to the
Privy Council (see:(1956), 23 E.A.C.A. 609), the decision was reversed and the convictions
quashed upon the reasoning that English Law had been incorporated into the Tanganyika
Penal Code by virtue of s.4 so that the rule that husband and wife could not conspire
together extended to all marriages valid under the law of Tanganyika, whether
monogamous or polygamous. The reasoning of the decision is based upon the legal
fiction that, for certain purposes, husband and wife are one legal person, and the Privy
Council noted that this is one of the aspects of the fiction which has not been removed or
modified by statute. Thus if husband or wife are charged with conspiring together (and
with no others) the charge must fail. It would appear, however, that if a husband and wife
conspire together and with others, each would be guilty of conspiring with the others, but
not with each other. This aspect was not discussed, and the evidence problems are obvious.
For example, H is charged with conspiring with A, B, and C, and W is also charged with
conspiring with A, B and C but not with H, owing to the above rule. H gives evidence
which extends to A, B and C. It cannot extend to W, not only because H and W are not
legally able to conspire together, but because of the rules Husband and Wife evidence,
covered later.
g.
Problems of summing-up in conspiracy cases

J.L.M. Brown v R. [1957] 371 (C.A) is a good example of the problems to be faced
by a Court in summing-up in complicated conspiracy cases, the Court noting on p.373 that
the provisions of s.10 of the Indian Evidence Act introduce a special complication,
presumably because of the aforementioned extension of the English law in that under the
Acts the statements and actions need only be in that under the Acts the statements and
actions need only be in reference to the common intent, and need not be in execution
Addendum to discussion of s.10
The Report of the Commission on the Law of Marriage and Divorce, para 219
reads:219. On the question of conspiracy, we take a rather different view (i.e. that no change be
made in ss.19 or 396(2) P.C. dealing with compulsion by husband and the defnition of
accessories after the fact). This offence is dealt with in sections 393-395 of the Penal Code,
which contain no express exception in favour of husband and wife. It has been held,
however, (citing Laila Jhina Mawji v The Queen, (1956), 23 E.A.C.A. 609; see p. 13, supra)
that section 3 of the code imports the English rule that a husband and wife cannot be guilty
of conspiring together. This was based on the fiction that husband and wife were one
person. Our recommendations generally are based on a different approach and we can see
no reason in principle why a husband and wife who conspire together to commit an offence
should be exempt from liablity, nor do we think a change in the law in this respect would do
anything to weaken the matrimonial bond.
Recommendation No. 79
We recommend that section 393 of the Penal Code be amended to provide that
notwithstanding any English rule of interpretation to the contrary, a husband and wife may
be found guilty of conspiracy
If the Recommendations of the Commission are adopted and the legislation as proposed,
i.e. the Law of Matrimony Act, 196 is enacted, s.393 P.C. will have added a subsection
which will read:(2) For the avoidance of doubt, it is hereby declared that a husband and wife may be
guilty of conspiracy together.
See second Schedule to proposed Bill.
or furtherance of the common purpose; see para 4(b), supra, p. 10. The Court after
discussing R. v. Newland and Others, [1954]. 1 03, 158, and noting that the judge here had
taken great pains to put to the jury the case for and against each of the appellants, said:The true position, we think, must be that it is a matter for the discretion of the trial judge,
and his exercise of that discretion will not be interferred with by an appellate court except for
one or more of the usual well-recognised reasons.
6.
Facts inconsistent with or affecting probability.
11. Facts not otherwise relevant are relevant a) if they are inconsistent with any fact in issue or relevant fact; or
b) if by themselves or in connexion with other facts they make the existence or nonexistence of any fact in issue or relevant fact highly probable or improbable.
Under s.11 any fact which either disproves or tends to disprove any relevant fact or
fact in issue is itself relevant. Admissibility depends upon the proximity of the fact sought
to be proved and the fact in issue or relevant fact upon which it bears, for to take the
section in its widest possible terms and admit every possible fact having even the slightest
bearing on the relevant fact or fact in issue would be hopelessly to confuse the case by
introducing innumerable collateral facts; i.e facts which have no connection with the main
fact except by way of disproving any material facts proved or asserted by the opposing
party.
Examples:a) The question is whether A committed a crime in Nairobi on a certain day. The fact that
on the day in question A was in Kisumu is relevant. The fact that, near the time when
the crime was committed, A was at a distance from the place it was committed which
would render it highly improbable, though not impossible, that he committed it, is
relevant.
b) The question is whether A committed a crime. The circumstances are such that the
crime must have been committed by A, B, C or D. Every fact which shows that the
crime could have been committed by no one else, and that it was not committed by B, C,
or D is relevant.
If these collateral facts are to be admissible, there are two requirements:the collateral fact must itself be established by reasonably conclusive evidence, and
the collateral fact must, when established, afford a reasonable presumption or inference as
to the matter in dispute.
An example which illustrates (a) above is the situation where an accused puts forth
an alibi, a defence where the accused alleges that at the time of the offence charged he was
somewhere ielse, so could not have committed the crime. An alibi is relevant in that it is
entirely inconsistent with the allegation that the accused committed the crime, because
either he was not present or it was highly probable that he could have traveled to the scene
of the crime, committed the crime, and returned within the space of time available.
As to (b) above, suppose A, B, C and D were locked in a prison cell with E, who is
murdered. No one else could have entered the cell. B and C were chained too far from E to
have touched him, and D was paralyzed. This evidence is all admissible since it makes it
highly probable that A committed the murder.
7.
Facts affecting the quantum of damages
12. In suits in which damages are claimed, any fact which will enable the court to determine
the amount of damages which out to be awarded is relevant.
...............................
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
number of reported cases involving the awarding of damages procludes reference to but a
few for examples as to the various types of facts which courts have considered in reaching
an assessment:Raja v Kataria [1965] E.A. 362 (U) - discussing the method of assessing damages in a fatal
accident. See also Kampala Adrated Water Co. Ltd. v Gulbanu Rajabali Kassam, [1961]
E.A. 291 (C.A) [1958]E.A. 268 C.A.).
MIbui v Dyer, [1967] E.A. 171 (U) - wounding in course of arrest by private person on
suspcion of felony. Psychological factors of malingering and compensationits taken into
account, as well as aggravation of damages by element of injury to reputation.
Muwanga v Jiwani [1964] 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.
Motor Mart & Exchange (Finance) Ltd. v Ghandi, [1963] E.A. 657 (K) - hire purchase;
hiring terminated by owner; vehicle not returned to owner; assessment of damages.
The subject of damages and other remedies in civil cases will be further covered
under the subjects of torts and contracts. Other cases on the subject may be located by
searching the Indexes of the Reports under the subject-heading of Damages.
8.
Facts affecting the existence of right or custom.
13. Where the existence of any right or custom is in question, the following facts are
relevant:a) 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;
b) particular instances in which the right or custom was claimed, recognised or exercised,
or in which its exercise was disputed.
The subject of customs, rights, customary law, etc. is covered in detail later, and for
purposes of the question of relevancy, it will suffice here to note from RANTLAL the
principle underlying the section:The cases this section is intended to meet are those in which the right or custom in question
is regarded as capable of surviving repeated instances of its assertion and denial, where the
transactions may be supposed to have gone on modifying, asserting, denying, creating,
recognising, or being inconsistent with its existence, leaving it, after all that has been given in
evidence, fair matter for judicial consideration, as to whether the Court should not decree it.
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?
Section 14 and 15 deal with similar facts evidence.

Section 14 and 15.
14.
(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.
15.
(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.
1.
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?
2.
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
1. Firstly there is the policy of consideration of fairness to the accused person.
2. Secondly similar facts evidence is evidence that can bring about a lot of prejudice to the
accused person.
3. 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
1. Evidence of similar fact is relevant;
2. The offence can be proved without the similar evidence;
3. 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 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:
1. 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.
2. 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
15. 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.
After Makin the question arose as to whether the prosecution 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 instances when similar facts evidence could be raised.
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.
1.
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;
2.
Similar facts evidence to prove the identity of the perpetrator or doer of an act;
3.
Similar facts evidence to establish the commission of the act itself and therefore
rule out an act of nature or miracle.
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.
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 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 1 st accused, certified payments as due to the
2nd accused firm for the excavation of hard rock which the 1 st 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 2 nd 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 z had done. It was not an
accident. The n ature 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.
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 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.
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. 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.
What is similar fact evidence and when is it admissible? Section 15 and 16 wise sayings of
judges and case law.
SIMILAR FACT EVIDENCE

9.
Facts showing state of mind or feeling.
14.
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 sub-section (1) of this section as showing the
existence of a state of mind must show that the state of mind exists, not generally, but
reference to the particular matter in question.
3. Whereupon, the trial of a person accused of an offence, the previous commission by the
accused of an offence is relevant within the meaning of sub-section (1) of this section, the
previous conviction of such person is also relevant.
15. When there is 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
occurences, in each of which the person doing the act was concerned, is relevant.
a.
The general principles: Makins case

The basic principle underlying s.15 were set forth in Makins case, [1894] A.C. 57, as
reiterated by Sir Kenneth OConnor, P in John Makindi v. R., [1961] E.A. 327 (C.A.):
The principles which govern the admissiblity of evidence of similar offences are well known.
The leading authority is Makin v Attorney-General for New South Wales ........ where Lord
Herschell at p. 65 enunciated two propositions. The first is:It is undoubtly not compotent 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 or character to have committed the offence for which he is boing tried.
This principle is a deeply rooted and jealousy guarded principle of the law of evidence as
conceived in England.
... The Lord Chancellor in Makins case went on to enunciate a second proposition:On the other hand, the more 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.
This section, slightly revised, was published as Evidence - Admission of Evidence of Similar
Offences in Criminal Cases - Makins Case as applied in East Africa, 4 East African Law
Journel 36, by the author.
the crime charged in the indictment were designed or accidental, or to rebut a defence which
would otherwise be upon to the accused.
b.
Incorporation of the general principles in the Evidence Act.

It is important to keep clearly in mind that the second proposition laid down in
Makins case is incorporated in s.15 of the Evidence Act, for this has not been clearly stated
in any of the cases involved and can cause confusion. Section 15 is not an exception to the
rules set forth in s.14, but it rather an application of the general rule and must be read
subject to s.14 in so far as evidence of state of mind, e.g. knowledge and intention, is
concerned. SARKAR, p. 167.
SARKAR on p. 167 sets forth the general principle and the scope of its application
as follows:Evidence of similar facts is admitted to prove knowledge of the fact under consideration, or a
partys intention with respect thereto.
Such evidence is received not because a person
committing one offence is likely to commit another offence of a similar nature, but to show the
intention or knowledge of the person accused of the offence and rebut the defence of accident,
mistake or innocent intent, etc.
Similar facts under this section should be distinguished from these admissible under
s.6 as part of the same transaction.
In the determination of relevancy under s.15 two things should be considered:1. Before s.15 may be applied there must be a question whether an act was intentional or
accidental, or was done with a particular knowledge or intention. Evidence of similar
facts need not be admitted unless the defence of accident, mistake or innocent intent,
etc., is raised in substance, or if the intention is manifest. Such evidence is admissible
whenever it is necessary to rebut (even by anticipation) a defence of accident or mistake

or other innocent conditions of mind.
By the phrase rebut a defence it is not meant
that a specific line of defence should be set up before evidence of similar acts may be
tendered to overthrow it. So, the prosecution may adduce evidence of criminal acts
other than those charged without waiting for the accused to set up a specific defence
calling for rebuttal, and evidence of similar acts, e.g. to show intention or to rebut a
possible defence of accident may be admitted. But though such evidence is strictly
admissible, the judge has a discretion to exclude it, if it merely tends to deepen suspicion
against the accused and its prejudicial effect is out of preportion to its probative
value .....
1. The other important thing to remember is that s.15 does not apply unless it is sought to
be proved that the act forms part of a series of similar occurences. The section is of no
assistance unless it is established that the act forms a part of a series of similar
occurences.
Therefore, before evidence of the commission of a previous offence committed by
the accused is admissible in evidence under the provisions of s.15, there must be either:1. a question raised as to whether the act with which the accused is charged was intentional
or accidental, or done with a particular knowledge or intention (indicating that this
defence will be presented), or
1. a defence such as honest intention, honest mistake or accident which is open to the
accused.
c.
How may the question in (1) above arise?

In most instances it would appear that the question is first raised prior to the trial,
for example in statements made to the police during investigation of the offence, although
the matter may also be raised during the course of the trial, either through cross
examination of the prosecution witnesses or during the course of the defence case. An
example of the former instance is Mohamed Saeed Akrabi v R., (1956), 23 E.A.C. 512, in
which a Headmaster in a school was charged on two accounts of the use of criminal force to
outrage modesty in his actions concerning two students. There was no corroboration of
their evidence. The prosectuion called three other boys from the same Form in the school
as the complainants, who gave evidence that the defendant had on previous occassions done
exactly the same to them as he was alleged to have done to the complainants.
The
magistrate admitted the evidence under ss.14 and 15 to show criminal intent. On appeal
the Court said:... although the appellants defence at the trial was a complete denial of the acts alleged
against him, certain statements made by him when first confronted with the boys indicated
that he might set up a defence of accident or mistake. Galcel and Lufti first complained to
their Form master Ali Baquir, and they were followed by the other three boys who gave
evidence of similar incidents. Ali Baquir then informed the appellant who said that the boys
were liars. But later in the day when the boys were separately called before the apellant in the
presence of Ali Baquir, the appellant did not categorically deny the allegations but used such
expressions as what you have in your mind is only suspicion, You have got the wrong
impression, and You have made a problem out of nonsense.
From the use of such
expression it was reasonable to conclude that the appellant might be setting a defence of
accident or mistake; for instance that, while admitting he took the boys hand and that they
came into contact with his penis, such contact was accidental and without criminal intent.
That was not crediting the appellant with a fancy defence but with one which there was
reasonable cause to believe might be raised, and the evidence of the other offences was
admissible raised, and the evidence of the other offences was admissible to rebut that defence
and to show that the acts were committed with criminal intent. (from p. 516).
An example of a defence of honest intention or mistake open to the accused - (2)
above - again raised in statements made prior to the commencement of the trial is R. V.
Harold Whipp and Chaudhary Mohammed Sharrif, (1955), 288 K.L.R. 243, in which the
case for the prosecution was that in pursuance of an agreement between the two accused,
the first accused certified payments as due to the second accuseds firm for the excavation
of hard rock, which he knew to be greatly in excess of the amount which had really been
excavated, and thereby procured excessive payments to be made by the City Council to the
contractors. The prosecution alleged that this was done fraudulently and not as a result of
honest mistake in estimation by accused No. 1 in discussing the admissibility of other
transactions not charged, the Court said:So far as can be gathered from his statements to the police, the defence of the first accused
may be that he had an innocent intention and made mistakes because (1) the estimation of
rock was difficult in that it had often to be done after the trench was back-filled, perhaps with
the rock on top of the filling, there was no efficient supervision and the quantities were
necessarily a very rough estimate; accordingly while he may have been negligent he was not
fraudulent; and (2) that lenient estimation of rock was made by him to compensate the
contractors for unduly low rates.
I think that the evidence regarding the 1955 payment certificate would be admissible to
rebut the defence fore-shadowed in (1) above - a defence of mistake and innocent intention.
After discussing a line of English cases dealing specifically with fraud, rather similar
to s.15, the Court again said:Evidence of the 1955 transactions would, I think, be admissible under this line of cases
specifically dealing with fraud but I prefer to rest my decision on the principle that the
evidence would be admissible to show intention and system and to rebut a defence open to the
accused of innocent intention and accident.
d.
Evidence of both previous and subsequent events may be relevant to prove

state of mind.
See R. v Harold Whipp and Chaudhray Mohamed where a subsequent act, ie (one
which occured in 1955, was held relevant in a criminal case where the charge concerned
acts done in 1953.
e.
When may evidence of the commission of previous offences be tendered by the

prosecution?
Once there are indications, either before or during the course of the trial, that the
accused may or will put forth one of the defence noted in b(1) or (2) above, the prosecution
may tender the evidence. The rule was summarised by Viscount Simon in Harris v D.P.P.,
[1952] A.C. 694, quoted in Mohammed Saeed Akrabi v R. (1956), 23 E.A.C.A. 512, 515, 516
as follows:The substance of the matter appears to me to be that the prosecution may adduce all proper
evidence which tends to prove the charge. I do not understand Lord Herschalls words (in
Makins case) to mean that the prosecution must withhold such evidence until after the
accused has set up a specific defence which calls for rebuttal. Where, for instance, mens rea
is an essential element in guilt, and the facts of the occurrence which is the subject of the
charge, standing by themselves, would be consistent with mere accident, there would be
nothing wrong in the prosecution seeking to establish the true situation by offering, as part of
its case in the first instance, evidence of similar action by the accused at another time which
would go to show that he intended to do what he did on the occasion charged and was thus
acting criminally. R. v. Mortimer is a good example of this. What Lord Summer meant when
he denied the right of the prosecution to credit the accused with fancy defences was that the
evidence of similar facts involving the accused ought not to be dragged in to his prejudice
withour reasonable cause.
In John Makindi v R. [1961] E.A. 327 (C.A.), there was a question as to when the
evidence tendered showing the commission of previous offences could have been admitted if
it were, in fact, admissible. The court there also cited Harris v D.P.P., above and R. V. Hall,
[1952]1 AII E.R. 702, and noted that, if admissible, the evidence could have been admitted
in anticipation of an expected defence, and empharised that:As soon as it becomes clear that the prisoners defence is that the facts alleged by the
prosecution have an innocent and not a guilty complexion, evidence may be given which
might otherwise be inadmissible, .... The principle applies when it is desired to rebut a defence
that the facts alleged by the prosecution have an innocent complexion.
f.
When is s.15 not applicable?

If there is no indication that the accused will riase a defence as noted in b(1) or (2)
above, either from statements made prior to the commencement of the trial or from crossexamination of prosecution witnesses, s.15 is not applicable and evidence of the commission
of previous offences is not admissible during the prosecution case.
X (1936), 25 C.A.R. 125.
In Yefesi Kayima v R. (1951), 18 E.A.C.A. 288, the accused was charged with
possession of one bottle of bismuth oxide contra the Uganda Penal Code. There was, in
evidence given by a prosecution witness and in cross-examination of the accused, a clear
suggestion of the commission of another offence other than that for which the accused was
being charged. On appeal, the Court, after quoting from Makins case, said:In the instant case, as we have already pointed out, the appellant was not preferring any
explanation of his possession of the article in question but was denying that he had ever had
possession of it. The introduction therefore of this prejudicial matter cannot be justified on
the ground that it was admissible to rebut a defence which had been indicated or would
otherwise be open to the appellant.
Perhaps the loading case on ss.14 and 15 is John Makindi v R., [1961] E.A. 327
(C.A) in which the defendant was charged with the severe beating of a small boy to whom
he was in loco parentis, which it was alleged caused the boys death. During the trial one
Petro testified that on the night before his death he had heard the accused cry out, and that
the next day the boy was taken to the hospital where he died. Medical evidence indicated
that the boy had, at the time of his death, both new and old bruises on his head and body
and a fractured arm which was still in plaster, and that the fresh bruises on the head
indicated that there had been a fresh blow causing a fresh haemorrhage which, acting on
top of the old haemorrhages, was the immediate cause of death. The defence was that the
boy was an epileptic, subject to fits, and that his injures had been caused by falls for which
the appellant was not responsible.
The prosecution sought to introduce evidence of evidence of previous severe
beatings of the deceased by the defendant in order to rebut a defence that the death of the
deceased was due to accident caused by epilepsy. The evidence was objected to by counsel
for the defence who said that the defendant was not going to raise a defence of accident or
mistake or absence of intention; he was going to say that the deceased had been an
epileptic, but he was not going to advance the theory as to how or why the deceased met his
death; the defendant did not know how the deceased met his death.
The sole point on appeal was whether the court was correct in admitting evidence of
previous beatings of the deceased by the appellant. In this regard, after discussing the
English authorities, the Court said:In the present case, the prosecution alleged that the death of the deceased had been caused
by beatings administered by the appellant. Had the defence at the trial been that the appellant
had beaten the deceased, but with an innocent intention, e.g. as correction by one in loco
parentis not intended to be excessive, then the second principle in Makins case would have
apllied. Here, however, the contest was not whether the appellant had beaten the deceased
with an innocent intention; but whether the beatings which, according to the prosecution,
caused the death of the boy ever took place at all. The appellant at the trial denied that he
beat the child on 2nd September, and said that his injuries were due to a fall and his frequent
illness.
In such circumstances the second princple enunciated in Makins case was
inapplicable, and the question whether the evidence of previous beatings was admissible or
not fell to be decided under the ordinary rules set out in the Indian Evidence Act.
Without a clear indication in the decision that the second proposition in Makins
case was incorporated in s.15, the last sentence quoted can lead to confusion, and, with
respect, the sentence might better have read, in the circumstances the second principle
enunciated in Makins case as incorporated in s.15 of the Evidence Act was inapplicable,
and the question whether the evidence of previous beatings was admissible or not fell to be
decided under the rules set out in other sections of the Indian Evidence Act.
g.
After a ruling that s.15 is not applicable, the Court may lack to other sections of
the Evidence Act to determine admissiblity.
Makindis case is an excellent example of determining admissibility of evidence
under sections other than the one originally advanced by Counsel.
Here the court
determined that evidence of the previous beating was, in fact, admissible under the
provisions of ss.5, 8 and 14 I.E.A., though not admissible under s.15.
h.
Section 14 applied alone.

Mosts cases reported involve both ss.14 and 15 where the evidence shows the
intention of the accused (s.14) and is also used to rebut a defence of accident or mistake
(s.15). R v Douglas Alan Godfrey, (1947), 22 K.L.R. 44, however, deals only with s.14, but
the decision unfortunately does not clearly indicate that both subs (1) and (3) are involved.
Here the accused was charged with careless or dangerous driving under the Traffic
Ordinance, and evidence was adduced that he had consumed a certain amount of alcohol
during a certain period. Defence Counsel argued (presumably under subs. (3) that, where
in a traffic offence case there is no allegation of drunkenness or impairment of efficiency
due to drink, any evidence which is directed to show the amount of alcohol consumed
before the commission of the offence alleged or the condition of the accused at the time, is
inadmissible and he cited Makins case. The Court said:We think this is placing the matter too high. Evidence that a man has consumed a certain
maount of alcoholo during a certain period is not evidence that he has committed some other
crime with which he is not charged, but is evidence tending to show this probable mental and
physical condition as a subsequent time when such considerations may be highly relevant on
the issue as to whether a person has exercised due and proper care. In such a case we think
that section 14 of the Indian Evidence Act clearly applies and that such evidence is
admissible.
In effect, the Court said that this evidence did not show commission of a previous
offence under subs.(3), but only fell under subs.(1) as showing the existence of any state of
body or bodily feeling, but was therefore still relevant since this state was in issue and
relevant.
I.
Guidelines for determining admissibility of evidence of commission of previous

offences or convictions under ss. 14 and 15
Owing to the extremely wide range of ccumstances under which the evidence might
be tendered, it is difficult to set forth a standard procedure, however reference to the

following guideliness may assist:The prosecution tenders, by testimony or otherwise, evidence of the commission of a
previous offence o conviction.
There is objection by opposing counsel, or the Court requires of the prosecution the
grounds on which it feels the evidence is admissible.
If the prosecution indicates that the accused has, or is expected to raise a defence of honest
intention, mistake or accident and that the commission of the previous offence referred to
formed part of a series, in each of which the person doing the act was concerned, the
evidence is provisionally admissible under s.15:
A. if the accused has pleaded not guilty, there should be evidence on the case record, e.g.
evidence of earlier statements by the accused which indicate that the defence in (3) has
already been raised by the accused, or the prosecution should indicate that this evidence
will be forthcoming at a later stage.
B. If at the conclusion of the case no such evidence has been presented and the accused has
not relied upon the defence, the evidence, personally admitted, is excluded from
consideration.
4. If the accused has pleaded not guilty and there are no grounds for belief that he will
raise the defence, the evidence will not be admitted unless the accuseds actual defence is
that the facts alleged by the prosecution have an innocent and not a guilty complexion, in
which case the evidence is admissible at that time in rebuttal.
5. The evidence, if admitted under s.15, the Court should then determine whether the
evidence is admissible under some other sections of the Act; e.g. ss.5, 8 or 14.
7. If the evidence is admitted under s.14, the commission of the previous offence or
conviction is admissible only to show the existence of a state of mind such as intention, etc
or to show the existence of a state of body or bodily feeling when the existence of such state
is in issue or relevant.
8. It is good practice for arguments for and against the admission of the evidence and the
Courts ruling and reasons therefore to appear on the case record.
9. The following rule of practice as set forth in Makindus case as p.333) should be noted:It is right to add, however, that in all such cases the judge ought to consider whether the
evidence which it is proposed to adduce is sufficiently substantial, having regard to the
purpose to which it is professedly directed, to make it desirable in the interests of justice that it
should be admitted. If, so far as that purpose is concerned, it can in the circumstances of the
case have only trifling weight, the judge will be right to exclude it. To say this is not to
confuse weight with admissibility. To say this is not to confuse weight with admissiblity. The
distinction is plain, but cases must occur in which it would be unjust to admit evidence of a
character gravely prejudicial to the accused even though there may be some tenuous ground
for holding it technically admissible. The decision must then be left to the discretion and the
sence of fairness of the judge.
Facts showing course of business
16. When there is a question whether a particular act was done, the existence of any course
of business, according to which it would naturally have been done, is relevant.
SARKAR on p. 175 says:... In well-established offices or firms, books are kept or business is conducted on such settled
lines and principles that when the doing of a particular act comes in question, it may be
reaspnably inferred that the unifomity of the general course was followed in the particular
case. When the course of business usually followed is proved the probability is that there was
no departure from the common course of business in the particular transaction. In the case
of public offices like the post office, where work is carried on with almost mechanical
regularity, the probability becomes stronger that the letter was despatched in due course or
reached destination.
Examples:a) The question is, whethere a particular letter was despatched. The facts that it was the
ordinary course of business for all letters to be put in a certain place to be carried to the
post, and that that particular letter was put in that place, are relevant.
b) The question is, whether a particular letter reached A. The facts that it was posted in
due course, and was not returned through the Dead-Letter Office, are relevant.
Section 16 covers the question of the relevancy of facts showing the course of
business, but the question of course of business is also covered under the subject of
presumptions, and in s.33(b), statements by persons who cannot be called as witnesses,
made in the course of business, and discussion of cases is deferred until consideration of
those subjects.
BURDEN OF PROOF
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
1.
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.
2.
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
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 misdirection. 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 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
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.
1. 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,
2. 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.
3. 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
4. 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.
1. 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
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
1.
A statute can place a burden of proof on an accused person and it can do this either
explicitly or implicitly.
2.
A statute may be construed as imposing the burden of proof on an accused person but
such a construction depends on the particular legislation.
3.
The statute however cannot be taken to impose the duty on an accused to prove his
innocence in a criminal case.
4.
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

2. 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 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.
1. 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.
2. 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.
3. The Immigration Act, which is to the effect that in any proceedings under the
Immigration Act if the question in issue is
(i)
whether a person is or is not a citizen of Kenya, or
(ii)
whether or not a person is a diplomat or wife of child of such or
(iii)
whether or not any person has been issued or granted a passport,

certificate, entry permit, pass, authority or consent under the Act or
(iv)
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.
4. 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.
5. 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.
6. 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
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.
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
cannot
trace
to
testify.
has
evidence
that
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.
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.
THE BURDEN OF PROOF

The term burden of proof comes from the Latin phrase Onus probandi, hence in
practice the terms burden of proof and onus are used interchangeably.
1.
The meaning of burden of proof

The burden of proof has only one primary meaning. It is a metaphorical phrase
indicating an obligation to prove a fact or facts. This obligation necessarily involves the
adduction of evidence in an attempt to prove a fact, subject to occasional cases when a fact
can be established without evidence. Thus the primary meaing of the burden of proof is an
obligation to adduce evidence of a fact. ....
In whatever may the phrase may be defined, the obligation is not enforced by any
direct sanction. The penalty for failure to fulfil the duty, or to discharge the burden, is the
risk of failure in the whole or a part of the litigation.
NOKES, AN INTRODUCTION TO EVIDENCE (4th Edn.), pp. 456-6.
Another meaning of burden of proof is the burden of adducing evidence, or the
burden of going forward with the evidence. This distinction may be seen from Art 5 of
CROSS AND WILKINS, AN OUTLINE OF THE LAW OF EVIDENCE, p. 26:1. The burden of proof must be distinguished from the burden of adducing evidence.
2. The incidence of the burden of proof (i.e. the question which party bears it) is dependent
on the substantive law. At the trial of a civil action, it is borne by the plaintiff on the
facts pleaded by him and not admitted by the defendant. At a criminal trial, it is borne
by the prosecution on every issue except that of insanity and issues on which the burden
of proof is cast on the accused by statute.
3. The burden of adducing evidence is generally borne by the party bearing the burden of
proof, but, in criminal cases, the accused bears the burden of adducing evidence in
support of many of the defences that would be open to him on the strength of his plea of
not guilty.
WILSONS MANUAL OF EVIDENCE (8th Edn.), p. 184 notes the distinction as follows:The expression burden of proof has two meanings which are distinct, but frequently
confused. One meaning is the obligation in a party to convince the tribunal of fact (whether
by preponderance of evidence or beyond reasonable doubt) of the truth of some preposition of
fact which is in issue and which is vital to his case. This obligation may be called the burden
of proof on the pleadings. The penalty for failure to discharge this burden is the certainity of
failure in the whole or some part of the litigation. The other meaning is the obligation to
adduce sufficient evidence on a particular is under the obligation, which may be termed the
burden of adducing evidence, or the evidential burden. Failure to discharge the
evendential burden carries the risk, but not the certainity, of failure in the whole or some part
of the litigation. Success in discharging the obligation shifts the evidential burden onto the
opposing party.
It will readily be appreciated that it is of crucial importance to determine upon which
party rests the burden of proof, in either sense in which that expression is used; and in a case
where there is little or no evidence of the facts in issue, the determination of this question may
well be decisive of the result of the proceedings.
The law of the burden of proof in Kenya is set forth in ss.115 K.E.A. Included in
the subject is the question of submissions, that situation in which certain facts are
presumed
to be true until the contrary is proven, or which are presumed conclusively to be true.
b.
Prima facie case
The term prima facie is from the Latin meaning of first appearance 9OSBORN),
or at first sight which come into usage in the late Niddle English period (OXFORD
ENGLISH DICTIONARY).
A prima facie case is
based on prima facie evidence.
OSBORN gives a general definition of prima facie case as:A case in which there is some evidence in support of a charge or allegation made in it, and
which will stand unless it is displaced. In a case which is being heard in court, the party
starting, that is, upon whom the burden of proof rests, must make out a prima facie, or else
the other party will be able to submit that there is no case to answer, and the case will have to
be dismissed.
SARKAR on p. 29 says:Prima facie evidence is evidence which, if accepted, appears to be sufficient to establish a
fact unless rebutted by acceptable evidence to the contrary. It is not conclusive.
In a criminal case the legal onus is always on the prosecution to prove its case
beyond reasonable doubt. (For one statement only, see Ramanial T. Bhatt v R., [1957]
E.A. 332, 334 (C.A). A case proved beyond reasonable doubt should not be confused with
a prima facie, or a case to answer as provided for in s.211 CP.C.
Section 210 C.P.C. as amended by Act No. 13 of 1967 reads:210. If at the close of the evidence in support of the charge, and after hearing such
summing up, submission or argument as the prosecutor, the accused person or his advocate
may wish to put forward, it appears to the court that a case is not made out against the
accused person sufficiently to require him to make a defence, the court shall dismiss the
case and shall forthwith acquit him.
The case to answer which must be made out against the accused before s.211
C.P.C. becomes operative and the accused is required to make a defence must be a prima
facie case. See Murimi v R., [1967] E.A. 542, 546 (C.A) where the court, discussing the
equivalent provisions of the Tanganyika C.P.C.
The provisions of s.205 are mandatory and if at the close of the prosecutions case a prima
facie has not been made out the accused person is entitled to be acquitted.
c.
When is a prima case established?

The leading decision on this question is Ramnlal T. Bhatt v R., [1957] E.A. 332
(C.A). There the appellant, a sub-inspector of police, had been charged on two counts of
official corruption. At the trial the magistrate considered that a fragment of evidence,
namely Have you got Shs.1,000/=? was not sufficient to justify his calling on the defence
on thecount of soliciting and though evidence on the second count was strong he though it
did not constitute proof of the charge as laid. He therefore discharged the appellant on
both counts. The Attorney General appealed to the High Court by way of case stated and
obtained an order remitting the case to the same magistrate with a direction to put the
appellant on his defence in respect of both counts and to hear and determine the case
according to law. At the resumed trial the appellant was convicted. The Court of Appeal,
discussing and disagreeing in part with passages from the judgment of WILSON, J in R v.
Jagjivan K. Patel and Others, (1948), I.T.L.R 85, said:Remembering that the legal onues is always on the prosecution to prove its case
beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the
close of the prosecution, the case is merely one which full consideration might possible be
thought sufficient to sustain a conviction. This is perilously near suggesting that the court
would not be prepared to convict if no defence is made, but rather hopes the defence will
fill the gaps in the prosecution case.
Nor can we agree that the question whether there is a case to answer depends only
on whether there is some evidence, irrespective of its credibility or weight, sufficient toput
the accused on his defence. A mere sointilla of evidence can never be enought: nor can any
amount of worthless discredited evidence. It is true, as WILSON, J said, that the court is
not required at that stage to decide finally whether the evidence is worthy of credit, or
whether if believed it is weighty enough to prove the case conclusively: that final
determination can only properly be made when the case for the defence has been heard. It
may not be easy to define what is meant by a prima facie case but at least it must mean
one on which a reasonable tribunal, properly directing its mind to the law and the evidence
could convict if no explanation is offered by the defence (emphasis added).
Bhatts case has been quoted and applied in R v. Rootes (Kenya) Ltd. [1958] E.A. 13(K);
Remat Nanji Ahmed v. R., [1959] E.A. 804 (p); Wibiro alias Musa v. R [1960] E.A. 184
(C.A.) where the Court at p. 187 clearly stated It is abundantly clear that a prima facie
case does not mean a case proved beyond reasonable doubt, and Murimi v. R [1967] E.A.
542 (C.A.) which also considered the situation where a prima facie case has not been made
cut at the close of the prosecution case and the court either calls witnesses in order to
establish the case against the accused or calls for the defence, which then calls evidence
establishing the built of the accused. See pp. 545-6.
BROWN CRIMINAL PROCEDURE IN UGANDA AND KENYA, p.93 summarises
the position as follows:The magistrate does not of courtse have to decide whether the accused is guilty at this stage.
He applied his mind in the same way as in a preliminary inquiry. All that he needs to do is
decide whether a case is made out sufficiently to require the accused to make his defence. It
may be a strong case or it may be a weak case. In cases of doubt as to the weight of the
prosecution case, the magistrate is justified in calling upon the accused to make his defence.
But there must be a prima facie case. That is to say if there is sufficient evidence upon which
the court convict if no explanation is offered by the defence, the magistrate calls upon the
accused to make his defence.
d.
Burden of proof in the K.E.A. - general sections.
107. (1) whoever desires any court to give judgment as to any legal right or liability
dependent on the existence of facts which he asserts must prove that those facts exist.
(2) when a person is bound to prove the existence of any fact it is said that the burden of
proof lies on that person.
.........................
It has been noted earlier that the penalty for failure to discharge the obligation to
prove facts may result in a failure in the whole or part of the litigation. A good example is
the case of Damadar Jamnadas v Noor Valji, [1967] E.A. 615 (C.A.), wherein Moneylender
made a loan to borrower, which was granted in writing by Guarantor. Borrower failed to
repay the loan, and Moneylender sued Guarantor to force him to make good on the
security. Section 11 of the Moneylenders Ordinance (Cap 307) provided that no security
given by a borrower is enforceable unless a note or memorandum in writing of the contract
is made, signed personally by the borrower, and a copy of the contract is made, signed
personally by the borrower, and a copy of the contract is delivered or sent to the borrower
within 7 days of making the contract. Hard Moneylender failed to produce the required
note or memorandum in court and the case was decided in favour of Guarantor.
On appeal Moneylender argued that since the defence that the required note or
memorandum had not been produced had been raised by Guarantor, he (Guarantor) had
the onus of proving that Moneylender had failed to comply with the provisions of s.11 and
the onus was not upon him to prove affirmatively that he had, in fact, complied. On appeal
it was held that under s.11 the production of the note of memorandum in court was a
condition precedent to the enforcement of the contract of security, ie a condition which mut
be met before enforcement. Since in this case secondary evidence was not admissible,
Moneylender could not give oral evidence concerning the making of the note or
memorandum. Thus since s.11 required that Moneylender produce the note in court, the
last sentence of s.101 I.E.A. (S.107 k.E.A..) and ss. 102 and 103 (ss. 108 and 109 K.E.A..)
clearly placed the burden of proof on Moneylender to prove that the note had been signed
and delivered to Borrower, and did not prove this burden on Guarantor. Since the amount
involved was 36,500/= it can be seen that the decision on the question of on whom the
burden of proof lay was one of consideratble importance.
Incident of the burden of proof.
108. The burden of proof in a suit or proceeding lies on that person who would fail if no
evidence at all were given on either side.
...................................
Section 108 sets forth the test for determining on whom the burden of proof lies in a
particular case. In a criminal case, as noted, the burden lies upon the prosecution to prove
its case beyond reasonable doubt. In a civil case, generally the burden of proof lies on the
plaintiff, for if no evidence were given for either side, obviously the plaintiff would have no
grounds for legal relief.
Examples:A. A sues B for possession of an automobile, presently in the possession of B. A alleges that
the automobile belongs to him and is only on loan to B. If no evidence is given on either
side, the case would be decided in favour of B and the automobile would remain in his
possession, hence A has the burden of proof.
B. A sues B for money due on a note. B admits that he signed the note, but asserts that it
was obtained by fraud in as much as he is illiterate and could not read the note, a fact
which he claimes was in the knowledge of A. If no evidence were given on either side, A
would succeed, in as much as B has admitted that he signed the note, and the alleged
fraud has not been proved by evidence.
SARKAR at pp. 873 - 4 notes that the sense of the term burben of proof as used in s.108
is the duty of adducing evidence:
It lies at first on that party who would be unsuccessful if no evidence at all were given on
either side. This being the test, this burden of proof cannot remain constant but must shift
as soon as he produces evidence which prima facie gives rise to a presumption in his favour.
It may be given shift back on him if the rebutting evidence produced by his opponent
prependerates. This being the position, the question as to onus of proof is only a rule for
deciding on whom the obligation rests of going further, if he wishes to win. (Jones, s.176).
As the proceedings go on, the burden of proof may be shifted from the party on whom it
rested at first by his proving facts which raise a presumption in his favour (Steph. Art.
95)...
It is not always easy to determine at what particular point the onus shifts from the
plaintiff to the defendant and then back again from the defendant to the plaintiff and then
once again from the latter to the former and so on; the more so in contested proceedings as
evidence gradually continues to be adduced, but at the conclusion of the trial when the
issues come to be judged it has to be seen, whether the initial onus which s.101 casts on the
plaintiff have been discharged or not. It would wholly wrong to allow the burden of proof
to be shifted by a redundant averment in the pleading or by an incautions acceptance of an
issue framed upon that averment. The court ought to consider whether the burden lies in
law. The evidence required to shift the burden need not necessarily be direct evidence i.e.
oral or documentary evidence or admissions of opposite party; it may comprise
circumstantial evidence or presumptions of law or fact. The amount of evidence required
to shift the burden of proof depends on the circumstances of each case.
... The true test of onus in the case of shifting has been put thus by LORD HANSWORM,
N.R.:It appears to me that there can only be sufficient evidence to shift the onus from one side to
the other if the evidence is sufficient prima facie to establish the case of the party on whom
the onus lies. It is not merely a question of weighing feathers on the one side and of saying
that if there were two feathers on one side and one on the other that would be sufficient to
shift the onus. What is meant is, that in the first instance the party on whom the onus lies mut
prove his case sufficiently to justify a judgment in his favour if there is no other evidence.
Stoney v. Eastbourne R. D. Council, 1927, 1 Ch. 367, 397.
It can be seen from the above that much will depend upon the pleading in a
particular case, not only in determining who will have the burden under s.108, but as to
who must first present evidence. For example, in Nanlal Vrajdas v Chunilal Dhanji Mehta,
promisory note which the defendant admitted he had made and signed in favour of the
plaintiff, but which he alleged was given for an illegal consideration. Having admitted the
note, the defendant was called on to begin, and the onus of proving what is alleged was
placed on him.
Another case illustrative of shifting is Fakhruddin Mohammed Ali Affarji v.
Ahmedali Abdulhussein Lukmanji, (1946), 13 E.A.C.A. in which involved a claim of money
under a mortgage deed which contained 3 recital containing acknowledgment of
consideration by the mortgager. The mortgager pleaded that the mortgage deed was a
fictitious document and that he had never received money. The mortgagor gave evidence in
support of his contention but the mortgager did not, and the suit was dismissed. On appeal
it was said that the onus was on the mortgager to establish that the remital in the mortgage
deed was incorrect, and that having succeeded in doing so, the onus shifted back to the
mortgagee to have the existence of consideration, which he had failed to do.
See alsoMulji Jetha Ltd. v. Commissioner of Income Tax, [1966] E.A. 159, 262 (K) where
the Court used the following language:It can be argued to the contrary, that while the overall burden of proof is on the appellant,
once it has produced what on its face is a valid and regular declaration of trust and the
presumptive or provisional burden of proof
chifts to the respondent to show that the
declaration is inaeffective. This the respondent has failed to do and so the appellant should
succeed.
Proof of a particular fact
109. The burden of proof as to any particular fact lies on the person who wishes the court
to believe in its existence, unless it is provided by any law that the proof of that fact shall lie
on any particular person.
.............................
This section is an amplification of the general rule in s.107 but deals with the
burden of proving particular facts. Thus if the prosecution wishes to prove a case by the
isolated fact of an admission made by an accused, or if it wishes to prove that as a fact in
addition to independent oral testimony, it must prove it. Similarly, an accused relying on
an alibi must prove it, or if lawful excuse is relied upon, as incases involving possession of
stolen property when the accused alleges that he innocently purchased the goods from a
market or a particular person, the burden of proving such is upon him.
Example:A prosecute B for theft, and wishes the court to believe that B admitted the theft to C. A
must prove the admission. B wishes the court to believe that, at the time in question, he
was elsewhere, he must prove it.
Proof of admissibility
110. The burden of proving any fact necessary to be proved in order to enable any person
to give evidence of any other fact is on the person who wishes to give such evidence.
...............................
SARKAR on p.877 notes that This is a roundabout way of saying that no one shall
be entitled to give evidence of any fact without first showing that he is legally entitled to do
so. Thus if there are conditions precedent to the admissible of certain kinds of evidence,
as in the case of s.33 K.E.A. statements by persons who cannot be called as witnesses, the
requirements for admission of the evidence must be proved before the evidence is
admissible.
The section should, however, he read in connection with s.144 K.E.A., especially
subs.(4) which governs the procedure to be used:(4) If the admissibility of one alleged fact depends upon another alleged fact being first
proved, the court may, in its discretion, either permit evidence of the first fact to be given
the second fact is proved, or require evidence to be given of the second fact before evidence
is given of the first fact.
Thus while the order of introduction of fact A and fact B is in the discretion of the
magistrate, whether fact B will be admitted in evidence still depends upon fact A being
admitted, and the person wishing to introduce fact B has the burden of proving fact A.
In Commissioner of Customs v S.K. Panachand, [1961] E.A. 303 (ed.), the company
imported some blankets, allegedly from West Germany, to import licence was required for
goods from West Germany, although a licence was required for goods from other countries.
The Customs seized the blankets acting on information that they, in fact, had come from
East Germany. The Company, seeking to return of the blankets, in order to support its
case produced two documents, an invoice, and a document signed by a Mr. Blok in which it
was stated that the invoice, on which appeared the words Country of Origin - Wes
Germany was correct. The Company claimed that these documents satisfied the burden
placed upon it by the Customs Act, i.e to prove the country of origin of the blankets.
The decision involved s.32(b) I.E.A (s.33(b) K.E.A), covering cases where the
attendance of a witness cannot be procured without unreasonable delay and expense,
subs(b) dealing with statements or documents made in the ordinary course of business.
The main issue was whether the invoice and document signed by Mr. Blok were admissible
is evidence to prove country of origin.
The Court held basically that the any person who will give evidence of any other
fact in this case, as set forth ins.110 I.E.A was Mr. Blok, who, by means of his signed
document would give evidence of the other fact, i.e. that the blankets came from West
Germany. Before Mr. Blok could give evidence through the media of the documents,
s.110 placed the burden upon the Company proving:a) that Mr. Bloks attendance at the trial could not be procured without unreasonable delay
or expense,
b) that Mr. Blocks signed document was used in the course of business, and
c) that the document was actually signed by Mr. Blok, the person whose attendance it was
unreasonable to procure.
Since the Company had failed to meet its burden of proving these conditions precedent to
the admission of the documents they were held not admissible in evidence and the Court
ordered condemnation of the blankets.
e. Cases illustrating the application of rules on the burden of proof
The following cases are illustrative of the application of the rules regarding the
burden of proof. Those cases involving legislation should be treated with caution owing to
the possibility of repeal or amendment of the sections noted.
Act of God
L. Besson v Esaji Allibhoy, (1906), 2 E.A.L.R. 8.
Where the loss of ship is
apparently due to an Act of God the onus of proof of negligence is on the person so
contending.
Ryde v Bushell, [1967] E.A 817 (C.A.). Breach of covenant to plant coffee. It is for
the person setting up the plear of act of God to prove the various facts which constitute an
Act of God@. (p.820)
Appeal
Shaw v R. [1963] E.A. 400 (U). On appeal against a conviction on ground of
misdirection as to the facts, the onus is on the appellant to show that the findings are
unreasonable and cannot be supported having regard to the evidence.
Bankruptcy
Patel v Uganda, [1966] E.A. 311 (C.A). Appellant was charged with failing to keep
proper books of account within a period of three years prior to the date of the presentation
of a bankruptcy petition contrary to s.140(1) of the Bankruptcy Act (Cap.71) of Uganda. It
was conceded that during the material period proper books had not been kept and the sole
question which arose for consideration was whether the ommission to keep proper books
came within the proviso of s.140(1) which provides that such omission shall not be an
offence if it is hones and excusable. Held, the onus was on the sccused to show on the
balance of probabilities that the failure to keep proper books was excusable.
Bills of Exchange
Fakhri Stores Ltd vs London Confirmers Ltd., [1965] E.A 159 (e.d).
Bills of
Exchange Act (Cap.27) of Kenya, s.64(1). Held that the onus is on a plaintiff suing on bills
of exchange which have patently been altered in a material respect to prove that the
defendant was privy to the alteration.
Raishi Mezhji Dhanani v Amratlal Hirchand Ltd., (1953), 26 K.L.R. 18.

Endorsement in blank on a bill of exchange stroked out. Necessity of specifically pleading
defence of lack of endorement. Bills of Exchange Ord. (Cap. 291) of Kenya. Burden of
proof on defence to establish that the endorsement had been cancelled before negotiation
made the plaintiff firm.
Bulk Sales
Ramsanali v Madhanji & Bros. and Another, (1952), 7 U.L.R. 37. The onus of
proving a sale was not in contravention of the Bulk Sales Ordinance lies on the purchaser.
The onus of proving that the person seeking to set aside a sale under the Ordinance was a
creditor prior to the sale lies on that person.
Common Calamity
Admin-General v Khalifan bin ElBattashy, [1963] E.A. 230, 231 (z). When two
individuals perish in a common calamity and the question arises as to who died first, in the
absence of evidence on the point, there is no presumption that the younger survived the
elder. Such a question is always from first to last a pure question of fact of the onus
probandi lying on the party who asserts the affirmative.
Consideration
Santa Singh v M. Thakar Singh, (1934), 1 E.A.C.A. 137. Where holder of a note
with interest at 3% signed a document to the effect that he would charge the borrower
interest at only 11/2, the onus of proving want of consideration for the document was on the
holder of the note.
Fakhruddin Mohamedali Jafferji v Ahmedali Abdulhussein Lukmanji, (1945), 13
E.A.C.A 77.
Claim on money under a mortgage deed.
Recital in deed containing
acknowledgement of consideration. Held, that the onus was on the mortgagor to establish
that the recital was incorrect and that having succeeded in doing so, the onus shifted back
to the mortgagee to prove the existence of consideration.
Contract
Re Shariff Fazal Essa, (1909), 1 Z.L.R. 268. Wagering contract. S.30 Zanz. Contract
Decree, corresponding to s.30 Indian Contract Act. Semble, the onus of proof does not rest
on the person alleging that the contract is a wager.
Walji Jetha Kanji v Elias Freed, [1959] E.A. 1071 (C.A).
Appellants sued
respondents for money due under a building contract, and for additional work.
Respondents defence was that building work was not completed to his satisfaction, and
counterclaim for loss of rent due to delay in completion and defective work. Held, the onus
was on the appellants to establish the amount to which they were entitled under the
contract and this they had failed to do, and that appellants also had the onus to show that
they were not responsible for defect in concrete work on the canopies.
Customary and personal law
In re: Hassanhali Jadayji (1941), 1 T.L.R. (R) 729. Where one contends that there is
a special custom recognized and adopted by the deceaseds co-religionists governing
succession, the onus of proof is on the person so contending.
Omar Mohidin v Sikuthani, (1914), 2 U.L.R. 91. Appellant sought declaration that
he was legally married to the respondent by Mohammedan rites. Held, that the onus of
proof of such marriage was upon the appellant.
Pazi v Mohamed, [1968] E.A 111, 113(T).
There being evidence of ontinual
cohabitation as husband and wife sufficient to raise the presumption of marriage in Islamic
Law, the onus was on the respondent to produce evidence to show that there was, in fact, no
marriage between the persons.
Hakam Bibi v Mistry Fateh Mahommed, (1955), 28 K.L.R.. 91. The onus of proving
personal law in a matrimonial cause is on the person seeking to satisfy the court that the
personal law should be applied.
Kimani v Gikanga, [1965] E.A. 735 (C.A). The onus of establishing customary law
is on the party relying on it.
Nyamgunda v Kihwili, [1967] E.A. 212 (T). Paternity; customary law in Tanganyika
Primary Courts prevails over I.E.A and English cases, with the burden of proving
innocence upon the defendant once the girl has named him as father of the child.
Mtoro bin Mwamba v Attorney-General, (1953), 20 .E.A.C.A. 108. Where it is
alleged that a particular tribe has a different law and custom from the permissive
occupational right generally recognized by tribes in East Africa, recognized on individual
right of ownership equivalent to frecheld tenure as know to English Law, the onus of proof
is upon the person who so alleges.
Damages
Said bin Sultan bin Mchamed el Subhi v Jokha binti Sultan bin Salum el Miskiria,
(1955), 22 E.A.C.A. 273. Except where the quantum of damages is conceded and the only
issue is that of liability, the question of the amount of damages is always in issue, and is a
matter for proof by the plaintiff.
Defence raised
Choitram v H.G Dadlani, [1958] E.A. 641 (C.A.). Action for account. Defence that
vouchers destroyed by plaintiffs agent. Held, the burden of proving that the respondent
was liable to account lay on the appellants, and they had discharged that burden; the onus
then rested on the respondent to show, if he could, that he was released from his liability by
certin actions of the appellants.
Detinue
Amritlal Hansraj Sheth v Nathwani, [1960] E.A. 447 (C.A.). Held, that the trial
judge was justified in rejecting evidence of both parties and therefore was right in holding
that the case fell to be determine on the basis of the burden of proof. In cases of detinue,
where the ownership of the plaintiff is admitted and possession has lawfully be acquired by
the defendant, and where the dispute is upon the immediate right to possession, the burden
of proving an immediate right to possession lies on the plaintiff.
Divorce
Mallinson v Mallinson, [1961] E.A. 185 (C.A.). Desertion; husband employed away
from matrimonial home; wife refused to join husband. Hold, that the burden of proof,
which is heavier than in an ordinary civil actopm, lay on the husband, and the evidence
here fell short of establishing an animus deserendi on the part of the wife. See also:
Campbell MoNeili v Ruth MoNeill, (1952), 19. E.A.C.A. 89; Stjernholm v Stjernholm,
(1955), 28 K.L.R 183. For burden of proof on allegation of impotence, see A v B., (1932): 14
K.L.R 109. (Note: the above cases are illustrative only and are in no way intended to be a
complete collection of situations concerning matrimonial causes).
Document
The Uganda Native Trading Co. Ltd vs Aguste Muwemba, (1956), 23 E.A.C.A. 62.
The onus of proving the effectiveness and validity of a document is upon the party relying
on it.
Mocsaji Tayabali v Suleman bin Nassor bin Khelef, (1942), 9 E.A.C.A 29. Held, that
evidence to vary the plaint meaning of a deed of sale formally drawn by a lawyer should be
clear and unequivocal. Where a document on its face and in its terms if clearly and
admittedly a deed
of sale and not a mortgage and where it had been held that the
surrounding circumstances do not vary the plain language of the document, a heavy onus
rests upon a person to override the plaint and accepted meaning of the document and the
oral evidence must be strong and certain to be of any use.
Domicil
Santhumayor v Santhumayor, [1959] E.A. 204 (U). Abandonment of domicil of
origin, acquiring fresh domicil. Held, the burden of proving a change from the domicil of
origin to a domicil of choice is not light, and taking all the factors into consideration the
petitioner had failed to prove that he had acquired a Uganda domicil with that perfect
clearness which English cases prescribe as necessary before a court can accept that the
domicil of origin has been lost. See also on comicil: Taylor v Taylor and Ueberueck, (1941),
1 T.L.R. (R) 737, on appeal, (1944), 11E.A.C.A 46; Zimbler v Zimbler, (1948), 15 E.A.C.A
10 (As in the case of divorce, cases noted are illustrative only and are not intended to
comprise a complete selection).
It should be further noted that the Report of the Commission on the Law of
Marriage and Divorce contains a Appendix VI a draft Bill to declare and amend the law
relating to domicil in Kenya, and domicil as it affects the right to invoke the jurisdiction of
courts in matrimonial causes (divorce, separation, declaratory decrees, maintenance,
custody and children and other matrimonial relief) is found in s.87 of the draft Bill for the
Law of Matrimony Act, proposed by the Commission, Appendix VIII of the Report.
Elections
Mbowe v Eliufoo, [1967] E.A 240(T). Under the National Assembly (Elections) Act,
1964, s.99 (T), the burden of proof lay on an unsuccessful candidate in an election seeking
an order that the election was null and void.
Forgery
Nadhan Singh v Pritam Singh, (1954), 21 E.A.C.A. 82. In a suit on a promissory
note the respondent as administrator of a deceased person, denied that a signature on the
note was that of the deceased.
At the beginning of the trial the counsel for the
plaintiff/appellant submitted that as the only defence was one of forgery, the defendant
should begin.
Held, whilst in a suit on a promissory note thater is a prima facie
presumption that it was executed by the person whose signature appears thereon, when its
execution by that person is specifically denied, the onus lies on the person suing on the note
to prove its due execution.
Fraud
R.G. Patel v Lalji Makanji, [1957] E.A 314 (C.A.). Civil case, allegations of fraud.
From p. 317: 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 is required.
The Uganda Native Trading Company Ltd. v. Aguste Muwemba, (1956),
23
E.A.C.A. 62. Civil case, agreement for sale of land, foregery. Held, whilst fraud must be
pleaded with particularity and proved with precision and a more balance of probability
cannot lead to a finding of fraud, these propositions were inapplicable to the instant case.
Garnishment
Petro Sonko and Another v H.A.D.B. Patel and Another, (1953), 20 E.A.C.A 99. The
onus is upon a judgement creditor seeking to garnishee a sum of money to prove that it is
due and recoverable.
Insurance
Kanti Ltd v British Traders (I.) Ltd., [1965] E.A. 108 (C.A). Claim for damage to
insured articles under an all risks insurance clause. The onus is on the plaintiff to prove
casualty, and the manner in which such onus can be discharged. Held here that as damage
from an inherent vice was damage from an excepted risk, it the respondent company could
have shown that the damage was directly caused by inadequate packing it would have been
entitled to judgement; this was precisely what the respondent company sought to do before
the trial magistrate, but on the balance of probabilities was rejected.
Shah v South Brit. Ins. Co. Ltd., [1965] E.A 679 (C.A.).
Insurance aganist
housebreaking. Held, an assured need only prove that loss was caused by some event
covered by the policy, but if his case is that the loss was caused by a breaking in or a
breaking out then his evidence must prove it, which the appellants here had failed to do.
The South British Insurance Co. Ltd. v. Mohamed G. Dharsi and Another, (1055),
22 E.A.C.A. 98. Held, the onuse of proving a vessel is a total loss (either an actual or
constructive total loss), is upon the person so alleging, and in the instant case the breaking
up of the vessel, i.e. its total loss, was not due to the perils of the sea.
Landlord and Tenant
Mohamed Abdulla Jhetam v Hassan Mian Jhetam and Others, (1952), 25 K.L.R.
114.
Landlord appealed against decision of Central Rent Control Board making a
conditional eviction order on grounds ..... that the tenant was out of occupation and had not
proved his intention to return, and was therefore not entitled to the protection of the
Ordinance. Held, that where a tenant was out of occupation for a sufficient time the
burden shifted upon him to rebut the presumption of cesser of possession.
Kamrudin Esmail Rajwani v Govindji Kalidas Degamwala, (1950), 17 E.A.C.A 37.
Agreement not identifiying the portion of a shop let to respondent, the appellant
permitted the respondent to share a shop with him without any regard for a dividing line.
Plaint for ejectment. Held that the onus of proof that there was a letting of a particular
portion was clearly upon the respondent, and there being no letting proved, there was no
protection from the relevant Ordinance.
Alimohamed Damji v Punja Hirji Gudka (1953), 20 E.A.C.A 78. Held, that the onus
is upon the non occupying statutory tenant to prove an animus revertendi by some outward
and visible signs of an inward intention to return.
Malicious prosecution/Libel
Bhanji Virji v Akbar Ali Jamal Gangji, (1936), 17 K.L.R. (1) 36. The onus of
showing an absence of reasonable and probable cause for instituting the proceedings is
upon the plaintiff. (As to libel, goe Swami Das Puri and Another v The Kenya Farmers
Association (Co-operative) Ltd. and Another, (1947), 22 K.L.R (2) 1, which held that the
onus is upon the plaintiffs to discharge the burden of establishing alleged innuendos, i.e.
that the words here imputed incompetence, gross carelessness, fraud and dishonesty on the
part of the plaintiffs.
Master and Servant
Eriya Bosa v High Commission c/c E.A. Railways and Harbours, (1950), 17
E.A.C.A. 42. Suit for wrongful dismissal; defence of misconduct. Where the plaintiff
proves that he was dismissed without notice, the onus lies on the defendants to prove
misconduct.
R. v. Simeon Murage Gitwasi, (1942), 20 K.L.R. (1) 89.
Onus of proof of
irretrievably lost in Employment of Servants Ordinance, 1937 (K), s.59(c)(iii) dealing

with herdsman being liable to fine when cattle irretrievably lost through his default.
Mariamu Nakalema v Stanistawa Michalistanos and Another, (1956), 23 E.A.C.A
172. Held that as the facts proved that at the time of the accident the second respondent
was driving the tractor which he was employed to drive, a prima facie case had been
established that he was acting in the scope of his employment, and if he was not, then the
burden of proving this had shifted to the first respondent.
Partition
G.V Patel v D.M. Patel, (1939), 6 E.A.C.A 48. Sale in lieu of partitian. Held that a
party interested to the extent of one moiety is entitled as of right to a sale in lieu of partition
unless there is some good reason to the contrary shown; the burden of showing such reason
is on the party opposing the sale.
Public user
Abbas Bros v Fazal Mohamed Champsi, (1951), 18 E.A.C.A 36. The plaintiffs
claimed an injunction to restrain respondent from entering their shamba and using a track
or private road running across it. The defendant admitted user but alleged the track was
common or public. At the trial the judge held that since the plaintiffs had pleaded the road
was private, the onus lay upon them to prove it. Held, on allowing appeal and ordering
retrial, it was incumbent upon the defendant to prove he had a right to use the plaintiffs
land and if he could not do so was a trespassor.
Dar-es-Salaam v Twentache, [1967] E.A. 224 (T). The City Council prepared a
scheme for an unnamed street and frontagers objected when called upon to contribute to
the cost of making the road. In the lower court the Magistrate held that the street in
question was a public one and not subject to the provisions of the Private Street Works
Ordinance (Cap.347) (T). On appeal, held that the onus of proving that the street in
question was a public street lay on the objectors and was not discharged.
Rent
Alimohamed Damji v Punja Hirji Gudka, 20 E.A.C.A. 78.
Increase of Rent
(Restriction) Ordinance, 1949 (K). The onus is upon a non-occupying statutory tenant to
prove an animus revertendi; (see Landlord and Tenant section, supra).
Res ispa loquitur
Ksuri Khuuidiin v Nazzer bin Seif El Kassaby and Another, [1960] E.A. 201 (C.A.).
Appellant sued respondents for damages in respect of personal injuries suffered when a
motor bus in which he was riding which was owned by the first and driven by the second
respondent overturned when both offside rear tyres burst. Held, that the respondents
could avoid liability by showing either that there was no negligence on their part which
contributed to the accident, or that there was a probable cause of the accident which did
not connote negligence on their part, or that the accident was due to circumstances not
within their control.
Taxation
Comr. Income Tax v Bapco, [1956] E.A. 223 (C.A.). The onus of proving tax payer is
not liable to assessment as well as onus of proving excessive assessment is on the taxpayer.
Vallabhdas Shamsi Khambhaita and Others v Comr. Income Tax, (1954), 21
E.A.C.A 16. The onus is on the taxpayer to show that his original assessment to tax is
excessive so that it is for him to satisfy the High Court on any disputed fact in issue.
Title to goods
H.W. Guggenheim Ltd v K.K Rajguru and Another, (1953), 7 U.L.R. 55. The onus
of proving passage of title of goods falls on the party suing for the pride of the goods (i.e.
the seller).
Traffic Offences
Bhandari v R., [1961] E.A.. 367 (E). Defendant was convicted under s.49(b) Traffic
Ordiance, 1953, as amended, of Failing to conform to a traffic sign in that he parked his
vehicle longer than permitted. Defendant had appeared in court and pleaded not guilty
and held that there was no case to answer in that there was no evidence that he was the
driver at the time of the violation. On appeal, held that the burden of proof put down an
owner of a vehicle to show that he was not in charge of a vehicle arises only if he fails to
comply with the notification requiring him to attend court to answer the charge. If he
appears in court and pleads not guilty, it is then for the prosecution to prove that he was
the driver of the vehicle at the relevant time, and in the absence of proof he is entitled to
acquittal.
Kamau s/o Muga v R., [1963] E.A. 172 (K). Traffic Ordinance, 1953, ss 43 and 44.
Charge of causing death by dangerous driving. Evidence of a mechanical defect in the
steering mechanism. Accused under the influence of drink at the time. Held, that the fact
that a person may be under the influence of drink and may not thereby be capable of
having proper control of his vehicle is a factor by itself, and if no other factors intervene
may clearly be the cause of his driving dangerously, but if another factor intervenes, such
as a mechanical defect of which the driver has no knowledge or no reason to suspect its
presence or likelihood, then the question must inevitably arise as to whether, even if he had
not been driving under influence of drink, he could have so controlled the vehicle as to
avoid driving dangerously. In such circumstances the onus is upon the prosecution to
establish affirmatively and beyond reasonable doubt that a persons dangerous driving,
irrepsective of the defect, was due to a cause within his control and that the death of his
passenger was not caused by the defect, but was caused by the dangerous driving.
f. The burden of proof in criminal cases

An accused person is presumed to be innocent until he is proved or had pleaded
guilty; Constitution, Sec.77 (2)(a), p.(v), and the establishment of a prima facie case by the
prosecution does not necessarily mean more than that there is a case to answer, see
discussion, pp. 25-26.
Section 111 K.E.A. places a burden of proof of facts or circumstances on the accused
in certain instances which will be examined below, and sets forth the burden of proof which
is placed upon the prosecution and defence in these cases. The burden on the prosecution
under s.111 is to prove beyond reasonable doubt:(a)
that a crime has been committed,

........ to establish..... any acts, omissions or intentions which are legally
necessary to constitute the offence with which the person accused is charge
....... (s.11(2)(a))
and,
(b)
that the accused is the person or one of the persons who committed the
offence
If an accused is charged with the burden of proof under s.111, he need only
raise a reasonable doubt to be acquitted.

....... the person accused shall be entitled to be acquitted of the offence with
which he is charged if the court is satisfied that the evidence given by either
the prosecution or the defence creats a reasonable doubt as to the guilt of
the accused person in respect of that offence. Second proviso, s. 111(1).
Section 105 of the I.E.A as applied in East Africa prior to
1936 reads:-
105. When a person is accused of any offence, the burden of proving the
existence of circumstances bringing the case within any of the General Expectations in
the ..... Penal code, or within any special exception or proviso contained in any other part of
the same Code, or in any law defining the offence is upon him, and the Court shall presume
the absence of such circumstances.
This was apparently a statement of the English law as it then stood; see
MORRIS, p.137. In 1935, however, the House of Lords decided the case of Woolmington v
Director of Public Prosecutions, [1935] A.C. 462, wherein it was said:....... Just as there is evidence on behalf of the prosecution so there may be
evidence on behalf of the prisoner which may cause a doubt as to his guilt.
In either case, he is entitled to the benefit of the doubt. But while the
prosecution must prove the guilt of the prisoner, there is no such burden laid
on the prisoner to prove his innocence and it is sufficient for him to raise a
doubt as to his guilt; he is not bound to satisfy the jury of his innocence.
This is the real result of the perplexing case of Rex v Abramovitch, (1914), 11
Cr. App. R. 45, which lays down the same proposition ..... Juries are always
told that, if conviction there is to be, the prosecution must prove the case
beyond reasonable doubt. This statement cannot mean that in order to be
acquitted the prisoner must `satisfy the jury. This is the law as laid down in
the Court of Criminal Appeal in Rex v Davis, 29 Times L.R. 350; 8 Cr. App.
R. 211, the headnote of which correctly states that where intent is an
ingredient of a crime there is no onus on the defendant to prove that the act
alleged was accidental. Throughtout the web of the English Criminal Law
one golden thread is always to be seen, that it is the duty of the prosecution
to prove the prisoners guilt subject to what I have already said as to the
defence of insanity and subject also to any statutory exception. If, at
the end
the
of and on the whole of the case, there is a reasonable doubt, created by

evidence given by either the prosecution or the prisoner, as to whether the
prisoner killed the deceased with a malicious intention, the prosecution has
not made out the case and the prisoner is entitled to an acquittal. No matter
what the charge of where the trial, the principle that the prosecution must
prove the guilt of the prisoner is part of the common law of England and no
attempt to whittle it down can be entertained. (emphasis added).
As a result of the decision in Woolmington v D.P.P. the I.E.A. is applied in East Africa was
amended; Kenya, Ord.30/1936; Tanganyika, Ord. 12/1936; Uganda, Ord.9/1936; Zanzibar,
Decree 17/1939.
This rule has been stated by the courts in East Africa in a variety of different
situations. For example, in Leonard Aniseth v R., [1963] E.A. 206 (C.A.), the accused was
charged with murder and the trial Judge directed the assessors that ..... the burden of
proof with regard to alibi is on the person setting up that defence to account for so much of
the time of the transaction in question as to render it impossible that he could have
committed the imputed act. The Court held this to be a misdirection, and said that in so
far as a passage in R v. Chemulon Wero Olango, (1937), 4 E.A.C.A. 46 suggests that any
burden of proof rests on the defence when the defence is an alibi, it is clear in view of the
decision in Woolmington v D.P.P and R. v. Johnson, (1961), 46 Cr. App. R. 455; 3 All E.R.
969 that such as suggestion is no longer good law and should not be followed. The Court
quoted the headnote from R. v. Johnson:Though on alibi is comonly called a defence, it is to be distinguished from a
statutory defence such as insanity or diminished responsibility and is
analogous to a defence such as self defence or provocation.
A prisoner
who puts forward an alibi as an answer to a charge does not assume any
burden of proving that answer, and it is a misdirection to refer to any burden
as resting on the prisioner in such a case.
On alibi, see also said s/o Mwakawanga v R., [1963] E.A. 6 (T), where the court reached the
same conculsion, adding that if the accused by adducing evidence of an alibi introduces into
the mind of the court a doubt that is nor unreasonable, then the court must acquit him,
applying R. v. Johnson.
The Court in Okale v. R. [1965] E.A 555 (C.A.) repeated the principles set out in
Ndege Maragwa v. R., (1965), E.A.C.A. Cr. App. 156/1964 (unreported) that the burden of
proof in criminal proceedings is on the prosecution throughout the case, and that it is the
duty of the trial judge to look at the evidence as a whole, coming from Ndeges case which
said:We think it is fundamentally wrong to evaluate the case for the prosecution
in isolation and then consider whether or not the case for the defence rebuts
or casts doubt on it. Indeed, we think that no single piece of evidence
should be wieghed except in relation to all the rest of the evidence. (These
remarks do not, of course, apply to the consideration whether or not there is
a case to answer, when the attitude of the court is necessarily and
essentially different).
In Reed v R., (1952), 1 T.L.R. (R) 375, a charge under the murder and Native
Servants Ordinance (Cap.78), of Tanganyika,11(a) in that the defendant failed to pay the
wagers of his convict without reasonable and probable cause for believing that the wasge
sware not in fact due, it was held that the onus is upon the prosecution to establish that an
accused acted in bad faith, in that this would imply a certain state of mind of mens rea
necessary before the criminal offence created by the section could be established. Where
an accused was charged with alleged illegal movement of cattle contra the Animal Diseases
Rules, 1948, the court held that the prosecution had the burden of proving that the land
onto which the cattle moved came within specified categories and that the land was a
farm within the meaning of r.2. Ndungu Kasau and Others v. R., [1958] E.A. 71 (K).
Where an accused was charged under the Liquor Ordinance, 1934, of selling intoxicating
liquor without a licence and being in unlawful possession of intoxicating liquor, it was held
in R. v Josephine Muthoni w/o Ismael Ithongo, (1948), 23 K.L.R. (1) 71 that to prove an
unlawful sale took place under s. 44 of the Ordinance, the onus is on the prosecution, and it
was necessary to adduce positive evidence either direct or circumstantial from which a sale
could reasonably be inferred.
In Waera s/o Madoya v R., [1962] E.A. 783 (K), the accused was charged and
convicted with assaulting police officers in the due execution of their duties under s.254(b) now s.253(b), P.C. On appeal the Court here held that he could not escape liability merely
on the ground that he did not know the person he assaulted or obstructed was in fact a
policeman, but if he had reasonalbe ground for his belief he was entitled to the benefit of
s.10 P.C., mistake of fact, but he then had the onus of establishing circumstances which
were capable of justifying the conclusions that he acted under such a resonable and honest
mistake. The Court said at p.786:It is sufficient if on all the material in the case, it is open to the court to find
that the mistaken belief might reasonably and honestly have existed in the
mind of the accused and the onus of establishing that that was not so in
fact, woul rest upon the prosecution and would require to be established
with certainty.
Other examples of application of the principle in various types of cases are R. v.
Manishanker v Mehta, (1946), 13 E.A.C.A. 115 is bankruptcy, where the accused was
charged with attempting to account for property by fictitious loss and it was held that the
onus of proving fictitious loss is on the prosectuion; Philip Buiga s/o Churia v. R., (1953),
256 K.L.R. 100 where the accused was charged with knowingly allowing a meeting of a
prohibited society in his house contra s.71 (a) and (b) P.C., now s.70(a) and (b). It was hled
that the burden of proof never shifted from the prosecution which, to succeed, had to prove
affirmatively that the accused knowingly allowed the meeting to take place in his home. In
Attorney General v. Ngaru s/o Kanyore, (1950), 24 K.L.R. (2) 123 the charge was under
s.333 P.C. (now s. 338 as amended), wilfully or unlawfully killing, etc,. any animal capable
of being stolen. The accused claimed he heard rustling among the maize and threw his
spear thinking it was a wild pig, when in fact it was a cow.
It was argued by the
prosecution that once the facts had established that the wilful act was done, the prosecution
had discharged the burden of proving wilful and unlawful maiming. The Court, however,
disagreed, deciding that although the act of throwing the spear was per se unlawful, the
finding that he was acting under an honest and reasonable, though mistaken belief, relieved
him of liability is that the burden of proof had not been discharged. Where it is sxpressly
forbidden to do an act, proof of the doing of that act is deemed wilful as opposed to
accidental or inadvertant, but different principles apply where the injury is one to
property.
I. The burden of pleading a specific defence
Section 111(2)(c) provides:(2) Nothing in this section shall (c) affect the burden placed upon an accused person to prove a defence of
intoxication or insanity.
............................................
1.
Intoxication
If an accused person pleads the defence of intoxication, the burden is place upon
him to prove the defence. Section 13 P.C. states that intoxication shall not constitute a
defence to any criminal charge save as provided in the section, i.e. that if at the time of the
act or omisison compained of the accused, by reason of intoxication, did not know that such
act or omission was wrong or did not know what he was doing, and the intoxication was
caused without his consent by the malicious or negligent act of another, or the accused was,
by reason of intoxication, insane, temporarily or otherwise, at the time of the act or
omission. By virture of subs.(4) intoxication shall be taken into account for the purpose of
determinign whether the accused had formed any intention, specific or otherwise, in the
absence of which he would not be guilty of the offence.
Section 111(2)(c), placing the burden on the accused to prove a defence of

intoxication applies only to s.13(2) P.C., i.e. the burden rests on the accused only where the
defence of temporary insanity through intoxication resulting in inability of the accused to
know what he was doing or not knowing that what he was doing was wrong.
The
subsection has no application to s.13(4) P.c. which provides that intoxication shall be taken
into account on the subject of intention. Therefore, while the accused has the burden of
proving a defence under s.13(2) P.C., the burden of proving intention remains on the
prosecution throughout. See Kongoro alias Athumani s/o Mrisho v. R., (1056), 23 E.A.C.A.
532, 534. The matter is clearly stated in the headnote to Cheminingwa v. R., (1956), 23
E.A.C.A. 451:Held - That intoxication may provide a defence either by enabling the
accused to prove temporary insanity or by indicating that he was
incapable
of forming the intention necessary to constitute the offence. Int he
first case
the onus is on the accused to show the insanity. Int he second, the
onus
never shifts from the prosecution. Unless the intention is established the
case fails at the outset and the Judge had erred as to the onus on this
point.
The matter has been stressed in cases of murder. In Malungu s/o Kieti v. R., [1959]
E.A. 797, 799 (C.A.) it was said:It is well established by a series of decisions of this court that the burden of
proving that an accused was capable of forming the intent necessary to
constitute the offence of murder always remains on the prosecution.
(citing
cases).
The appropriate question in all such cases is whether the accused was so intoxicated
as to be entirely incapable of forming the intent charged, that is, the intent to murder.
Nyameru s/o Kinyoboya v. R., (1953), 20 E.A.C.A. 192, 195 citing R. v Beard, [1920] A.C.
479; 14 Cr. App. R. 159, 191.
When will the burden placed on the accused under s.13(2) P.C. be discharged? In
Godiyano Barongo s/o Rugwire v R., (1952), 19 E.A.C.A 229 the appellant was convicted of
murder, and the Judge was prepared to find as a fact that his brain must have been
inflamed and poisoned by drink, but refused to believe that his intoxication was so
complete as to amount to legal insanity. The Court held that:Thd burden resting upon the accused when attempting to rebut a natural
presumption which must prevail unless the contrary is proved will never be
so heavy as that which rests upon the prosecution to prove the facts which
they have to establish and it will not be higher than the burden which rests
on a plaintiff or defendant in civil proceeidngs. It must, however, at least
establish the probability of what is sought to be proved.
Similar language was employed in Cheminingwas case, cited with approval in
Kongoros case and reiterated in Malungus case:It is of course correct that if the accused seeks to set up a defence of
insanity by reason of intoxication, the burden of establishing that defence
rests upon him in that he must at least demonstrate the probability of what
he seeks to prove.
MORRIS, p.142, relying on a passage in R. v. Justo Odima, (1941), 8 E.A.C.A. 29,
.....It would have been sufficient for the appellant to have reaised a reasonable doubt in his
favour as to his being capagle of forming the necessary intention....., equates intoxication
with the defence of provocation, and it certainly does not appear from the decisions
whether raising a reasonable doubt and demonstrating the probability of what he seeks to
prove are equivalent or exactly how they are related. (On the burden of proof, see also
Nyakite s/o Oyugi v. R., [1959] E.A. 322 (C.A.), R. v. Retief, (1941) 8 E.A.C.A. 71.
2.
Insanity
Section 11 P.C. Provides:11. Every person is presumed to be of sound mind, and to have been of
sound mind at any time which comes in question, until the contrary is
proved.
This is a rebuttable presumption of law (see discussion, infra), and is the

presumption referred to in the quotation from Godiyanos case, supra p.40, in relation to
the burden of proof when the defence of intoxication is predicated upon s.13(2) P.C. where
the alleged insanity is the result of intoxication. The statement is also applicable to defence
of insanity not arising from intoxication.
In the decision of R. v. C.W. Ross, (1932), 14 K.L.R. 48, it was held that on a trial for
murder where the defence is insanity, the accused person to exempt himself from cirminal
responsibility must satisfy the jury beyond any reasonable doubt that he was insane int he
legal sense at the time of committing the act.
This decision has never been referred to in subsequent East African Reports, but has
clearly been superceded, not only by Godiyanos case but by R. v. Mwose w/o Mwiba,
(1948), 15 E.A.C.A. 161 wherein it was held that the well-settled law is now that the onus on
an accused person to establish insanity is no higher than that on a party to a civil case on
whom is laid the burden of proving a particular issue, following Sodeman v. R., (1946), 2
A.E.R. 1138 and R. v. Noormahomed Kanji, (1937), 4 E.A.C.A. 34.
Elaborating, the Court in R. v. Kamau s/o Njoroge, (1939), 6 E.A.C.A. 133 said:
The burden of proving this incapacity is on the defence and the
appellant will be deemed to have discharged that burden if he
has shown that the preponderance of evidence supports a
defence of insanity.
See also R. v. Kibiegon arap Bargutwa, (1939), 6 E.A.C.A. 142; R. v. Muna s/o Mubaba,
(1939), 18 K.L.R. (2) 141; R. v Kachinga, (1946) 13 E.A.C.A. 135, wherein the Court said:
It is, generally speaking, sufficient if he (the accused) produces such a preponderance of
evidence as to show that the conclusion that he was insane at the time of the offence is
substantially the most probable of the possible views of the facts.
The matter was discussed in slightly discussed in slightly different terms in R. v.
Saidi Kabila Kiunga, [1963] E.A. 1 (T), where the Court said at p. 2:When insanity is advanced by the defence; ...... the burden of proof is on the
defence, although it is not a heavy burden. As WINDHAM, J.A. ..... said in Nyinge
s/o Suwatu v. R., [1959] E.A. 974 (C.A.):
he must show, on all the evidence, that insanity is more likely than sanity,
though it may be ever so little more likely. Merely to raise a reasonable
doubt might still leave the balance tilted on the side of sanity.
Here, as the headnote says, the evidence regarding the accuseds insanity did no
more than raise a doubt as to the sanity of the accused at the time of the act, but it fell far
short of establishing a margin of probability on the side of insanity.
It would appear that the language of the Court in Saidis case is not inconsistent
with the language in Godiyanos and Kamaus cases, supra, and that the terms insanity is
more likely than sanity, margin of probability, and preponderance of the evidence all
refer to the same standard of proof, no higher than the burden which rests on a party of
civil proceedings.
(Note: If the insanity is alleged to have been caused by a physical as opposed to a mental
disease, such as an offence committed by an alleged epileptic, the burden is on the accused
to show that at the time of the commission of the offence he was suffering from an epileptic
seizure. See: R. v. Salim bin Saidi, (1930), 1 T.L.R. (R) 123.)
h. The burden of proving circumstances bringing a case within exception or exemption

from or qualification to the law.
S.111(1) K.E.A provides:111.(1) When a person is accused of any offence, the burden or proving the
existence of circumstances bringing the case within any exception or exemption
from, or qualification to, the operation of the law creating the offence with which he
is charged and the burden of proving any fact especially within the knowledge of
such person is upon him:
Provided that such burden shall be deemed to be discharged if the court is satisfied
by evidence given by the prosecution, whether in cross examination or otherwise,
that such circumstances or facts exist:
........................................
Subs.111(2)(b) provides further:(2) Nothing in this section shall:
(b) impose on the prosecution the burden of proving that the circumstances
or facts described in subsection (1) of this section do not exist;
..............................................
1.
Exceptions and exemptions from, and qualifications to the operation of the
law general
If a person is an exception to the operation of the law, he is not included; it does not
apply to him. If a person is exempted from the operation of the lawyers is not subject to its
application for a particular reason. If there in a qualification to the operation of the law,
its operation is modified, limited or restricted.
If a person enters a plea of not guilty in cases to which s.111(1) applies, he is not
entering the normal claim that he did not do the acts complained of: rather he is saying in
effect If I did in fact do what the prosecution claims I did, nevertheless I am not guilty of
an offence because the law does not apply to me, or does not apply to what I did in the
circumstances of this case.
Thus, for example, it may be proved that an accused acted in a particular way with
respect to property, but the accused claims that the actions were done or omitted to be done
in the exercise of an honest claim of right and without intention to defraud; s.8 P.C., or that
what he did or omitted was under an honest and reasonable, but mistaken belief in the state
of things, and that he is not guilty to any greater extent than if the real state of things had
been such as he believed to exist; s.10 P.Cp.
In circumstances such as these, the burden of proving these circumstances is on the
accused, and the prosecution has no burden to prove that the circumstances did not exist,
although the burden may be discharged if by prosecution evidence, from cross examination
exception, exemption or qualification.
In this section, s.111 K.E.A is identical in wording to s.105 I.E.A as amended, and
most of the cases will refer to s.105. See pp.37-38.
It should be kept in mind that proving circumstances or facts as set forth in s.111 is
a different matter from establishing a defence, which is not required except in cases of
insanity. See Data s/o Mtaki v R., [1959] E.A 862 (C.A)
2.
Where a burden is placed upon the accused by statute
Those cases in which a burden of proof is placed on an accused person by statute

must be distinguished from (a) those cases where the burden to prove the existence of
circumstances bringing the case within an exception, etc., and (b) those cases where the
burden of proving any fact within the knowledge of an accused is upon him. In statutory
burden cases, s.111 is not applicable.
The basic East African authority for this proposition is Ali Ahmed Saleh Amgara v.
R., [1959] E.a. 654 (C.A), in which the appellant had been convicted on two counts of
importing restricted goods, contrary to para. (a)(ii) of s.147 of the East African Customs
Management Act, 1952. Under s.167(b) of the Act, the onus of proving that those goods,
gold, were imported lawfully, that is to say that since the gold was unlicensed it was in
transit and that there was no intention to dispose of it in Kenya, was placed on the accused.
On appeal Counsel argued that there had been a misdirection in the Supreme Court, and
that the onus on an accused person under s.105 I.E.A. and s.167 of the Customs Act was no
more than to raise a reasonable doubt. The Court of Appeal said on p.658:Where, as in the instate case, there is a specific provision in a statute
placing the burden of proof regarding a particular matter on the person accused,
there is no need for the prosecution to rely upon s.105.... and we think that the
application of that section must be excluded, even though it would otherwise have
been applicable, and that the principles of English law would apply. Nevertheless,
even if it might be thought that by analogy the degree of the burden on the accused
should be drawn from s.105, we do not think that there is any material difference
between s.105 of the Evidence Act and the English Law on the point. The position
under English Law is stated in PHIPSON ON EVIDENCE (9th edn) at .38 as
follows.
When, however, the burden of an issue is upon the accused, he is not, in
general, called on to prove it beyond a reasonable doubt or in default to incur
a verdict of guilty; it is sufficient if he succeed in proving a prima facie case,
for then the burden is shifted to the prosecution, which has still to discharge
its original onus that never shifts, i.e. that of establishing, on the whole case,
guilt beyond a reasonable doubt.
We accept that statement of the law. In R. v. Carr-Briant, [1943] K.B. 607, which is
one of the cases cited in PHIPSON in support of the proposition just stated (and is
also cited in the commentary on s.105 of the Indian Evidence Act in SARKAR ON
EVIDENCE (4th Edn.) ag p. 698) the Court of Criminal Appeal said, at p.612:
In our jugement, in any case where, either by statute or at common law,
some matter is presumed against an accused person ùnless the contrary is
proved, the jury should be directed that it is for them to decide whether the
contrary is proved, that the burden of proof required is less than that
required
at the hands of the prosecution in proving the case beyond a
reasonable
doubt, and that the burden may be discharged by evidence satisfying
the jury
of the probability of that which the accused is called upon to
establish.
......It still, of course, remains for the court to be satisfied beyond reasonable doubt as to the
guilt of the accused on the whole of the evidence and this, in substance, is all that is enacted
by the second proviso to s.105......
Amgaras case has been quoted in extenso and its principles applied in R. v.
Mohanlal Ramji Popat, [1961] E.A. 263 (C.A.) a case under s.137(1)(t) of the Bankruptcy
Ordinance (Cap.30) of Kenya, which throws on a debtor the burden of showing that at the
time he contracted a debt he had reasonable or probable grounds of expectation of being
able to pay it; quoted and discussed, contrasting application of the rule with s.105 in
Omparkash Ghandi v. R., [1961] E.A. 643 (K); and quoted and applied in Chebusit
AKalia v. R., [1963] E.A. 448, 453 (K) in a case involving stock theft (see below).
The burden of proof in these statutory burden cases is a persuasive burden, as
distinguished from an evidential burden.
See Omparkash Ghandis case, p.650 and
discussion below. The burden upon the accused must be satisfied to the extent of showing a
balance of probability, as in cases of insanity.
In Gamalieri Mubito v. R., [1961] E.A. 244, 247 (C.A.) under the Game
(Preservation and Control) Ordinance, 1959 wherein s.23 placed upon an accused charged
with being in possession of, selling, etc. trophies obtained in contravention of the
Ordinance, the burden of proving that the trophy was lawfully obtained, the Court
indicated that the accused need only put forward an explanation which might reasonably
be true. Another phrasing of the standard of proof required is R. v. Bashir Ahmed, (1945),
21 K.L.R.(2) 29 where the Native Liquor (Amendment) Ordinance, 1941, s.4 had placed
upon an accused the onus to prove that liquor was in his possession without his knowledge
once possession had been proved. Here the Court held that the onus on the accused is not
as heavy as that resting on the prosecution in ordinary criminal cases and would be
sufficiently discharged if the evidence, taken as a whole, established that the lack of
knowledge on the part of the accused was so probable that a prudent man ought, under the
circumstances, to believe that fact, citing s.3 I.E.A.; see also R. v. Dewji Pragji Mehta,
(1946), 13 E.A.C.A. 80, possession of diamonds, also under s.3. For other examples of
instances placing a burden on the accused by law see: R. v. Ramathan Jabi; (1948), 23
K.L.R. (1) 81, charge of unlawful possession of Crown Land; Mohamed Hussein v The
Price Controller, (1941), 10 E.A.C.A. 72, Defence (Price of Goods) Regulation, 1941, giving
false information in answer to request of Price Controller, burden of proving that accused
neither a wholesaler nor retailer on him.
Cases dealing with possession of stolen goods, s.324(2) P.C. will be found under the
subject of presumption, s.119K.E.A., infra.
In Ouko v R., [1966] E.A. 286 (K), where the accused was charged under s.3(1) of
the Prevention of Corruption Act (Cap.65) and the accuseds defence was that the case had
been fabricated against him, it was held a misdirection for the Magistate to hoel that all
that was necessary for the accused to succeed was to show on the balance of probabilities
that the case was a fabrication; the Court noted that this was not one of the special cases
where the Legislature had with deliberation and in set terms thrown the burden of proof
upon the accused.
Immigration cases raising questions of unlawful entry through misrepresentation,
etc. and the onus resting on an accused are discussed in Attorney General v Govindji H.N.
Shah, [1961] E.A. 110 (C.A.) at pp. 117-118. The trial Judge had said:
I am satisfied that once it is established or admitted that the plaintiff duly
reported to the immigration officer and was permitted by him to enter ..... the
onus upon the plaintiff of proving that he is not a prohibited immigrant has
been prima facie discharged and that thereafter the onus of establishing that
the case comes within the provisions of s.8 of the Immigration Ordinance
lies upon theperson who asserts that this is so, at least to the extent of
raising a prima facie case.
The court said:
That may well be correct in a case where no misrepresentation has been
proved to have been made: Bhanabhais case. (Ex parte Bhagubhai Bhanabhai, (1954), 27
K.L.R. 134). It is correct that, in such a case, the provisional burden of proof depending on
the state of the evidence, which LORD DENNING, in Huyton-with-Roby U.D.C v Hunter,
[1955] 2 ALL E.R. 398; and Dunn v Dunn, [1946] 2All E.R. 822, distinguished from the
legal burden of proof, is shifted by showing that the immigration officer at the port of entry
was satisfied that the immigrants entry was lawful. That would not shift the legal burden
of proving that the immigrant was not a prohibited immigrant at the time of first entry
which, under s.18(2) of the Ordinance, remains upon the immigrant and does not shift, so
that at the end of the case it would be the duty of the judge to ask himself: `Has that
burden been discharged? Dunn v Dunn. In Bhanabhais case it was held that it had been
discharged. But, where it is proved that there has been a prior material misrepresentation
ot the Immigration Department .... not even the provisional burden of proof is shifted: the
burden of proof that the immigrant is not, or was not when he entered, a prohibited
immigrant and that his entry and presence in the Colony was and is lawful, rests squarely
upon the immigrant under s.18(2) of the Ordinance: Ramjis case (Hirji Devchand Ramji v.
Attorney General for Kenya, (1956), 23 E.A.C.A. 20) and Chimanlals case. (Chimanlal
Motibhas Hira Patel v The Attorney General, [1960] E.A. 388 (C.A.).
Other cases, for example Mandhan Devraj v. R., (1955), 22 E.A.C.A 488 have been decided
on the basis of s.105 I.E.A. or equivalents, see below. See also Abdillahi Jama Awaleh v. R.,
[1958] E.A. 20, 27 (C.A.).
(Note: s.15 of the Immigration Act, 1967 (No.25 of 1967) reads:15. Whenever in any legal proceedings under or for any of the purposes of this Act
any one or more of the following questions is in issue, namely:(a)
Whether or not a person is a citizen of Kenya;
(b)
Whether or not a person is one of the persons mentioned in section

4(3) of this Act;
(c)
Whether or not there has been issued or granted to pass, authority,

approval or consent, whether under this Act or under the repealed
Acts;
(d)
Whether or not any person was at any time entitled to any such
issue or grant as is referred to in paragraph (c) of this section,
the burden of proof shall lie on the person contending that such person is a citizen of
Kenya, or one of the persons mentioned in the said subsection, or a person to whom
such an issue or grant was made, or a person who was entitled to an issue or grant,
as the case may be.
The Court in Chubusit AKalia v R., [1963] E.A. 448 (K) discussed the changes in
the wording of s.10(1) of the Stock and Produce Theft Ordinance (now s.9(1) of the Stock
and Produce Theft Act, Cap. 355) which now reads:
9.(1) Any person who has in his possession any stock which may reasonably be
suspected of being stolen of unlawfully obtained shall, if he fails to prove to the
satisfaction of the Court that he came by the stock lawfully, be guilty of an offence
.......
and, after setting forth and considering the law on the burden of proof as found in Ali
Ahmed Saleh Amgara v. R., supra p.44, concluded (p.454):..... a person in possession in a proclaimed district of any stock which is reasonably
suspected of having been stolen or unlawfully obtained can only be convicted under
the section if he fails to show that no offence was committed in respect of his
acquisition of the stock.
It should be noted that the phrase in a proclaimed district was deleted by the First
Schedule of Act No.21/1966. The Court also noted that the previous rule as found in Kipsoi
arap Soiyot, (1941), 19 K.L.R. 89 is no longer good law. Presumably the same would apply
to other earlier cases: R. V. Kiberenge s/o Kachilichili, (1946), 22 K.L.R. (1) 36; R. V,
Mathayo Oyoo, (1945), 21 K.L.R. (2) 54; R. v. Kimuge Arap Ngelenu, (1939), 18 K.L.R.(2)
153.
3.
The onus of proof under s.111 K.E.A.

In those cases where the burden of proof is placed on an accused by viture of s.111,
the onus of proof is different from that set forth in Amgaras case see p.44 - where the
burden is on the accused by statute. This distinction is discussed in Omparkash Ghandi v.
R., [1961] E.A. 643, 650 (K):Now the onus which is placed upon the defence by s.105 of the Indian Evidence Act
is to prove two types of facts. The first type of facts are circumstances bringing the
case within any exception, exemption from or qualification to the operation of the
law
creating the offences. The second type of facts are those which are especially within
the knowledge of the person accused. Difficulties sometimes arise as to facts especially
within the knowledge of the person accused as to whether they have to be
proved
negatived by the prosecution as part of the general issue or whether they
have
proved by the defence as facts specially within the accuseds own
or
to
be
knowledge.
Fortunately no such difficulty arises in this appeal since it is clear that to
avoid
conviction the appellant had to obtain the benefit of the proviso to s.97, sub- s.(2), of the
Traffic Ordinance, 1953, by showing that the offence was committed without
knowlege or consent and that he had taken all reasonable precautions to
issue which was really in question was whether he had taken all
upon the appellant, however, was no tto establish that he had
his
avoid it. The
reasonable of proof
taken
all
reasonable
precautions to avoid the commission of the offence. The onus of proof upon the appellant,
however, was not to establish that he had taken all
reasonable precautions to avoid
the commission of the offence, it was to prove
circumstances bringing the case within
that exception. The distinction is perhaps a
fine one, but we think it is important
since, in our opinion, if the accused establishes
certain circumstances which he suggests
are capable of bringing the case within the
proviso, then it is for the prosecution to
show conclusively that such circumstances
do not bring the case within the proviso.
We thing it follows that the section does
not have the effect of raising a presumption in
favour of the prosecution until the contrary is proved in the sense of the presumptions
involved in the cases of (R. v.
[1943] K.B. 607, and R. v.
Sodeman, [1936], 2 All E.R. 1138, R. v. Carr-Briant,
Dunbar, p[1957] 1 Q.B. 547; 1 All E.R. 734). It, therefore,
follows, in our opinion, that
the onus on the defence is an onus of evidential proof
and not an onus of persuasive
proof.
proviso to sub-s.(1) and by the
exclusion from the scope of the section of the special
defence of insanity in which
persuasive proof is required. In our opinion the effect
of s.105 in the present appeal
was that it was for the appellant to show from the
evidence adduced by the defence
or by the prosecution that there was evidential material
capable of being believe
This appears to be confirmed by the second
dand capable of brining the case within the proviso ...... It was
then for the court to decide if that evidential material sufficed to bring the case within the
proviso and if
there was any doubt as to that or as to any other material ingredient
of the offence the appellant was entitled to be acquitted in accordance with the second
proviso to
493.
sub-s. (1) of s.105 of the Act: Madan Devraj v. R., (1955), 22 E.A.C.A. 488 at
(emphasis added).
Thus the section cannot by any implication be utilized to cast on the accused the
burden of proving his innocence, i.e. it does not cast upon him any burden to prove that no
cirme was committed by proving facts lying specially within his knowledge. See Abdillahi
Jama Awaleh v. R., [1958] E.A. 20 (C.A) p.27; Remat Nanji Ahmed v. r., [1959] E.A. 804 (T)
p. 811. The standard of proof is set forth in Ali Hassan Mohamed v. R., [1959] E.A. 606 (K)
@ p.608:....... the onus upon the defence will be discharged if the court is satisfied that the
evidence given by either the prosecution or the defence creats a reasonable dobut
as to the guilt of the accused person in respec of the offence.
drawing on the language of the section.
4.
Cases involving exceptions, exemptions and qualifications.
In R.B. Patel v R., [1959] E.A 97 (C.A.), the accused was found in possession of
currency notes for which no exchange control permit had been obtained. He was in
possession of an airline ticket to Bombay via Aden, and his departure declaration form
showed that he gave his country of destination as India. The Exchange Control Ordinance
(No. 40/1950), s.22(1) reads:
22(1) The exportation from the Colony of - (a) any notes of a class which
are or have at any time been legal tender in the United Kingdom or any part
of the United Kingdom or in any other territory .... is hereby prohibited
except
with the persmission of the member.
An exemption had been granted under appropriate authority which read:-
3 (1) There shall be exempted from the provisions of s.22 of the Ordinance, the
exportation for the Colony (i)
by any traveller to .... Aden ..... on his person or in his baggage of

any currency notes or postal orders
The Court held that under the facts there had been no attempt to discharge the onus which
lay upon the appellent of showing that he fell within the exception by any suggestion that
he intended to apply for any permit, or exchange his currency notes for any draft or other
form of credit in Aden.
Abdul Hussein v. R., [1959] E.A. 105 (K) involved an accused who operated a
grocery store in Nairobi on Crown land within a military compound without a Municipal
licence as required by the Municipal By-laws. The accused contended that since the
premises were on Crown land, prima facie the By laws had no application, and that the
onus was on the prosecution to establish that in the circumstances of the case the By-laws
did, in fact, apply to the premises, and that the prosecution failed to discharge that onus.
The Court said at p.108:....Although there was nothing in the evidence to show how the appellant
came to be in occupation of the premises, it seems clear that he was a
member of the public and not a servent of the Crown. There was nothing to
indicate that he had any good claim to Crown status. On those facts there
was a prima facie case against the appellant and the burden lay on him of
proving the existence of circumstances which would exempt him from the
operation of the By-laws. In our view the appellant did not discharge that
burden, even to the extent of raising a reasonable doubt.
The relevant section in Omparkash Ghandi v. R., [1961] E.A. 643 (K) was s.97(2) of the
Traffic Ordinance, 1953, which reads:-
(2) If any public service vehicle carries more persons, baggage or goods
than it is licensed to carry, the driver, conductor and the owner of such vehicle shall be
guilty of an offence.....
Provided that the owner shall not be guilty as aforesaid if such offence is
committed without his knowledge or consent and if he took all reasonable precautions to
prevent it.
The Court held that the proviso was an exception or qualification to the law creating
the offence stated in the earlier part of the sub-section, and therefore the onus of proving
circumstances entitled the appellant to the benefit of the proviso feel upon him by virture of
s.105 I.E.A. The appeal was allowed owing to a misdirection by the trial magistrate as to
the burden of proof required and other matters. The appellant had merely to prove the
existence of circumstances which might amount to proof that he had taken all reasonable
precautions, and it then was for the prosecution to prove beyond doubt that any facts so
proved did not establish that all reasonable precautions had been taken as well as to prove
all the other essentials of the offence.
In Bombay Trading Stores v. R., [1962] E.A. 589 (C.A) the appellant had been
convicted under the Uganda Pharmacy and Poisons Act (Cap.273) of selling poisons to an
unauthorised person. Section 29(4) created an absolute prohibition against the sale of such
poison, followed by words of exception. (The Court decided that the fact that the words of
exception were, in fact, contained in an earlier subsection was not material). After reaching
the conclusion (p/593) that whether M. was a person to whom the poisons could be sold was
not a fact specially within the knowledge of the appellants, the Court said at pp.594-5:.... We think that it is to be gathered from the authorities discussed above
that the question whether a particular provision creates an exception affecting the burden
of proof must be resolved by construing as a whole the legislation in which it is contained,
in which task the fact that the exception is expressed before, within, or after the provision
creating the offence may possibly be a relevant, but is certainly not a determining factor.
We are therefore of opinion that the sale of Part I poison prima facie constitutes an offence,
that the first part of s.104(1) applies in the circumstances of this case and that the burden
of proving circumstances bringing the case within the exception to the operation of sub-s.
(4) lay upon the appellants. In short, the onus was upon the appellants to prove not only
that they were authorised to sell Part I poison, but also that Musoke was a person to whom
they were authorised to sell Part I poison under s.29.
5.
Cases involving facts especially within the knowledge of the accused.

It should be noted that the obligation cast by s.111 on an accused person of proving
any fact especially within his knowledge does not cast upon him the burden of proving that
no crime was committed; see Mwaitige v. R., [1961] E.A. 470, 475 (C.A.), citing authority.
Certain types of case have been held to fall doubly within the provisions of s.111(1),
notably those involving licences. In Mohamed Hassan Ismail v. R., (1955), 22 E.A.C.A. 461
the accused had been convicted for being in possession of a firearm and ammunition
without the requisite certificate. Possession was proved and admitted, but no evidence was
called by either side concerning the certificate, the evidence showing that the appellant had
been asked to produce a certificate and had said that he had it, but although given evey
opportunity, failed to produce it was only able to produce a certificate for the previous year.
The Court said at p.463:In the present case we think that the possession by the appellant of a firearm
licence is a matter which falls twice over within the above provision, (s.105(1)I.E.A.),
for not only is it in our view a circumstances bringing the case `within an exception
or
exemption from the operation of section 4(1) of the Firearms Ordinance, but also it
is
a fact èspecially within the knowledge of the appellant.

See also John Nzoli v. R., [1961] E.A. 575 (K) wherein it was held that as the vehicle
in question carried a passanger or passengers for hire or reward, it was a public service
vehicle as defined in s.2 of the Traffic Ordinance, 1953, and under s.105 I.E.A. the onus was
upon the first appellant to show that there was a public service licence in force, referring to
Mohamed Hassan Ismail v. R. See also Fatch Ali Shah Mushad v. R., (1939), 1 T.L.R. (R)
229 where, in a case involving a charge of buying raw gold without a licence it was held
that when the prosecution had led sufficient evidence in respect of the purchase of raw gold
by the appellant, the onus of proof was shifted to him to prove that he was licensed to buy
gold if it was sought to bring the case within the exception to the operation of the section
under which he was charged, seeing that the negative averment in the charge (not being a
licensed gold dealer) was on that related to him personnaly and was peculiarly within his
knowledge. On appeal, (1940), 7 E.A.C.A. 41, the Court expressed the opinion that the case
fell within the exact language of s.105 and might have been decided on the ground that it
was for the appellant to prove that he came within the exception to the law by showing that
he had taken out a licence.
In R. v. Central African Contractors Ltd., (1944), 21 K.L.R. (2) 32 the accused was
convicted under the Defence (Control of Prices) Regulations, 1943 of selling various priceregulated goods at prices exceeding the maximum prices fixed under the Regulations. the
accused claimed that the difference over the price of eggs was well within the legitimate
charge for transport on eggs.
In no case did a sale invoice indicate any charge for
transport on the sale and delivery of the eggs, and certain exhibits inciated that they
delivered produce free of charge. It was held that the cost of transport was a matter
exclusively within the knowledge of the accused and he had the onus to prove it. On the
other hand it was held in Mwaitige v. R., [1961] .E.A 470, 475 (C.A.) the Court held that the
identity of the producer of coffee and the district in which it had been grown were not facts
especially within the other hands since it left the producer and before the accused acquired
it.
When an employee was injured feeding leave into a sisal decorticating machine, the
appellant in Kanji and Kanji v. R., [1961] E.A. 411 (C.A) was convicted under ss 23(1) and
75 of the Factories Ordinance (Cap. 297) of Kenya in that they failed properly to fence the
machine and as a consequence of this breach of duty the employee was injured. The
Magistrate made a finding on the condition of the machine on the date of the accident from
the evidence of a factor inspector who had inspected the machine five months after the
accident. The Court held that it had been wrong to hold that a change occuring in the
machine between the date of the accident and the date of the inspection by the factory
inspector would be a matter especially within the knowledge of the appellants within
s.105, it being well established that the section doe not cast upon an accused the burden of
proving that no crime was committed, and the appeal was decided on other grounds.
It
has also been held in James Mutemi s/o Mbiti v. R. (1949), 23 K.L.R (2) 98 that the burden
of proving that passengers were being carried for hire or reward under the Transport
Licencing (Amd.) Ordinance, 1937, s.4(1) was on the prosection, being an averment of
positive fact and not a fact especially within the accuseds knowledge. Notice the difference
between the positive averment here, and the negative averment in Fathed Ali Shah
Mushad, above.
Chandaria v. R., [1966] E.A. 246 (C.A.) presented an interesting problem of
interpretation under s.111 K.E.A.
The accused was convicted on eleven counts of
attempting to commit offences under the Exchange Control Act by mailing currency to one
K.H.C. in London. The question was whether K.H.C. was a person resident outside the
scheduled territories. A letter seized by the police clearly showed that K.H.C. was living in
London with his wife and children, was carrying on a business, and was considering buying
a building. Counsel for the Republic cotended that once a prima facie case had been
established that K.H.C was resident outside the scheduled territories, the burden of proof
would shift to the accused under s.111, relying on Mohamed Hassan Ismail, supra. The
Court said at p.250:In the first (of the cases cited by Counsel) the question in issue was whether or not
the accused was an alien; in the second the question in issue was whether
sausages made by the accused contained pork and, if so, in what proportion; in the
third, the question in issue was whether the accused had a certificate entitling him to
possess a firearm. Those were all questions which the accused persons could
answer and probably no one else. Once the prosecution had established a prima
facie case, the onus therefore shifted. We think, however, that the position is
essentially different here.
In the cases cited, the accuseds knowledge was
knowledge of his own, personal, circumstances: one knew his own nationality, one
the ingredients of the sausages he made and one whether or not he had obtained a
firearms certificate. Here, we are being asked to say that a fact relating to someone
else was especially within the knowledge of the appellant. The fact in issue was
where Khimchand and resident; that fact could on be arrived at by influence from
other, primary, facts and possibly, though not necessarily, from a knowledge of
Khimohands intentions. The appellant may have known of his own knowledge,
some of the primary facts from which resident could be inferred by it was
impossible
to be sure that he knew them all and he certainly could not know Khimohand
purporting to set out his intentions but these could do no more than found a belief in
the appellants mind as to Khimchands residence. It would not be a matter of
knowledge and therefore s.111 would not apply.
For additional immigration cases under s.105 I.E.A. or equivalents, see Mandan Devraj v.
R., 1955, 22 E.A.C.A. 488, 493: Patel v Attorney General, [1960] E.A. 388 (C.A.), burden of
proving entry was lawful was on accused being a fact especially within his or his familys
knowledge.
I.
Proof of special knowledge in civil proceedings

Section 112 K.E.A reads:112. In civil proceedings, when any fact is especially within the knowledge of any
party to these proceedings, the burden of proving or disproving that fact is upon
him.
......................................
Section 106 I.E.A from which s. 112 was drawn, read:

106. When any fact is especially within the knowledge of any person, the burden of
proving that fact is upon him.
The words in civil proceedings were added when the section was enacted by virture of
Ordinance 30/1936, and when the Evidence Act, 1963 was enacted the words or
dispreving were included, as well as party to those proceedings which was substituted
for the words any person in the old section.
In civil cases it is the duty of a party, personally knowing the whole circumstances of
the case, to give evidence on his behalf and to submit to cross-examination; his nonappearance would be one of the strongest circumstances going to discredit the truth of his
case.
When a person does some act with some intention other than that which the
character and circumstances of the act suggest, the burden of proving that intention is
upon him. For example:A is charged with travelling on a railway without a ticket. The burden of proving
that he had a ticket is upon him.
Before the 1963 Evidence Act added the word or disproving, the burden was one
of proving affirmative facts, not disproving facts, and the amendment has raised some still
unanswered questions. An example of the application of th eold section (s.106 I.E.A. as
amended by Ord. 30/1936) is Pritam v Commissioner of Internal Revenue, [1961] E.a. 671
(K), in which an assessment was made under s.105 (1) of the East African Income Tax
(Management) Act, 1958, which reads:-
An assessment may be made under s.102, s.103 or s.104 at any time prior to the
expiry of seven years after the year of income to which the assessment relatos;
provided that:(a)
Where any fraud or any gross or wilful neglect has been committed
by or on behalf of any person in connection with or in relation to tax
for any year of income, an assessment in relation to such year of
income may be made at any time.
More an assessment was made after the end of seven years. The Commissioner argued that
the onus was always on the taxpayer to show that the original assessment is excessive, and
that by virtue of s.106 I.E.A. the burden of proving that an assessment is barred by a
statute is on the taxpayer.
The Court held that if the respondent (Commissioner) sought to maintain that any
particular assessment which, on the face of it, is expressed to have been made more than
seven years after the end of the year of income to which it relates, was not statute barred,
he must call evidence of such a nature as to establish that there was a preponderance of
probabiltiy that the taxpayer in relation to his income tax for the relevant year of
assessment either acted fraudulently or was in gross or wilful default.
Discussing the application of the section, the Court said on p.675:Admittedly it must be peculiarly within the knowledge of the taxpayer whether he
has committed fraud or gross neglect in relation to his income but the burden
created by (the section) is a burden of proving affirmative facts, not of disproving
facts; in fact, (Counsels) contention, if correct, would entail casting in every civil
case in which fraud is alleged the burden of disproving fraud upon the party against
whom fraud is alleged. (emphasis added).
(Note: reference in the report is to s.105, but the section quoted is s.106, which is correct).
Thus here the affirmative burden of proving facts places upon the Commissioner the
burden of proving the fraud or wilful or gross neglect on the party which alleged them, in
order to satisfy the condition which would allow the assessment to be made after the expiry
of the statutory period.
Under the section as it now reads, where a burden of proving or disproving facts
especially within his knowledge placed upon a party, and in as much as it must be
peculiarly within the knowledge of the taxpayer whether he has committed fraud or gross
neglect in relation to his income....., what would be the position if the same case were
heard today?:1.
Assessment brought after seven years.
2.
Commissioner alleges fraud in preparation or original tax return allowing him to
bring an assessment after the expiry of the statutory period

.Query: Is the burden of disproving fraud placed upon the taxpayer by the allegation in
the pleadings?
It is submitted that a mere allegation of fraud in the pleadings would not be
sufficient to shift to a defendant a burden of disproving fraud, but that the plaintiff will be
required to make out a prima facie case before the burden will shift, especially since the
Court of Appeal has held 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 is required. R.G. Patel v Lalji
Makanji/. [1957] E.a. 314 (C.A.).
There have been, todate, no reporte cames on the burden of disprovingfacts
especially within the knowledge of a party. However several cases reporte illustrate how
the burden of proving facts has been placed on a person by virtue of the section.
In Ali K. Virani v United Africa Co., [1958] E.A. 204 (C.A.) the applicants
knowingly sold coffee at an unreasonably low price. Soon after the police seized the coffee
under a search warrant. The director was charged with receiving it knowing it to have
been stolen, and was convicted. The coffee was never returned to the respondents who
claimed the return of the price paid. When the respondents closed their case the appellants
called no evidence, but submitted that there was no evidence before the court that the
appellants had no title to the coffee. On appeal the Court thought that the facts raised a
strong prima facie probability that there was outstanding a claim of right in some person
antecedent to the appellants title rendering it at best defective, and said on p.210:At the very least, the facts proved were sufficient to place, by virtue of s.106
of the Indian Evidence Act, the onus on the appellants to prove two facts,
both peculiarly within their own knowledge, that they had a right to sell the
coffee (see s.14(a) of the Sale of Goods Ordinance), and that the failure of
the respondents to obtain quiet possession (see s.14(b)) was not due to any
cause for which in law they were responsible. The appellants, however,
deliberately chose to call on evidence.
A case under s.112 K.E.A. is East African Road Services Ltd v J.s. Davis & Co. Ltd.,
[1965 E.A. 676 (K). The plaintiff consigned goods to the defendant, a carrier, for carriage
from Nairobi to Tanzania. None of the goods were delivered and the plaintiff sued for the
loss. At the trial no evidence was given as to the reason for non-delivery. The defendant
relied on an exemption clause in the contract which excluded liability for loss whether or
not such loss ..... was caused by or through or due to the negligence of the (defendant) or its
servants or agents or otherwise. However, it was common ground that the exemption
clause could not be relied on if there had been a fundamortal departure from the
performance of the contract by the appellant. The trial Magistrate gave judgement for the
respondent. On Appeal the question in issue was whether the burden of proof lay on the
respondent as customer to prove that there had been a fundamental breach of the
performance of the contract, or on the appellant as carrier of proving that there had not.
The Court quoted from CHESHIRE AND FIFOOT ON THE LAW OF CONTRACT (6th
Edn.) at p.121 which commented on and approved the decision in Hung & Winterbothan
(West of England) Ltd. v. B.R.S. (Parcels) Ltd., [1962] 1. Q.B. 617; 1All E.R. 111:He who makes an allegation must prove it. It is for the plaintiff to make out
a prima facie case against the defendant. If he succeeds in this, it is for the
defendant to plead and to prove some special defence such as an
exemption clause. The burden must then pass to the plaintiff who in turn
must plead and prove some reason, such as a breach of fundamental
obligation, why the exemption clause is to be disregarded.
The Court then said on p.676:The commentaries on s.106, the equivalent section of the Indian Evidence
Act, do not suggest that there is any essential difference between the
English and the Indian Law on the point, and indicate that in general some
prima facie evidence must be given by the complainant in order to cast the
burden on the adversary. See for instance, SARKAR ON EVIDENCE (10th
Edn), p. 843. It is agreed that non-delivery is prima facie evidence of
negligence; but the plaintiff in view of the exemption clause cannot succeed
unless fundamental breach is established, and in spite of the forceful
arguements of counsel for the defendant to the contrary, I am unable to
accept that non-delivery is either in itself a fundamental breach or
even
the
raises such a prima facie case of a fundamental breach as to cast upon

defendants by virtue of s.112 of the Evidence Act the burden of disproving
it.
This decision, the only authority on s.112 to date, reinforces the submission above
that a mere allegation is not sufficient to cast upon a party a burden of disproving facts
especially within his knowledge, but that the courts will require that a prima facie case be
established before the burden of proof is shifted.
[HOUSE OF LORDS.]
WOOLMINGTON
APPELLANT;
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS

1935 April 5; May 23.
RESPONDENT.
VISCOUNT SANKEY L.C., LORD HEWART

LORD ATKIN, LORD TOMLIN, and LORD WRIGHT.
L.C.J.,
Criminal Law - Murder - Onus of Proof - Accident - Unlawful Intention - Direction to the Jury Reasonable Doubt of Guilt - Criminal Appeal Act, 1907 (7 Edw. 7, c. 23), s. 4.
In a trial for murder the Crown must prove death as the result of a voluntary act of the prisoner
and malice of the prisoner. When evidence of death and malice has been given, the prisoner is
entitled to show by evidence or by examination of the circumstances adduced by the Crown that
the act on his part which caused death was either unintentional or provoked. If the jury are either
satisfied with his explanation or, upon a review of all the evidence, are left in reasonable doubt
whether, even if his explanation be not accepted, the act was unintentional or provoked, the
prisoner
is
entitled
to
be
acquitted.
Statement of the Law in Foster's Crown Law (1762), p. 255, and summing up of Tindal C.J. in
Rex
v.
Greenacre
(1837)
8
C.
&
P.
35
disapproved.
Order of the Court of Criminal Appeal reversed.
APPEAL from an order of the Court of Criminal Appeal refusing leave to Reginald
Woolmington, the appellant, to appeal against his conviction of the wilful murder of Violet
Kathleen
Woolmington,
who
was
his
wife.
The appellant was convicted on February 14, 1935, at Bristol Assizes before Swift J. and a jury.
The appellant and his wife were married on August 25, 1934. He was a farm labourer and bore a
good character. His age was twenty-one and a half years, and his wife was four years younger.
They lived at Castleton, near Sherborne, on the farm of one Cheeseman, the appellant's
employer. On November 22, 1934, the appellant's wife left him and went to live with her mother,
Lilian Smith, a widow, at 24 Newtown, Milborne Port. The appellant wanted her to go back to
him and made efforts to induce her to go back, but she would not.
Next door to Mrs. Smith lived a Mrs. Brine, a sister of Mrs. Smith and aunt of the deceased
woman. On the morning of December 10, 1934, Mrs. Brine, who was in the back yard of No. 25,
heard the appellant's voice saying: "Are you coming back or not?" and "Where's your mother?"
Then she heard the back door of No. 24 slam, and then the report of a gun. She looked out of her
front window, and saw the appellant. She called to him; he made no reply, but mounted his
bicycle and rode away. She went into No. 24, and found her niece lying on the mat. She had been
shot
through
the
heart.
The appellant gave evidence to the following effect: After a sleepless night on December 9-10 he
thought he might frighten his wife into obedience by threatening to shoot himself. On December
10 he went to the farm till 8.20 A.M.; came home to have his breakfast; then went back to the
farm, and took a gun belonging to Mr. Cheeseman, which lay on a shelf in a barn. Near the gun
was a box containing two cartridges. With a fret-saw belonging to his father he sawed off part of
the barrels and threw that part and the saw into a brook, and loaded the gun with the two
cartridges. Then he put the gun under his overcoat in a pocket used for carrying rabbits, and
returned home. There he attached to the gun some flex for carrying electric current, and with this
he suspended the gun from his right shoulder and under his overcoat; and so equipped he rode on
his bicycle to Mrs. Brine's house. There he tapped at the front door; his wife opened it; she was
washing clothes in the kitchen. They went into the back room. He said: "Are you coming back or
not, Vi?" but got no answer. His wife shut the back door, and they went into the front room. His
wife said she would not go back, but had decided to go into service. Then he said, if she would
not come back to him he would shoot himself; and, to explain how he meant to do this, and to
show her the gun with which he meant to do it, he unbuttoned his overcoat, and brought the gun
across his waist. The gun went off; he did not know it was pointing at his wife. She fell to the
ground. He did not know what to do. He went out of the house and to his own home. There he
saw his mother and told her that he had been up and shot his wife. He threw the gun on a bench
in the outhouse and rode to Mr. Cheeseman and said to him: "I shall not be coming to work any
more,
as
I
have
shot
my
wife."
A note was found in the pocket of the appellant's coat. It was in these terms:"Good
bye
all.
"It is agonies to carry on any longer. I have kept true hoping she would return this is the only
way out. They ruined me and I'll have my revenge. May God forgive me for doing this but it is
the Best thing. Ask Jess to call for the money paid on motor bike (Wed.). Her mother is no good
on this earth but have no more cartridges only 2 one for her and one for me. I am of a sound
mind
now.
Forgive
me
for
all
trouble
caused
"Good
bye
ALL
I love Violet with all my heart
Reg."
The appellant was cross-examined about the date when this note was written, whether it was
before or after the death of his wife. He persisted in his statement that it was written after the
death,
and
gave
his
explanation
of
its
contents.
He said that after having written it he went downstairs and waited for the police; he intended to
shoot himself; he went outside and met his father in the lane. He told his father he was going to
shoot himself, but his father persuaded him not to. Then the policeman arrived and took him to
the police station. When he was charged, he said: "I want to say nothing, except I done it, and
they can do what they like. It was jealousy I suppose. Her mother enticed her away from me. I
done
all
I
could
to
get
her
back,
that's
all."
The appellant was first tried at Taunton on January 23, 1935, before Finlay J. and a jury. After
considering their verdict for an hour and twenty-five minutes that jury disagreed.
At the trial out of which the present appeal arises Swift J. in his summing-up gave the following
direction to the jury: "A charge is made against Reginald Woolmington, the prisoner at the bar, of
wilful murder. It is said that on the morning of December 10, about half-past nine, he murdered
his wife. That she died whilst he was in that house you will, I should think, have little doubt. It is
a matter entirely for you. If you accept his evidence, you will have little doubt that she died in
consequence of a gun-shot wound which was inflicted by a gun which he had taken to this house,
and which was in his hands, or in his possession, at the time that it exploded. If you come to the
conclusion that she died in consequence of injuries from the gun which he was carrying, you are
put by the law of this country into this position: The killing of a human being is homicide,
however he may be killed, and all homicide is presumed to be malicious and murder, unless the
contrary appears from circumstances of alleviation, excuse, or justification. 'In every charge of
murder, the fact of killing being first proved, all the circumstances of accident, necessity, or
infirmity are to be satisfactorily proved by the prisoner, unless they arise out of the evidence
produced against him; for the law presumeth the fact to have been founded in malice, unless the
contrary appeareth.' 1 That has been the law of this country for all time since we had law. Once it
is shown to a jury that somebody has died through the act of another, that is presumed to be
murder, unless the person who has been guilty of the act which causes the death can satisfy a jury
that what happened was something less, something which might be alleviated, something which
might be reduced to a charge of manslaughter, or was something which was accidental, or was
something
which
could
be
justified."
Then, after reviewing and commenting upon the evidence, the learned judge added these words:
"The Crown has got to satisfy you that this woman, Violet Woolmington, died at the prisoner's
hands. They must satisfy you of that beyond any reasonable doubt. If they satisfy you of that,
then he has to show that there are circumstances to be found in the evidence which has been
given from the witness-box in this case, which alleviate the crime so that it is only manslaughter,
or which excuse the homicide altogether by showing that it was a pure accident."
The jury, after considering their verdict for an hour and nine minutes, found the appellant guilty
of
wilful
murder.
The appellant applied to the Court of Criminal Appeal for leave to appeal against his conviction,
but
that
Court,
as
stated
above,
refused
the
application.
The Attorney-General having certified that the decision of the Court of Criminal Appeal involved
a point of law of exceptional public importance and that, in his opinion, it was desirable in the
public interest that a further appeal should be brought, the present appeal was brought before this
House.
April 4. T. J. O'Connor K.C. and J. D. Casswell for the appellant. In delivering the judgment of
the Court of Criminal Appeal, Avory J. said: "The point, and really the only point, of complaint
as regards this summing-up is that the learned judge did not anywhere use the expression that the
jury should acquit the accused altogether, or convict him only of manslaughter, if they
entertained any reasonable doubt about the truth of his explanation of how his wife came by her
death. It may be that it would have been better if the learned judge had in those few words said to
the jury that if they entertained reasonable doubt whether they could accept his explanation, they
should either acquit him altogether or convict him of manslaughter only."
This is precisely the exception which the appellant takes to the summing-up of Swift J.; and the
complaint which he makes against the order of the Court of Criminal Appeal is that the learned
judges did not take a more serious view of the omission of the trial judge to make it quite clear
that the onus still lay upon the prosecution. If at the end of a trial for murder a reasonable doubt
remains in the minds of the jury whether the crime has been committed, it is their duty to acquit.
However the matter may have been regarded in former years, at the present time the Criminal
Law rests on the foundation that, apart from statutory enactment to the contrary, the prosecution
must prove the guilt of the prisoner; otherwise he must be acquitted. Earlier authorities, such as
Sir Michael Foster in the Introduction to the Discourse of Homicide in that learned judge's work
on Crown Law 2; Mackalley's case (1611) 9 Co. Rep. 65 b; Rex v. Legg (1674) Kelyng, 27; Rex v.
Oneby (1727) 2 Ld. Raym. 1484, 1493; East, Pleas of the Crown (1803), p. 224; Rex v.
Greenacre 8 C. & P. 35, 42; and Blackstone, Commentaries 3, are concerned primarily with the
definition of homicide and malice. Sir Michael Foster's description of murder is repeated in
Archbold's Criminal Pleading and Evidence 4 and Russell on Crimes.5 The proper direction to the
jury is thai which was given by Finlay J. at the former trial. That learned judge said: "The case
for the prosecution is deliberate shooting. The defence is, Not Guilty of murder. They" (the
prosecution) "prove the killing, and in the absence of explanation that is murder. The defence say
'Excusable, because accidental.' Consider whether you entertain the slightest doubt that this was
a deliberate killing. If you have no doubt, it is your duty to convict. .... If the result of a
dispassionate survey is to leave a reasonable doubt in your minds, then your duty as well as your
pleasure is to acquit." It is for the prosecution to satisfy the jury on all the evidence that the
prisoner is not an innocent man, but a guilty man. They must take the whole of the evidence into
consideration and then it is not for the prisoner to say: "My explanation is such that it must
satisfy you." It is enough for him if he says: "This is my explanation," and if the jury on
considering it are left in a reasonable doubt. Then it is their duty to acquit the prisoner. "Where, a
prima facie case having been made against him, the defendant offers an explanation, the jury
must be directed that the onus of proof of guilt is still on the prosecution, and that, if on the
whole evidence they are in doubt, they should acquit": Roscoe, Criminal Evidence. 6 This is the
result of numerous decisions: Rex v. Stoddart (1909) 2 Cr. App. R. 217, 244; Rex v. Davies
(1913) 29 Times L. R. 350; 8 Cr. App. R. 211; Rex v. Abramovitch (1914) 31 Times L. R. 88; Rex
v. Aubrey (1915) 11 Cr. App. R. 182; Rex v. Grinberg (1917) 33 Times L. R. 428; Rex v. Sanders
(1919) 14 Cr. App. R. 11; Lawrence v. The King. [1933] A. C. 699, 706
[The following cases were also referred to: Rex v. Sturgess (1913) 9 Cr. App. R. 120; Rex v.
Davies (1913) 29 Times L. R. 350; 8 Cr. App. R. 211; Rex v. Hopper (1915) 11 Cr. App. R. 136;
Rex
v.
Brain.
(1918)
13
Cr.
App.
R.
197]
April 5. J. G. Trapnell K.C. and Reginald Knight for the respondent. The killing of any human
creature is homicide: Blackstone, Commentaries. 7 Felonious homicide is the killing of a human
creature without justification or excuse. 8Manslaughter is the unlawful killing of another without
malice either express or implied. 9 "When a man of sound memory, and of the age of discretion,
unlawfully killeth .... any reasonable creature in rerum natura under the king's peace, with malice
forethought, either expressed by the party, or implied by law" 10 this is murder. Then comes the
question of proving the commission of the crime. The Crown must prove that the prisoner killed
the man. The prisoner knows how he did it; formerly he could not give evidence, but he still
knew. The dead man knew, but cannot say. In the absence of evidence of others, the Court must
needs resort to inference. It considers how the death wound was inflicted; by a gun, or a knife, or
a hammer or other lethal weapon. Such facts supply evidence of malice prepense. When all the
knowledge is in the mind of the accused, it is most reasonable that he should state, or his
advocate should suggest, how the death occurred. It is not necessary to press the point that, in the
absence of other available evidence, killing is per se prima facie evidence of malice, because in
the present case death was inflicted by a lethal weapon; but even so, one cannot with a light heart
dismiss the statement of so high an authority as Sir Michael Foster 11, followed in East 12;
Blackstone, Commentaries13; and repeated in Archbold, Criminal Pleading and Evidence 14, and
Halsbury, Laws of England. 15 Moreover, the appellant's own explanation, that he intended to
frighten his wife into obedience by threatening to shoot himself, and showing her the gun which
he meant to use, discloses an unlawful intention and is sufficient evidence of malice
aforethought.
The additional facts of the note found in the pocket of his coat, and the words: "May God forgive
me for doing this but it is the best thing. .... Her mother is no good .... but I have no more
cartridges only 2 one for her and one for me," show first, that the note was written before the
deed, and secondly that he intended to shoot his wife and himself and that, if he had had a third
cartridge, he would have used it also. Those facts together show that he went to the house with a
malicious intention. If in pursuing a malicious intention a man, even by accident, kills another
person,
that
is
murder.
In that view the case is a proper one for the application of s. 4 of the Criminal Appeal Act, 1907.
Counsel
was
not
called
on
in
reply.
At the end of the argument for the respondent VISCOUNT SANKEY L.C. announced that the
order of the Court of Criminal Appeal would be reversed and that the conviction would be
quashed; and that their Lordships would give their reasons at a later date.
May 23. VISCOUNT SANKEY L.C.My Lords, the appellant, Reginald Woolmington, after a
trial at the Somerset Assizes at Taunton on January 23, at which, after an absence of one hour
and twenty-five minutes, the jury disagreed, was convicted at the Bristol Assizes on February 14
of the wilful murder of his wife on December 10, 1934, and was sentenced to death. He appealed
to the Court of Criminal Appeal, substantially upon the ground that the learned judge had
misdirected the jury by telling them that in the circumstances of the case he was presumed in law
to be guilty of the murder unless he could satisfy the jury that his wife's death was due to an
accident.
The appeal came before the Court of Criminal Appeal upon March 18 and was dismissed. The
Court said "it may be that it might have been better" had the learned judge who tried the case
said to the jury that if they entertained reasonable doubt whether they could accept his
explanation they should either acquit him altogether or convict him of manslaughter only; but,
relying upon s. 4, sub-s. 1, of the Criminal Appeal Act, 1907, which provides "that the court may,
notwithstanding that they are of opinion that the point raised in the appeal might be decided in
favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of
justice
has
actually
occurred,"
they
dismissed
the
appeal.
Thereupon the Attorney-General gave his fiat certifying that the appeal of Reginald
Woolmington involved a point of law of exceptional public importance and that in his opinion it
was desirable in the public interest that a further appeal should be brought. The matter now
comes
before
your
Lordships'
House.
The facts are as follows. Reginald Woolmington is 21 years old. His wife, who was killed, was
17 years old last December. They had known each other for some time and upon August 25 they
were married. Upon October 14 she gave birth to a child. Shortly after that there appears to have
been some quarrelling between them and she left him upon November 22 and went to live with
her mother. Woolmington apparently was anxious to get her to come back, but she did not come.
The prosecution proved that at about 9.15 in the morning of the 10th Mrs. Daisy Brine was
hanging out her washing at the back of her house at 25 Newtown, Milborne Port. While she was
engaged in that occupation, she heard voices from the next door house, No. 24. She knew that in
that house her niece, Reginald Woolmington's wife, was living. She heard and could recognize
the voice of Reginald Woolmington saying something to the effect "are you going to come back
home?" She could not hear the answer. Then the back door in No. 24 was slammed. She heard a
voice in the kitchen but could not tell what it said. Then she heard the sound of a gun. Upon that
she looked out of the front window and she saw Reginald Woolmington, whose voice she had
heard just before speaking in the kitchen, go out and get upon his bicycle, which had been left or
was standing against the wall of her house, No. 25. She called out to him but he gave no reply.
He
looked
at
her
hard
and
then
he
rode
away.
According to Reginald Woolmington's own story, having brooded over and deliberated upon the
position all through the night of December 9, he went on the morning of the 10th in the usual
way to the milking at his employer's farm, and while milking conceived this idea that he would
take the old gun which was in the barn and he would take it up that morning to his wife's
mother's house where she was living, and that he would show her that gun and tell her that he
was going to commit suicide if she did not come back. He would take the gun up for the purpose
of frightening her into coming back to him by causing her to think that he was going to commit
suicide. He finished his milking, went back to his father's house, had breakfast and then left,
taking with him a hack saw. He returned to the farm, went into the barn, got the gun, which had
been used for rook shooting, sawed off the barrels of it, then took the only two cartridges which
were there and put them into the gun. He took the two pieces of the barrel which he had sawn off
and the hack saw, crossed a field about 60 yards wide and dropped them into the brook. Having
done that, he returned on his bicycle, with the gun in his overcoat pocket, to his father's house
and changed his clothes. Then he got a piece of wire flex which he attached to the gun so that he
could suspend it from his shoulder underneath his coat, and so went off to the house where his
wife was living. He knocked at the door, went into the kitchen and asked her: "Are you coming
back?" She made no answer. She came into the parlour, and on his asking her whether she would
come back she replied she was going into service. He then, so he says, threatened he would shoot
himself, and went on to show her the gun and brought it across his waist, when it somehow went
off and his wife fell down and he went out of the house. He told the jury that it was an accident,
that it was a pure accident; that whilst he was getting the gun from under his shoulder and was
drawing it across his breast it accidentally went off and he was doing nothing unlawful, nothing
wrong, and this was a pure accident. There was considerable controversy as to whether a letter in
which he set out his grievances was written before or after the above events. But when he was
arrested at 7.30 on the evening of the 10th and charged with having committed murder he said: "I
want to say nothing, except I done it, and they can do what they like with me. It was jealousy I
suppose. Her mother enticed her away from me. I done all I could to get her back. That's all."
The
learned
judge
in
summing-up
the
case
to
the
jury
said:"If you accept his evidence, you will have little doubt that she died in consequence of a gunshot
wound which was inflicted by a gun which he had taken to this house, and which was in his
hands, or in his possession, at the time that it exploded. If you come to the conclusion that she
died in consequence of injuries from the gun which he was carrying, you are put by the law of
this country into this position: The killing of a human being is homicide, however he may be
killed, and all homicide is presumed to be malicious and murder, unless the contrary appears
from circumstances of alleviation, excuse, or justification. 'In every charge of murder, the fact of
killing being first proved, all the circumstances of accident, necessity, or infirmity are to be
satisfactorily proved by the prisoner, unless they arise out of the evidence produced against him:
for the law will presume the fact to have been founded in malice until the contrary appeareth.'
That has been the law of this country for all time since we had law. Once it is shown to a jury
that somebody has died through the act of another, that is presumed to be murder, unless the
person who has been guilty of the act which causes the death can satisfy a jury that what
happened was something less, something which might be alleviated, something which might be
reduced to a charge of manslaughter, or was something which was accidental, or was something
which
could
be
justified."
At the end of his summing-up he added: "The Crown has got to satisfy you that this woman,
Violet Woolmington, died at the prisoner's hands. If they must satisfy you of that beyond any
reasonable doubt. If they satisfy you of that, then he has to show that there are circumstances to
be found in the evidence which has been given from the witness-box in this case which alleviate
the crime so that it is only manslaughter or which excuse the homicide altogether by showing
that
it
was
a
pure
accident."
In the argument before the Court of Criminal Appeal cases were cited by the learned counsel on
either side and textbooks of authority were referred to, but the learned judges contented
themselves with saying "there can be no question to start with that the learned judge laid down
the law applicable to a case of murder in the way in which it is to be found in the old
authorities." They repeated the learned judge's words and said: "No doubt there is ample
authority for that statement of the law." They then relied, as I have already mentioned, upon the
proviso to s. 4 of the Criminal Appeal Act, 1907, and dismissed the appeal.
It is true as stated by the Court of Appeal that there is apparent authority for the law as laid down
by the learned judge. But your Lordships' House has had the advantage of a prolonged and
exhaustive inquiry dealing with the matter in debate from the earliest times, an advantage which
was not shared by either of the Courts below. Indeed your Lordships were referred to legal
propositions dating as far back as the reign of King Canute (994-1035). But I do not think it is
necessary for the purpose of this opinion to go as far back as that. Rather would I invite your
Lordships to begin by considering the proposition of law which is contained in Foster's Crown
Law, written in 1762, and which appears to be the foundation for the law as laid down by the
learned judge in this case. It must be remembered that Sir Michael Foster, although a
distinguished judge, is for this purpose to be regarded as a text-book writer, for he did not lay
down the doctrine in any case before him, but in an article which is described as the
"Introduction to the Discourse of Homicide." In the folio edition, published at Oxford at the
Clarendon Press in 1762, at p. 255, he states: "In every charge of murder, the fact of killing being
first proved, all the circumstances of accident, necessity, or infirmity are to be satisfactorily
proved by the prisoner, unless they arise out of the evidence produced against him; for the law
presumeth the fact to have been founded in malice, until the contrary appeareth. And very right it
is, that the law should so presume. The defendant in this instance standeth upon just the same
foot that every other defendant doth: the matters tending to justify, excuse, or alleviate, must
appear
in
evidence
before
he
can
avail
himself
of
them."
Now the first part of this passage appears in nearly every text-book or abridgment which has
been since written. To come down to modern times, the passage appears in Stephen's Digest of
the Criminal Law 16; also in the well known treatise of Archbold, Criminal Pleading, Evidence
and Practice 4, which is the companion of lawyers who practise in the criminal courts. It also
appears almost textually in Russell on Crimes 5 and in the second edition of Halsbury's Laws of
England 15, which purports to state the law as on May 1, 1933, where it is said: "When it has
been proved that one person's death has been caused by another, there is a prima facie
presumption of law that the act of the person causing the death is murder, unless the contrary
appears from the evidence either for the prosecution or for the defence. The onus is upon such
person when accused to show that his act did not amount to murder." The authority for that
proposition is given as Foster, pp. 255, 290, and also the case of Rex v. Greenacre. 8 C. & P. 35
The question arises, Is that statement correct law? Is it correct to say, and does Sir Michael
Foster mean to lay down, that there may arise in the course of a criminal trial a situation at which
it is incumbent upon the accused to prove his innocence? To begin with, if that is what Sir
Michael Foster meant, there is no previous authority for his proposition, and I am confirmed in
this opinion by the fact that in all the text-books no earlier authority is cited for it. Before,
however, one considers the earlier criminal law several facts have to be remembered.
First, it was not till 1907 that the Court of Criminal Appeal was set up. It is perfectly true that
from time to time there have been famous occasions on which the Judges and Barons were called
together to give their opinion upon the law bearing on murder. Examples of this will be found; in
the year 1611, in the case of Mackalley 9 Co. Rep. 65b, all the Judges and Barons were moved to
give their opinion; in 1706, in the case of Reg. v. Mawgridge (1706) Kelyng, 119; 17 St. Tr. 57,
which case was argued before all the Judges and all of them except Lord Chief Justice Trevor
were of opinion that Mawgridge was guilty of murder; and in 1843 in the case of Reg. v.
M'Naughton (1843) 4 St. Tr. (N. S.) 847, where all the Judges gave answers to your Lordships'
House
upon
the
test
of
insanity.
M'Naughton's case (1843) 4 St. Tr. (N. S.) 847 stands by itself. It is the famous pronouncement
on the law bearing on the question of insanity in cases of murder. It is quite exceptional and has
nothing to do with the present circumstances. In M'Naughton'scase (1843) 4 St. Tr. (N. S.) 847
the onus is definitely and exceptionally placed upon the accused to establish such a defence. See
Rex v. Oliver Smith (1910) 6 Cr. App. R. 19, where it is stated that the only general rule that can
be laid down as to the evidence in such a case is that insanity, if relied upon as a defence, must
be established by the defendant. But it was added that all the judges had met and resolved that it
was not proper for the Crown to call evidence of insanity, but that any evidence in the possession
of the Crown should be placed at the disposal of the prisoner's counsel to be used by him if he
thought fit. See also Archbold, 29th Edition. 17, It is not necessary to refer to M'Naughton's case
(1843) 4 St. Tr. (N. S.) 847 again in this judgment, for it has nothing to do with it.
It is true that at a later period certain cases were reserved by the judges for the consideration of
the Court of Crown Cases Reserved, but many of the propositions with regard to criminal law are
contained either in the summing-up of the judges or in text-books of authority as distinguished
from
a
Court
sitting
in
banc.
The learned author of Stephen's Digest of the Criminal Law 18 has an interesting note on the
definition of murder and manslaughter. But his remarks are rather directed to the ingredients of
the crime than to the proof of it. None the less, the author does not hesitate to tread a path of very
robust criticism of the previous authorities. He speaks of the "intricacy, confusion and
uncertainty of this branch of the law." He refers to the definition of Coke (1552-1623) and says
"these passages, overloaded as Coke's manner is, with a quantity of loose, rambling gossip, form
the essence of his account of murder." He describes Coke's chapter on manslaughter as
"bewildering" and adds that Hale (1609-1676) treats manslaughter in a manner so meagre an yet
so confused that no opinion of it can be obtained except by reading through chapters 38 to 40 and
trying to make sense of them, and concludes by saying (p. 466) that Sir Michael Foster "to some
extent mitigates the barbarous rule laid down by Coke as to unintentional personal violence."
Next it must be remembered that prisoners were not entitled to be represented by counsel, except
in cases of felony, where counsel might argue the law on their behalf.
Thirdly, it must not be forgotten that the prisoner himself was not allowed to give evidence
19
before
the
Act
passed
in
1898.
Bearing these considerations in mind, I now turn to some of the cases cited to us. I doubt whether
in any of the early ones the question of the burden of proof was considered. Rather they were
concerned with the ingredients of the crime of murder. One of the first difficulties was to settle
the meaning of express and implied malice. It was not till 1825 that Bayley J, in Bromage v.
Prosser (1825) 4 B. & C. 247, gave his famous definition of malice as meaning a wrongful act,
done intentionally without just cause or excuse. The older cases were rather concerned to give
examples of what might be malice. This was so in Mackalley's case. 9 Co. Rep. 65 b the prisoner
was there accused of murdering a serjeant of London. The Courts were already considering cases
of express or implied malice, and the passage in Coke appears simply to mean that if a man does
acts calculated to kill, and actually does kill, that is evidence of malice or intent; in other words,
evidence of one of the ingredients of murder, but it does not seem to be at all concerned with
onus of proof or to support the statement of Sir Michael Foster on that point.
One of the most famous of the earlier treatises on criminal law was the History of the Pleas of
the Crown by Sir Matthew Hale. That celebrated judge died on Christmas Day, 1675. It was
known that he had left a treatise on the subject, and upon November 29, 1680, it was ordered by
the House of Commons that the executors of Sir Matthew Hale be desired to print the manuscript
relating to Crown Law and a Committee be appointed to take care of the printing thereof. It is
not said that anything appears in Hale suggesting that the burden of proving his innocence lay on
the prisoner. Looking at the edition of 1800 20 we find him again concerned with what malice is.
It is headed "Concerning murder by malice implied presumptive, or malice in law," and
Mackalley's
case
9
Co.
Rep.
65
b
is
duly
cited.
As appears from Foster's Pleas of the Crown, Sir Michael Foster was familiar with Hale's treatise
(see his preface), and although in the course of his book he makes reference to Hale, he gives no
authority for the proposition which is under discussion. It cannot be doubted that at that time in
English Courts of justice the law of evidence was in a very fluid condition. Indeed in some civil
cases it differed on different circuits. See Weeks v. Sparke (1813) 1 M. & S. 679, 687, 688 and
also the note xx. in Stephen's Digest of the Law of Evidence. 21 It was only later that the Courts
began to discuss such things as presumption and onus. In Wigmore on Evidence 22, a reference is
made to the judgment of Weaver J. in the case of The State v. Brady (1902) Ia. 91 N. W. 801.
This was cited in the case of Rex v. Stoddart 2 Cr. App. R. 217, 233:"The use of the terms 'presumption of guilt' and 'prima facie evidence of guilt' with reference to
the possession of stolen goods has perhaps been too long indulged in by Courts and text-writers
to be condemned; but we cannot resist the conclusion that, when so employed, these expressions
are unfortunate, and often misleading. .... 'Presumptions' of guilt and 'prima facie' cases of guilt
in the trial of a party charged with crime mean no more than that from the proof of certain facts
the jury will be warranted in convicting the accused of the offence with which he is charged."
We were referred to the case of Rex v. Legg(6) Kelyng, 27, where it is said that at the Newgate
Session in 1674 "one John Legg, being indicted for the murder of Mr. Robert Wise, it was upon
the evidence agreed that if one man kill another, and no sudden quarrel appeareth, this is
murder." Mackalley'scase 9 Co. Rep. 65 b is quoted as an authority and the report goes on: "and
it lieth upon the party indicted to prove the sudden quarrel." With regard to Kelyng's Reports, the
critics have greatly differed. Sir John Kelyng was Chief Justice of the King's Bench. He died in
1671 and whatever opinion may be held about him as a judge, upon which see Foss's
Biographical Dictionary of The Judges of England 23, the critics have differed greatly upon the
value of his Reports. Lord Campbell in his Life of Kelynge, Lives of the Chief Justices 24, says
"He compiled a folio volume of decisions in criminal cases, which are of no value whatever."
But, on the other hand, there are others who regard the book as of high authority: see Wallace on
25
The
Reporters
.
The report of Legg's case Kelyng, 27 is meagre and unsatisfactory and cannot, I think, be held to
mean that unless the prisoner prove the sudden quarrel, he must be convicted of murder. The
word "onus" is used indifferently throughout the books, sometimes meaning the next move or
next step in the process of proving or sometimes the conclusion of the whole matter.
Mawgridge's case Kelyng, 119; 17 St. Tr. 57, already referred to, was cited to us from Kelyng's
Reports, but it was not reported by Kelyng for the simple reason that it was not tried till 1706.
Campbell, in the Lives of the Chief Justices 26, says it was reported by Holt and makes caustic
comments on Holt's English composition. It was added by Holt to his Edition of Kelyng's
Reports and is described as a case of "great expectation" and gives the history of murder trials in
English Courts from the earliest times. The case, however, is no authority for saying that the
prisoner at any time is called upon to prove his innocence; quite the contrary. It is another of
those cases which deal with malice and with what is such provocation as will make the act of
killing
to
be
manslaughter
only.
In Hawkins' Pleas of the Crown 27: "It is also agreed, that no one can excuse the killing another,
by setting forth in a special plea, that he did it by misadventure, or se defendendo, but that he
must plead 'not guilty,' and give the special matter in evidence." This points to the fact that the
verdict must be given not on any special pleading given by the prisoner but upon and as the
result of the whole of the case, and it nowhere suggests that the burden of proof either at the
beginning or at the end of a case is not on the prosecution.
The case of Rex v. Greenacre 8 C. & P. 35, 42 was certainly heard by a very distinguished judge,
Tindal, C.J. But it is to be observed that the dictum relied upon by the prosecution in this case namely: "that where it appears that one person's death has been occasioned by the hand of
another, it behoves that other to show from evidence, or by inference from the circumstances of
the case, that the offence is of a mitigated character, and does not amount to the crime of
murder," was contained in the summing-up of the learned judge to the jury. It is the passage in
Sir Michael Foster and this summing-up which are usually relied on as the authority for the
proposition that at some particular time of a criminal case the burden of proof lies on the prisoner
to prove his innocence. The presumption of innocence in a criminal case is strong: see Taylor On
Evidence 28, and it is doubtful whether either of these passages means any such thing. Rather do I
think they simply refer to stages in the trial of a case. All that is meant is that if it is proved that
the conscious act of the prisoner killed a man and nothing else appears in the case, there is
evidence upon which the jury may, not must, find him guilty of murder. It is difficult to conceive
so bare and meagre a case, but that does not mean that the onus is not still on the prosecution.
If at any period of a trial it was permissible for the judge to rule that the prosecution had
established its case and that the onus was shifted on the prisoner to prove that he was not guilty
and that unless he discharged that onus the prosecution was entitled to succeed, it would be
enabling the judge in such a case to say that the jury must in law find the prisoner guilty and so
make the judge decide the case and not the jury, which is not the common law. It would be an
entirely different case from those exceptional instances of special verdicts where a judge asks the
jury to find certain facts and directs them that on such facts the prosecution is entitled to succeed.
Indeed, a consideration of such special verdicts shows that it is not till the end of the evidence
that a verdict can properly be found and that at the end of the evidence it is not for the prisoner to
establish his innocence, but for the prosecution to establish his guilt. Just as there is evidence on
behalf of the prosecution so there may be evidence on behalf of the prisoner which may cause a
doubt as to his guilt. In either case, he is entitled to the benefit of the doubt. But while the
prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to
prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to
satisfy
the
jury
of
his
innocence.
This is the real result of the perplexing case of Rex v. Abramovitch (1914) 11 Cr. App. R. 45,
which lays down the same proposition, although perhaps in somewhat involved language. Juries
are always told that, if conviction there is to be, the prosecution must prove the case beyond
reasonable doubt. This statement cannot mean that in order to be acquitted the prisoner must
"satisfy" the jury. This is the law as laid down in the Court of Criminal Appeal in Rex v. Davies
29 Times L. R. 350; 8 Cr. App. R. 211, the headnote of which correctly states that where intent is
an ingredient of a crime there is no onus on the defendant to prove that the act alleged was
accidental. Throughout the web of the English Criminal Law one golden thread is always to be
seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have
already said as to the defence of insanity and subject also to any statutory exception. If, at the
end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by
either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a
malicious intention, the prosecution has not made out the case and the prisoner is entitled to an
acquittal. No matter what the charge or where the trial, the principle that the prosecution must
prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it
down can be entertained. When dealing with a murder case the Crown must prove (a) death as
the result of a voluntary act of the accused and (b) malice of the accused. It may prove malice
either expressly or by implication. For malice may be implied where death occurs as the result of
a voluntary act of the accused which is (i.) intentional and (ii.) unprovoked. When evidence of
death and malice has been given (this is a question for the jury) the accused is entitled to show,
by evidence or by examination of the circumstances adduced by the Crown that the act on his
part which caused death was either unintentional or provoked. If the jury are either satisfied with
his explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if
his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to
be acquitted. It is not the law of England to say, as was said in the summing-up in the present
case: "if the Crown satisfy you that this woman died at the prisoner's hands then he has to show
that there are circumstances to be found in the evidence which has been given from the witnessbox in this case which alleviate the crime so that it is only manslaughter or which excuse the
homicide altogether by showing it was a pure accident." If the proposition laid down by Sir
Michael Foster 29 or in the summing-up in Rex v. Greenacre 8 C. & P. 35, 42 means this, those
authorities
are
wrong.
We were then asked to follow the Court of Criminal Appeal and to apply the proviso of s. 4 of
the Criminal Appeal Act, 1907, which says: "the Court may, notwithstanding that they are of
opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss
the appeal if they consider that no substantial miscarriage of justice has actually occurred." There
is no doubt that there is ample jurisdiction to apply that proviso in a case of murder. The Act
makes no distinction between a capital case and any other case, but we think it impossible to
apply it in the present case. We cannot say that if the jury had been properly directed they would
have
inevitably
come
to
the
same
conclusion.
In the result we decline to apply the proviso and, as already stated, we order that the appeal
should
be
allowed
and
the
conviction
quashed.
My noble and learned friend Lord Atkin, who has to preside at the Privy Council to-day, asks me
to say that he concurs in the opinion which I have delivered.
LORD
HEWART
LORD
TOMLIN.My
C.J.My
Lords,
Lords,
I
concur.
also
concur.
LORD WRIGHT.My Lords, I also concur.

Order of the Court of Criminal Appeal
reversed, and conviction quashed: Further
ordered that the cause be remitted back to the
Court of Criminal Appeal to do therein as shall
be just and consistent with this judgment.
Lords' Journals, April 5, 1935.
Solicitors for appellant: C. Butcher & Simon Burns, for Clarke, Willmott & Clarke, Taunton.
For the respondent: The Director of Public Prosecutions.
1
Foster's Crown Law (1762), p. 255.

(1762) Clarendon Press, p. 255.
3
Book IV., c. 14.
4
29th Ed. (1934), p. 873.
5
8th Ed. (1923), Vol. 1, p. 615.
6
15th Ed. (1928), p. 300.
7
Book IV., Ch. 14, passim.
8
Ibid; p. 188.
9
Ibid; p. 191.
10
Coke, 3 Inst. 47.
11
Crown Law (1762), p. 255.
12
Pleas of the Crown (1803), p. 224.
13
Book IV., c. 14, pp. 200, 201.
14
29th Ed. (1934), p. 873.
15
2nd Ed. (1933), Vol. 9, p. 426.
16
7th Ed. (1926), p. 235.
17
(1934) 18, 874.
18
7th Ed. (1926), pp. 461, 462.
19
The Criminal Evidence Act, 1898 (61 & 62 Vict. c. 36).
20
Chapter 37, Vol. 1, p. 454.
21
11th Ed. (1930), p. 182.
22
Vol. 4, section 2513, note on page 3562.
23
(1870), p. 381.
24
(1849) Vol. 1, p. 511.
25
London (1882), p. 327. [F. F. Heard, the editor of this reprint, made additions and alterations in
Wallace's text without notice to the reader. Wallace himself (3rd ed. Philadelphia 1855, p. 209)
2
dismissed Kelyng with a very short paragraph. .... F.P.]

26
Vol. 2, p. 176.
27
8th Ed. (Curwood), 1824, Vol. 1, p. 88, s. 25.
28
11th Ed. (1920), ss. 113, 114, Vol. 1, pp. 107, 108; 12th Ed. (1931), Vol. 1, pp. 107, 108.
29
Ante, p. 474.
ACT OF GOD
Ryde v Bushell and another
[1967] 1 EA 817 (CAN)
Division:
Court of Appeal at Nairobi
Date of judgment:
17 November 1967
Case Number: 15/1967 (183)
Before:
Sir Charles Newbold P, Duffus and Law JJA
Sourced by: LawAfrica
Appeal from: The High Court of Kenya Chanan Singh, J.
[1] Act of God Requirements for successful plea of Whether absolves party from liability for
damage suffered following performance of part of an obligation Burden of proof Heavy rain.
[2] Damages Assessment Breach of covenant to plant coffee Damages to be assessed at
time of the breach.
[3] Landlord and Tenant Breach of covenant to plant coffee Measure of damages.
Editors Summary
The plaintiffs/respondents leased a farm to the defendant/appellant in 1960 for a term of five
years. The lease contained covenants by the defendant to plant a certain area with coffee and to
manage the farm in a husbandlike manner. After the end of the lease the plaintiffs sued the
defendant for (inter alia) damages for breach of these covenants in not planting the required area
with coffee. The defendant admitted some breach, but disputed the extent of the breach and also
the quantum of the damages. The evidence given at the trial was unclear, but the trial judge
found that the defendant had failed to plant 23 3/4 acres and gave judgment for K. Shs. 30,000/(i.e. at a rate of some K. Shs. 1,260/- per acre) reducing the amount because he was unsure of
what permanent damage had
Page 818 of [1967] 1 EA 817 (CAN)
been done. One of the pleas raised by the defendant was that as to some of the area he had had to
replant it because of what he described in evidence as a deluge at the end of 1960 which swept
away part of his original planting, and that this deluge was an Act of God which subsequent to
performance destroyed his work; but the defendant called no evidence about the normal rainfall
in the district or about the normal precautions to be taken.
Held
(i)
the plea of Act of God is available to relieve a defendant from liability for damage
suffered following the performance of part of his obligation, and not merely to absolve a person
from the performance of an obligation;
(ii)
nothing can be said to be an Act of God unless it is proved by the person setting
up the plea to be due exclusively to natural causes of so extraordinary a nature that it could not
reasonably have been foreseen and the results of which occurrence could not have been avoided
by any action which should reasonably have been taken by the person who seeks to avoid
liability by reason of the occurrence;
(iii)
the evidence was insufficient to support the plea in this case;
(iv)
on the issue of what acreage was actually planted and maintained in coffee the
plaintiffs on whom the onus lay and failed to prove the extent of the default;
(v)
damages are to be assessed at the time of the breach and the plaintiffs should
recover the difference in value of the land at that time.
Appeal and cross-appeal allowed in part. Damages increased in amount. Appellant to have one
quarter of his costs of the appeal. Respondents to have costs of cross-appeal.
No cases referred to in judgment.
The following judgments were read:
Judgment
Sir Charles Newbold P: In May 1960 an indenture of lease was executed whereby the two
plaintiffs, as proprietors, leased to the defendant a farm for five years from April 1, 1960. Under
cl. 2 (12) of the lease the defendant undertook:
To plant during each year of the term hereby created an area consisting of not less than ten (10)
acres with young coffee . . . Provided that the maximum area to be planted shall not exceed fifty
acres, which fifty acres shall include any area already planted with coffee . . .
The lease also included covenants by the defendant
2(6) To farm, cultivate, manure and manage the whole of the demised premises in a
good and husbandlike manner according to the most approved methods of husbandry practised in
the district . . .
and
2(15) To yield up the premises at the expiration of the tenancy in such a state of repair,
cultivation and management as shall be in compliance of the tenants covenants hereinbefore
contained.
On the termination of the tenancy a dispute arose between the plaintiffs and the defendant
relating to the performance by the defendant of his covenants under the lease and eventually the
plaintiffs sued the defendant. The plaint included a number of claims but the only claim which is
relevant to this appeal is the claim by the plaintiffs to the effect that the defendant failed to plant
and maintain coffee in accordance with the requirements of the defendants covenants.
Page 819 of [1967] 1 EA 817 (CAN)
The defendant did not dispute some breach of his covenants, but disputed the extent of the
breach and the amount of damages which he would have to pay for any breach. As the case, so
far as the plaintiffs were concerned, to a large extent turned on the area under coffee cultivation
at the commencement of the lease and the area under coffee cultivation on the termination of the
lease, I should have thought it would have been extremely simple for either the plaintiffs or the
defendant or both to have brought evidence which would have clearly established those simple
facts. I should, however, have been wrong in so thinking. There is a great paucity of evidence on
those two simple facts and such evidence as does exist is most confusing. Since the case for the
defendant rests to a large extent upon, to quote from para. 16 of the defence, extensive flooding
from exceptional rains beyond the control of the defendant, which rains appear from the
defendants evidence to have fallen upon a particular day, I should also have thought that it
would have been a simple matter for clear evidence on this to have been called by the defendant.
I should, however, have been equally wrong in so thinking.
In essence the plaintiffs claim that the defendant had failed to plant and maintain with coffee 35
1/2 acres in accordance with the terms of the lease; and they claim damages for that failure,
which damages amounted to 110 an acre, giving a total of 3,905. In essence the defendant
admits a breach of his obligation in failing to plant 6 3/4 acres and he submits that the damages
resulting therefrom were 450. The judge, in an admirably clear judgment, held that the
defendant had failed to plant 23 3/4 acres and that the damage which the plaintiffs had suffered
therefrom amounted to 1,500; and on this aspect of the case he gave judgment for the plaintiffs
for 1,500. From that judgment the defendant has appealed and the plaintiffs have crossappealed.
With effect from January 1, 1964, by a Government Order, any further planting of new areas
with coffee was prohibited. It was agreed therefore at the trial and before us that the defendant
could not be required to comply with his obligation to plant after that date. This left a period of 3
3/4 years in which the defendants obligation to plant existed and the judge, on the assumption
that the area under coffee cultivation at the commencement of the lease was eleven acres, held
that during that period the defendant should have planted a minimum total of 36 3/4 acres.
Counsel for the defendant accepted that this figure was correct; and counsel for the plaintiffs,
although he submitted that the figure should have been slightly more, did not seriously dispute it.
For reasons I shall subsequently give I consider that the area under coffee at the beginning of the
lease was only about five acres, with the result that the minimum acreage which the defendant
should have planted is 37 1/2 acres. As, however, the difference is small and the acreage in
question subject to considerable uncertainty I see no reason to interfere with the judges
conclusion that the amount of acreage which the defendant should have planted and maintained
was 36 3/4 acres. As I have already said, there is considerable uncertainty as to what acreage was
under coffee at the beginning of the lease and what acreage was under coffee at the end of the
lease. Inasmuch as it was for the plaintiffs to prove any breach of the covenants on the part of the
defendant the plaintiffs have no ground of complaint if any uncertainty is resolved in favour of
the defendant. There was some evidence for the plaintiffs that the only new area in coffee after
the termination of the lease amounted to about three acres. This evidence was most vague and the
judge does not appear to have accepted it, as in the main he based his determination of the
acreage planted on the evidence of the defendant. That evidence related more to the number of
trees planted than to the acreage planted; but by using an agreed figure of trees per acre at the
particular spacing adopted it is possible to translate the number of trees into acres. Doing this, the
evidence of the defendant was that he planted thirteen acres in 1960, eight acres in 1962,
Page 820 of [1967] 1 EA 817 (CAN)
and nine acres in 1963, making a total of thirty acres against an obligation to plant 36 3/4 acres,
leaving a failure to plant 6 3/4 acres. These figures, however, do not correspond with other parts
of his evidence where he stated that by 1962 he had planted eighteen acres of new coffee and that
by the end of 1963 there was a total of twenty-four acres under coffee, including coffee planted
before the lease. The coffee planted before the lease has been variously stated on behalf of the
plaintiffs to be eleven acres, seven acres and a little more than five acres.
The judge, in arriving at his conclusion that the defendant had planted only thirteen acres, did not
credit the defendant with the eight acres planted in 1962, because they were planted in the
thirteen acres already planted in 1960, and, apparently, because the defendant could not escape
liability by reason of an act of God, and he appears to have overlooked the nine acres planted in
1963. The defendant in his appeal claims that the judge was wrong in refusing to give credit for
the 1962 planting and in overlooking the 1963 planting. I agree that the judge seems to have
overlooked the 1963 planting and that there will have to be some adjustment of the acreage
which the judge found the defendant had failed to plant in accordance with his obligations. As
regards the planting of eight acres in 1962 in the thirteen acres planted in 1960, the defendant
said this was caused by the fact that at the end of 1960 there was a deluge 3.47 inches of rain in
forty minutes which washed away ninety per cent. of the trees planted in the thirteen acres.
When he planted eight acres in 1962 he did so in the thirteen acres, most of the plants in which
had been washed away, and he claims to be entitled to credit in respect of both the thirteen acres
and the eight acres. In effect this is a plea that he had performed his obligation to plant and that
subsequent to performance his work had been destroyed by an act of God and that the loss
should not fall on his shoulders. This plea is not strictly in accord with the defence which refers
merely to exceptional rains beyond the control of the defendant. The case, however, has
always been conducted on the basis that the defendant was seeking release from any further
performance of his obligation by reason of an act of God and I think it right that this court should
decide the matter on that basis.
The plea of an act of God is normally set up to absolve a person from the performance of an
obligation. In this case it is set up to relieve the defendant from liability for damage suffered
following the performance of part of his obligation. I see no reason why the plea should not be
available to the defendant for that purpose as I am unable, in this respect, to draw a distinction
between a failure to perform an obligation and a failure to produce the results of the performance
of an obligation. If an act of God absolves in the one case then it should absolve in the other. Nor
to my mind does it make any difference whether the obligation is imposed by law, in which case
according to the old authorities in England performance is excused by an act of God, or is
imposed by contract, in which case according to those authorities performance was not excused
by an act of God, unless it is manifest from the clear words of the contract that the obligation is
absolute. But before the plea can succeed it must be established that it was an act of God which
prevented performance or which destroyed the results of performance. Nothing can be said to be
an act of God unless it is an occurrence due exclusively to natural causes of so extraordinary a
nature that it could not reasonably have been foreseen and the results of which occurrence could
not have been avoided by any action which should reasonably have been taken by the person
who seeks to avoid liability by reason of the occurrence. It is for the person setting up the plea of
act of God to prove the various facts which constitute an act of God. In this case what has been
proved is a heavy rainfall which washed away young coffee seedlings. The defendant described
it as a deluge resultant from a fall of nearly 3 1/2 inches in forty minutes. There is absolutely
no other evidence from anyone as to this rainfall, as
Page 821 of [1967] 1 EA 817 (CAN)
to its extraordinary nature, or as to what precautions, if any, should reasonably be taken to guard
newly planted coffee seedlings from erosion caused by heavy rain. The judge merely described
the coffee as being washed away by heavy rains. He made no finding as to its extraordinary
nature or as to its intensity being such that no reasonable precaution taken by the defendant
would have been of any avail. The judge, parenthetically and without giving any reason, seems
to accept that the damage was caused by an act of God. The plaintiffs challenge this finding in
their cross-appeal, submitting that there is no evidence of any standard in the area in question
which could determine what would be a rainfall of an extraordinary nature, nor any evidence that
any reasonable precaution against the results of heavy rain would have been unavailing. The
defendant asks this court, which is a court of an agricultural country, to take judicial notice of the
normal intensity of rainfall and of the erosive effect of heavy rain. I am prepared to take judicial
notice in a broad way of both these facts; but I cannot do so to the extent of coming to the
conclusion, unaided by any evidence, that the rainfall in question in the area in question was of
so extraordinary a nature that it could not reasonably have been foreseen and that no precautions
which the defendant could reasonably have taken would have prevented or reduced the effect of
the rain. Thus I do not consider that the defendant has proved that he is excused from his
obligation to yield up on the expiry of the lease thirteen acres of planted coffee by reason of an
act of God. As regards any loss of coffee seedlings due to normal circumstances, the obligation
of the defendant under cll. 2 (6) and 2 (15) would not enable him to absolve himself from
liability merely by giving evidence that he had planted a certain acreage.
This still leaves for determination how many acres were planted and maintained in coffee on the
expiry of the lease. It is for the plaintiffs to prove the extent of the default. They have not done
so. Like the judge, I prefer to accept the defendants evidence: but even this is confusing.
Acreage determined by the number of trees will not suffice. While the number of coffee
seedlings planted is known, due to the washaway in 1960 and the evidence of normal misses, the
number in existence on the expiry of the lease is completely unknown. I consider that the best
evidence of the acreage under coffee on the expiry of the lease was a definite statement from the
defendant that on January 1, 1964, he had twenty-four acres, including the original coffee, in a
cleaned and pruned state that is, a state which would accord with his obligations under the
lease. The most cogent evidence of the original area under coffee is that given by Col. Bushell,
one of the plaintiffs, who said he originally thought the acreage to be more but it turned out to be
a little over five acres. This leaves nineteen acres planted and maintained by the defendant in
accordance with his obligations, with a resultant default of 17 3/4 acres. As the judge held that
the default amounted to 23 3/4 acres, to this extent this appeal is successful and on this aspect the
cross-appeal fails. The appeal is also successful insofar as it relates to the hypothetical effect of
an act of God, but it fails and the cross-appeal succeeds on the question as to whether there was
an act of God.
The next issue arises from the cross-appeal and it relates to the amount of damage suffered by the
plaintiffs in respect of each acre in which the defendant is in default of his obligations under the
lease. The judge accepted that the value of land in the area in question planted with coffee was
120 an acre, while the value of such land not so planted was 10 an acre. These value were the
values at the date the lease expired and the defendants default occurred. Accordingly, it would
seem that the proper measure of damages would be 110 for every acre by which the defendant
was in default. The judge, however, reduced that figure to about 63 an acre because he was not
sure that the permanent damage suffered by the plaintiffs was 110 an acre, as the Government
Page 822 of [1967] 1 EA 817 (CAN)
may in the future have permitted coffee to be planted. With respect to the judge this was a
completely wrong approach. Damages are to be assessed as at the time of the breach. At that time
the value of the land was 110 an acre less than it would have been if there had been no default;
and that is the amount the plaintiffs are entitled to recover. This fact is easily shown by what
would have happened if the plaintiffs had tried to sell the land: they would have got 10 an acre
instead of 120 an acre. In other words, as a result of the defendants default there was returned
to the plaintiffs land which was 110 an acre less valuable than it should have been; and that
position is not affected by any hypothetical circumstance which may or may not occur in the
future. In my view the proper damages to be awarded were 110 in respect of each acre in
default. The default of 17 3/4 acres multiplied by 110 gives in round figures 1,950; and I
consider this to be the proper amount of the damage suffered by the plaintiffs in respect of the
claim the subject of this appeal. Accordingly the cross-appeal succeeds in this respect.
I have found great difficulty in arriving at the proper order in relation to costs. The appeal has
been partly successful and partly unsuccessful; but no benefit resulted to the appellant by reason
of the success of the cross-appeal. In the result I consider that the order of this court should be
that the judgment and decree of the High Court be varied by allowing damages for the coffee in
the sum of Shs. 39,000/- and by substituting for the figure of Shs. 32,592/- a figure of Shs.
41,592/- with a consequential variation in the figure of the interest thereon. I would allow the
appellant one quarter of his costs on the appeal and I would allow the respondent the costs of the
cross-appeal. As the other members of the court agree it is so ordered.
Duffus JA: I agree with the judgment of the learned President.
Law JA: I have read in draft the judgment prepared by the learned President. I agree with it, and
with the order proposed. I would only add that I am surprised that in a suit which included a
claim for damages for breach of a covenant to plant a specified acreage of coffee, the evidence
should have been so vague and imprecise. If there is any matter which is capable of accurate
assessment, it is surely the acreage of a standing crop at any particular moment, in this case at the
commencement of the lease and at its termination. The burden of proof in this respect being on
the plaintiffs, they cannot complain if the trial judge preferred to base his calculations on the
figures put forward by the defendant.
Judgment and decree of High Court varied accordingly.
For the appellant:
J. A. Mackie-Robertson, Q.C. and B. R. Paterson-Todd, Nakuru
For the respondents:
Daly & Figgis, Nairobi
P. J. S. Hewett
APPEALS
Oliver John Shaw v R
[1963] 1 EA 400 (HCU)
Division:
High Court of Uganda at Kampala
Date of judgment:
12 August 1963
Case Number: 300/1963
Before:
Udo Udoma CJ
[1] Street traffic Driving under the influence of drink and driving dangerously appeal
Misdirection on fact alleged Onus on appellant to show that findings unreasonable
Misdirection Traffic Ordinance, 1951, s. 41, s. 43 (U.) Road Traffic Act, 1930, s. 11 (1) and s.
49 (b) (U.K.).
Editors Summary
The appellant was convicted on two counts of driving under the influence of drink and in a
manner dangerous to the public. The appellant was fined Shs. 2,000/- or six months
imprisonment and disqualified from holding a driving permit for four years in respect of the first
count and on the second count he was sentenced to a fine of Shs. 500/- or three months
imprisonment. The magistrate in his judgment carefully and thoroughly examined the evidence,
came to the conclusion that the witnesses for the prosecution were truthful and reliable and
accepted their evidence. On appeal against conviction and sentence it was argued for the
appellant that the magistrate had misdirected himself on the facts and as to the onus of proof. For
the Crown it was submitted that the appellant must satisfy the court that the findings of the
magistrate were unreasonable and could not be supported by the evidence and that there had
been no misdirection upon the burden of proof.
Held
(i)
on appeal against conviction on grounds of misdirection as to the facts, the onus is
on the appellant to show that the findings are unreasonable and cannot be supported having
regard to the evidence.
(ii)
the magistrates findings that the appellant was under the influence of drink and
unfit to drive were not unreasonable and were amply supported by the evidence.
(iii)
on the evidence there was no misdirection in law because the passage in the
judgment dealing with the burden of proof of which complaint was made referred to the onus of
proof in regard to the defence of automatism and not to the burden of proof in a criminal case
generally.
(iv)
it was impossible to say that in imposing the sentence he did the magistrate had
exercised his discretion perversely and, accordingly, the appeal against sentence could not
succeed.
Appeal dismissed.
Cases referred to in judgment:
(1) R. v. Mary Broadhurst and Others, 13 Cr. App. R. 125.
(2) Hill v. Baxter, [1958] 1 All E.R. 193.
(3) R. v. Evans, [1962] 3 All E.R. 1086.
(4) Chapman v. O Hagan, [1949] 2 All E.R. 690.
Judgment
Udo Udoma CJ: The appellant in this appeal was charged with two counts of:
(i)
Driving a motor vehicle when under the influence of drink contrary to s. 41 of the
Traffic Ordinance, 1951; and
Page 401 of [1963] 1 EA 400 (HCU)
(ii)
Driving in a manner dangerous to the public contrary to s. 43 of the Traffic
Ordinance, 1951.
He was tried and convicted by the resident magistrate in the district court of Mengo. He was
sentenced to a fine of Shs. 2,000/- or 6 months imprisonment in respect to the 1st count and
disqualified from holding a driving permit for 4 years. On the 2nd count he was sentenced to a
fine of Shs. 500/- or 3 months imprisonment. He was allowed 14 days within which to pay both
fines. He now appeals against the conviction and sentence and the order of disqualification.
There are six grounds of appeal as follows:
(1)
The learned magistrate erred in accepting the evidence of the witness Hans
Thomas that appellant had no injury before getting out of his car at the corner of Port Bell Road
and in failing to hold that the said witness merely failed to observe the injury
(2)
The learned magistrate erred in believing that the injuries received by appellant
would have been caused in falling out of the car in the manner stated by Hans Thomas and in
failing to hold that these said injuries were more consistent with having been received prior to
the time when appellant was observed by Hans Thomas.
(3)
The learned magistrate erred in holding that appellant admitted that he did not
bother to find out anything about the facts until he knew he was to be prosecuted, in the absence
of any evidence to that effect.
(4)
The learned magistrate erred in law in holding that for the defence to succeed it
was necessary for appellant to establish a probability that there may have been concussion, and
in basing his decision to convict upon this erroneous view of the law.
(5)
The learned magistrate should, on the evidence, have held that accused might
have been suffering from the effects of concussion and that his actions were affected thereby and
may not have been due to consumption of alcohol.
(6)
In any event the sentences and in particular a suspension of appellants driving
licence for a period of 4 years was excessive, in view of appellant having driven without any
previous offence for 27 years, and the exceptional circumstances relating to appellants state of
health and his ignorance of the possible results of drugs prescribed for him.
Before dealing with these grounds of appeal it is convenient to summarise the evidence as was
presented before the learned magistrate. The case before the magistrate was that on Saturday,
February 16, 1963, at about 1 p.m. the appellant went into the International Bar with his two
dogs and there had a few drinks. Then at about 4 p.m. while one Hans Thomas (PW. 2) was
driving his car along Acacia Avenue downhill towards the Golf Course Club, he saw a car a
Hillman Minx, which was then being driven by the appellant. The car was being driven in a
zigzag manner, that is to say, it was swerving from one side of the road to the other thereby
creating confusion.
Hans Thomas (PW. 2) who felt confused by the car zigzagging along the road in that manner,
decided to follow it, and did so. At the bottom of the hill he noticed that the car was being driven
along the right-hand side of the road as if about to turn into the Golf Club. Hans Thomas (PW. 2)
then tried to overtake it on the left-hand side of the road. Suddenly the car swerved to the lefthand side of the road, and it was therefore necessary for Hans Thomas to apply his brakes, which
he did with great violence in order to avoid collision with the appellants car. Whereupon the
appellant then drove his car uphill towards the junction of Acacia Avenue and Kitante Road. He
was followed by Hans
Page 402 of [1963] 1 EA 400 (HCU)
Thomas (PW. 2). Before the junction of Acacia Avenue and Kitante Road the appellants car
stopped. It then rolled backwards for about 10 yards whereby its two rear wheels mounted the
pavement, and the car then swerved at right angles into the road. Thereafter it turned into Kitante
Road. Hans Thomas (PW. 2) still continued to follow the appellant as he was convinced that
there was something wrong with the appellants car, which then continued in a zigzag manner
along Kitante Road, hitting the kerb of the road several times on the left-hand side.
With increased speed the appellants car took the long bend by the slope before the junction and
passed the roundabout uphill to the Police Station. Near to the Police Station both wheels of the
car mounted the pavement, the nearside wheels of the car travelling on the pavement for about
15 yards and then back on to the road, and was driven downhill at such increased speed of about
45 m.p.h. that it narrowly missed colliding with some cyclists who were then on the road.
The appellant then drove on towards the Port Bell Road junction. As he was about to turn right
into Port Bell Road at the junction, he overshot the turning and hit the kerb on the right-hand side
of Jinja Road and stopped. The appellant then tried to change his gear into reverse and to proceed
on the journey but was unable to do so. Thereupon Hans Thomas, who was still following behind
the appellants car, stopped and parked his car to the left side of the road, alighted therefrom and
walked up to the appellants car. He attempted to open the left-hand side front door of the
appellants car but discovered that it was locked. The appellant undid the locking device and
Hans Thomas (PW. 2) opened the door while the appellant looked on. The appellant was then
sitting on the drivers seat. Hans Thomas removed the ignition key which was then in the ignition
lock and took possession of it. He went away with the key back to his car. He stood by his own
car.
The appellant crawled over the seat of his car on the left side and, in trying to get out, fell out of
the car on to the ground on his hands and feet. He sustained injuries on his forehead. He had a
small cut. He got up eventually after some time and walked over to Hans Thomas (PW. 2). He
spoke to him. He told him that he had stolen his keys. Hans Thomas (PW. 2) made no reply as he
felt it useless to do so since he was convinced the appellant was drunk. He then noticed that the
appellant was sweating. His eyes were deep, and his eyelids half closed. The appellant was
bleeding profusely from a cut over his left eye.
Just at that time another car which was driven by an Asian arrived at the scene. It stopped there;
but when requested by Hans Thomas (PW. 2) to go to the police the driver of that car made no
effort to do so. Then a police patrol car with an inspector of police on board arrived, and Hans
Thomas (PW. 2) handed over the appellants ignition key to the inspector of police. The appellant
was thereupon arrested and driven away in the police car to the Jinja Road Police Station. There
it was observed that the appellant smelt strongly of drink. His eyes were red and his eyelids
heavy. His tongue was also heavy. When interrogated the appellant could not pronounce his
name properly. He said that somebody had banged into him, but could not say where. He denied
having had any drink.
On being tested the appellant could not stand properly. He swayed from side to side and had to
hold on to a table in order to support himself. When told that he was suspected of being drunk
and that he should be medically examined, the appellant should: , I am not accepting any kind
of examination. Having refused to be medically examined, he complained that he was
unlawfully arrested, and that he should be allowed to go. From time to time the appellant fell
asleep on the table at the police station, and on waking up, would shout, who is in charge of this
station?
Page 403 of [1963] 1 EA 400 (HCU)
In his defence the appellant who described himself as a slow, regular moderate drinker, gave
evidence on oath. He could only recollect having taken two Besperax sleeping tablets in the early
morning hours of February 16, 1963, that is to say, the day of the incident, of going to work
thereafter as usual that day, and of feeling quite fit but excited and exhilarated. He remembered
visiting the International Bar with his two dogs with the intention of taking the dogs to Port Bell
later, and of taking two beers and probably a brandy afterwards at the bar.
Thereafter he had no recollection of what had happened. He could not say how in leaving the bar
he had driven the 3 miles distance to the Port Bell junction He could not remember meeting Hans
Thomas that day or the events at the police station. He was certain, however, that he was not
tested at the police station because he remembered voluntarily standing on one leg when he
thought he was considered drunk. He was asked if he wanted a doctor and he had refused to see
one, but that was in connection with the wound on his left eyebrow, which, in any case he had no
idea how it had come about. He only saw Dr. Lawrence (DW. 2) on Tuesday, February 19, 1963,
that is, 3 days after the incident, when he knew that he was going to be charged by the police.
Under cross-examination the appellant said:

I have never had concussion and I have never had amnesia. I have no real recollection of
anything from the time I got into the bar until the Port Bell turning. My amnesia probably started
at the International bar.
The appellant also called evidence as to his character and the state of his health generally as well
as medical evidence as to the possible effect of the sleeping tablets he had taken on February 16,
1963, both of which evidence was said to be in mitigation in the event of a conviction.
The learned trial magistrate in his judgment carefully and thoroughly examined the whole of the
relevant evidence before him and came to the conclusion that the witnesses for the prosecution
were truthful and reliable, and in particular that Hans Thomas, the principal witness for the
prosecution, was also public-spirited. He accepted their evidence and convicted the appellant as
already stated above.
The appellant now complains that the learned magistrate was wrong in so doing, that being the
substance of the complaint against the judgment of the learned magistrate which has emerged
from the arguments addressed to this court in respect of grounds 1, 2, 3 and 5 of the grounds of
appeal which I now propose to consider together.
Mr. Wilkinson for the appellant has submitted that the learned magistrate was wrong in accepting
the evidence of the witness for the prosecution and also in holding that Hans Thomas (PW. 2)
was public spirited as it was more likely that the latter was actuated by curiosity rather than
public-spiritedness. Hans Thomas power of observation was severely attacked in that it was said
that he failed to observe the cut on the eyelid of the appellant before the appellant fell out of his
car at the junction of Port Bell Road. It was said that the learned magistrate did not properly
direct his mind to the various aspects of the case because he failed to find that the appellant was
probably involved in an accident resulting in concussion and amnesia prior to the incident at the
Port Bell Road junction.
After having carefully considered these submissions, I agree with the contention of Mr. Keeble,
counsel for the respondent, that the issue before the court was one which turned on the facts and
that it is the duty of the appellant to satisfy this court that the findings of the learned magistrate
are unreasonable and cannot be supported having regard to the evidence. To put it another way,
Page 404 of [1963] 1 EA 400 (HCU)
as was laid down by the Court of Criminal Appeal in R. v. Mary Broadhurst and Others (1), 13
Cr. App. R. 125 at p. 130:
If there has merely been a misstatement of or a failure to state facts there may have been a
miscarriage of justice, and the onus is on the appellant to show that on a reasonable view of the
facts and with a proper direction therein, the result might well have been different. If the
appellant fails to show this the conviction must stand.
Now, here was a case which depended in the main on the oral testimony of witnesses, the
evidence for consideration being one-sided, for be it remembered, the appellant was not of
assistance to the court in that he could hardly recollect the incidents connected with the offence
with which he was charged, yet it was argued that the learned magistrate was wrong in accepting
the only material evidence before him, and therefrom drawing the only reasonable and
irresistible inference. The medical evidence concerning the possibility of the appellant having
had concussion and amnesia was said to have been given in mitigation in the event of a
conviction.
Surely it is not unreasonable to suppose (although the learned magistrate did not appear to have
taken that view) that it is only in a case in which an accused person has felt the full force and
effect of the prosecution case against him that he may resort to the expedient of calling evidence
as to his character and other facts in mitigation as was done in this case.
It is even difficult to see how the evidence that the appellant was under the influence of a drug
could have been considered in mitigation when, under the section of the Ordinance under which
the appellant was charged, it is an offence to drive or to attempt to do so while under the
influence of a drug to such an extent as to be incapable of having a proper control of a motor
vehicle. Be that as it may, the learned magistrate did not accept the evidence, and I think, quite
rightly. The evidence of Dr. Lawrence (DW. 2) for instance was highly speculative.
The learned magistrate, having reviewed the whole of the evidence before him, concluded as
follows:
And in my judgment having regard to the evidence as a whole the accused must have known
before he got into his car that he was not in a fit state to drive. I find therefore that the accused
was under the influence of drink to such an extent as to be incapable of having proper control of
his motor vehicle and I convict him on count 1.
I am unable to say that these findings were unreasonable and cannot be supported having regard
to the evidence. On the contrary I am satisfied that there is ample evidence to support them.
Grounds 1, 2, 3 and 5 of the appeal therefore fail.
I turn now to consider ground 4 which raises a difficult question of law. The contention is that
the learned magistrate misdirected himself on the issue as to the onus of proof, and that that
misdirection has occasioned a miscarriage of justice. In the concluding passage of his judgment
the learned magistrate had said:
It is sufficient for the defence to raise a reasonable doubt in the mind of the court whether there
may not have been concussion to account for the accuseds irresponsible behaviour, it is
sufficient not for the defence to establish a probability that there may have been concussion for
the defence to succeed.
It has been submitted that that is a wrong statement of the law since in criminal cases the burden
of proof on the prosecution never shifts, and that
Page 405 of [1963] 1 EA 400 (HCU)
there was no burden at all on the appellant to establish a probability that he might have suffered
from concussion before arriving at the Port Bell junction. Counsel for the appellant seems to
have overlooked the fact that the learned magistrate was in that passage dealing with the onus of
proof in regard to the defence of automatism. The passage appears to have arisen from a
consideration by the learned magistrate of a passage by Lord Goddard, C.J., in Hill v. Baxter (2),
[1958] 1 All E.R. 193 at p. 195, in which in a case stated by the Justices on a charge under s. 11
(1) and s. 49 (b) of the English Road Traffic Act, 1930, on the question of mens rea, Lord
Goddard, C.J., had said:
The first thing to be remembered is that the Statute contains an absolute prohibition against
driving dangerously or ignoring halt signs. No question of mens rea enters into the offence; it is
no answer to a charge under these sections to say, I did not mean to drive dangerously, or I did
not notice the halt sign. The justices finding that the respondent was not capable of forming any
intention as to the manner of driving, is really immaterial. What they evidently meant was that
the respondent was in a state of automation. But he was driving and, as the case finds, exercising
some skill, and undoubtedly the onus of proving that he was in a state of automation must be on
him. This no doubt, is subject to the qualification that where an onus is on the defendant in a
criminal case the burden is not as high as it is on a prosecutor.
It is of interest to note that that statement of the law as to the onus of proof where automation is
raised by the defence was subsequently approved and applied in R. v. Evans (3), [1962] 3 All
E.R. 1086. In my view this dictum of Lord Goddard, C.J., is far stronger than the passage in the
learned magistrates judgment now complained of, which seems to me to be a paraphrase of a
statement of the law by Devlin, J., as he then was, in Hill v. Baxter (2); There Devlin had said:
I agree that if the onus lies on the defence to produce some evidence of automatism, they have
failed to do so, with the result that the justices came to a wrong conclusion in law. It would be
quite unreasonable to allow the defence to submit at the end of the prosecutions case that the
Crown had not proved affirmatively and beyond a reasonable doubt that the accused was at the
time sober, or not sleep walking or not in a trance or blackout. I am satisfied that such matters
ought not to be considered at all until the defence has produced at least prima facie evidence.
On the evidence in the instant case, I am satisfied that there was no misdirection in law. In the
event it is possible to hold otherwise, I am satisfied that no miscarriage of justice has occurred.
The learned magistrate was fully conscious of the fundamental principle of law as to the burden
of proof in a criminal case as he clearly stated so in this passage of his judgment when he said:
The burden of proving the guilt of the accused always rests upon the prosecution and never
shifts on the defence.
I have given considerable thought to the question of sentence and, in particular to the period of
suspension of the appellants driving permit. It may be that if the appellant had been tried by this
court different sentence might have been imposed if he was found guilty. The learned magistrate
held that this was a serious case of drunkenness and dangerous driving and that he took into
consideration the mitigating circumstances which had been urged upon him. In the circumstances
and on the authority of Chapman v. OHagan (4), [1949] 2 All E.R. 690, I find myself unable to
substitute my discretion for that of the
Page 406 of [1963] 1 EA 400 (HCU)
learned magistrate as it is impossible to say that the exercise of his discretion in all the
circumstances of this case is perverse.
In the result this appeal must be dismissed. Order accordingly.
Appeal dismissed.
For the appellant:
PJ Wilkinson, QC and B De Silva
Wilkinson & Hunt, Kampala
For the respondent:
OJ Keeble
Hunter & Greig, Kampala
BANKRUPTCY
Harihar Chotabhai Patel v Uganda
[1966] 1 EA 311 (CAK)
Division:
Court of Appeal at Kampala
Date of judgment:
8 September 1966
Before:
Sir Charles Newbold, P Spry and Law JJA
Appeal from: The High Court of Uganda Russell, J.

[1] Bankruptcy Offence Failure to keep proper books of account Magistrates conclusion
that omission had been honest and excusable Burden on accused to show on balance of
probabilities omission honest and excusable Bankruptcy Act, (Cap. 71), s. 140 (1), proviso (b)
(U.).
[2] Appeal Jurisdiction Questions of law and fact Second appeal Bankruptcy offence.
Editors Summary
The appellant was charged with failing to keep proper books of account within a period of three
years prior to the date of the presentation of a bankruptcy petition contrary to s. 140 (1) of the
Bankruptcy Act. It was conceded that during the material period proper books had not been kept
and the sole question which arose for consideration by the resident magistrate was whether the
omission to keep proper books came within the proviso to s. 140 (1) which provides that such
omission shall not be an offence if it is honest and excusable. The resident magistrate came to the
conclusion that the omission had been honest and excusable. On appeal to the High Court, the
judge, while not interfering with the finding that the omission was honest, held that on the facts
before the resident magistrate it was not reasonably possible to hold that the omission was
excusable. He allowed the appeal and remitted the case to the resident magistrate for conviction
and sentence. On further appeal by the appellant to the Court of Appeal, it was submitted that the
High Court had no jurisdiction to interfere with the decision of the resident magistrate as the
right of appeal lay only on a point of law and the question whether the omission was excusable
was one of fact and not of law.
Held
(i)
the onus was on the accused to show on the balance of probabilities that the
failure to keep proper books was excusable;
(ii)
having regard to the period over which the default took place, the scale of the
business and the financial position of the appellant following the period when the books were
apparently kept properly, the reasons for the failure to keep proper books were vague and
unsatisfactory;
(iii)
the court was satisfied that there were no facts before the resident magistrate upon
which he could reasonably have come to the conclusion that the omission was excusable and
accordingly his decision was erroneous in law and the High Court had jurisdiction to rectify that
error.
Case remitted to the Resident Magistrate for conviction and sentence as directed by the High
Court.
No cases referred to in judgment.
Judgment
Sir Charles Newbold P, gave the following judgment of the court: This is a second appeal, being
an appeal from the decision of a judge of the High Court given on an appeal from a decision of
the resident magistrate, Busoga.
Page 312 of [1966] 1 EA 311 (CAK)
The appellant was charged with failing to keep proper books of account within a period of three
years prior to the date of the presentation of a bankruptcy petition, contrary to s. 140 (1) of the
Bankruptcy Ordinance. It was conceded that during almost all that period proper books had not
been kept and the sole question which arose for consideration by the resident magistrate was
whether the omission to keep proper books came within the proviso to s. 140 (1), which provides
that such omission shall not be an offence if it is honest and excusable. We should here draw
attention to the fact that the onus was on the accused, i.e. the appellant, to prove that the
circumstances in which he failed to keep proper books were such that the omission was honest
and excusable. On the facts proved before the resident magistrate, he came to the conclusion that
the omission had been honest and excusable. The judge of the High Court was not prepared to
interfere with the finding that the omission was honest but came to the conclusion that on the
facts before the resident magistrate it was not reasonably possible to hold, as the resident
magistrate had held, that the omission was excusable. He therefore allowed the appeal and
remitted the case to the resident magistrate for conviction and sentence of the appellant. From
that decision of the High Court this appeal has now been brought to this court.
This appeal, as we have already pointed out, is a second appeal and lies only on a question of
law. Counsel for the appellant has submitted that the High Court judge had no jurisdiction to
interfere with the decision of the resident magistrate as the judge himself only had jurisdiction on
a point of law, the appeal having been brought under s. 325 of the Criminal Procedure Code Act.
If, on the facts before the resident magistrate, it was reasonably possible to draw the inference
that the omission was excusable, the question whether it was excusable would be one of fact and
not of law and therefore the judge would have had no jurisdiction to interfere with the decision.
The question before us is this on the facts proved before the resident magistrate was it
reasonably possible to come to the conclusion that the omission in the circumstances of this case
to keep proper books during the period mentioned in the charge was excusable? In order to arrive
at the answer to this question it is necessary to set out the relevant facts. The outline of the facts
proved before the resident magistrate was that books were properly kept and audited up to June,
1959. After that date the appellant was in financial difficulty, which apparently deepened until a
petition in bankruptcy was presented in 1962. During this period, i.e. from June, 1959 to 1962,
some, but not adequate, books were kept up to the beginning of 1961 and no books at all were
kept thereafter. The reasons that the appellant gave were that the person who had been keeping
the books left and then he asked a relative to keep them. This relative kept some accounts for the
beginning of the period and then thereafter none at all, i.e. only for the first part and not for the
latter part. From these facts it would seem quite clear to us that the appellant knew that the books
were not being kept properly and yet he appears to have done nothing to remedy the default. He
said in an unsworn statement that having regard to the nature of his business, he thought the
accounts kept by his two main customers would be sufficient. We must also point out, as has
already been said, that the onus under the section is to satisfy the court that the omission was
excusable. This onus can of course be satisfied on a balance of probability; nevertheless there is
an onus upon the appellant and not, as in most criminal cases, on the prosecution. We would like
to draw attention to this fact because the defence relied only on an unsworn statement and it
would normally be difficult to discharge an onus purely by means of an unsworn statement
which cannot be tested by cross-examination. The resident magistrate, after examining the facts,
came to the conclusion that the omission was not shown to be grossly negligent. This appears to
be a misdirection as to the onus, as the resident magistrate seems to have approached
Page 313 of [1966] 1 EA 311 (CAK)
the facts on the basis that it was for the prosecution to prove the appellants negligence in failing
to keep his books. That is a misdirection in law as it was for the appellant to show that the
omission was excusable. It may be that it was for these reasons that the magistrate came to the
conclusion which he did. When the judge examined such facts as had been proved he came to the
conclusion that there were no facts upon which the magistrate could reasonably have come to the
conclusion that the omission was excusable. When we look at the facts we have already referred
to, the period over which the default took place, the scale of the business, and the financial
position of the appellant following the period when the books were apparently properly kept, the
reasons for the failure to keep proper books seem vague and unsatisfactory. We are satisfied that
there were no facts before the resident magistrate upon which he could reasonably have come to
the conclusion that this omission was excusable. That means that his decision was erroneous in
law and that jurisdiction was conferred on the trial judge to rectify that error.
For these reasons we consider that the High Court judge had jurisdiction to hear the appeal and
we consider that the appeal should be dismissed. The case will be remitted to the resident
magistrate for conviction and sentence as directed by the High Court.
Case remitted to the Resident Magistrate for conviction and sentence as directed by the High
Court.
For the appellant:
A. R. Kapila, Nairobi
Z. Haque
For the respondent:
The Attorney General, Uganda
H. D. Pandya (State Attorney, Uganda)
BILLS OF EXCHANGE
Fakhri Stores Ltd v London Confirmers Ltd
[1965] 1 EA 159 (CAN)
Division:
Date of judgment:
19 March 1965
Before:
Newbold Ag V-P, Sir Clement de-Lestang and Spry JJA
Appeal from: Supreme Court of Kenya Dalton, J
[1] Bills of exchange Material alteration No evidence that defendant privy to alteration No
evidence how and by whom alteration made Burden of proof on plaintiff to establish that party
sued privy to alteration.
Editors Summary
The respondent (as plaintiff) sued the appellant on four bills of exchange and alleged that the
bills had been accepted unconditionally by the appellant. The defence to the suit was an
allegation that the bills had received only qualified acceptance and that no liability had arisen on
them. At the hearing the four bills were produced as exhibits and each of these bore on its face
the words Subject to Extension or words to the like effect. The only witness for the respondent
was a bank official who stated that when he received the bills after acceptance by the appellant
the acceptance was unconditional and that the bills had not borne the references to extension. He
also stated that following acceptance the bills had been in the possession either of the bank or of
the respondent and that he was unable to explain the alteration. The trial judge entered judgment
for the respondent and rejected the appellants argument that the respondent having produced
from its own custody four bills the acceptance of which was patently qualified, was not entitled,
under s. 92 of Indian Evidence Act, 1872, to lead evidence to show that acceptance had in fact
been unqualified. On appeal it was submitted that when a person is suing on a bill which has
been materially altered, he can only succeed by establishing that the party sued was privy to the
alteration.
Held
(i)
the onus is on a plaintiff suing on bills of exchange which have patently been
altered in a material respect to prove that the defendant was privy to the alteration;
(ii)
the alterations were material, and under s. 64 of the Bills of Exchange Act the
bills became void except as against the party who had been privy to the alteration and except in
the case of alterations that were not apparent;
Page 160 of [1965] 1 EA 159 (CAN)
(iii)
as the respondent had failed to discharge the burden of proof that the appellant
was a privy to the alteration the bills were void against it.
Appeal allowed.
March 19. The following judgments were read:
Judgment
Spry JA: This is an appeal from a judgment and decree of the Supreme Court of Kenya in an
action based on four bills of exchange. There was an alternative claim, but it was not seriously
pursued and does not concern this appeal.
The defence to the suit was an allegation that the bills had received only qualified acceptance and
that no liability had arisen on them.
The plaintiff company (the present respondent) called only one witness, a bank clerk, who
produced the four bills on which the plaint was based. Each of these bore on its face the words
Subject to extension or words to the like effect and one also bore a reference to a letter. The
witness testified that in the course of his duty he had received the bills, duly accepted, and had
delivered against them the documents of title to certain goods for which the bills represented
payment. He said that when he received the bills, they had not borne the references to extension.
He said that the bills had thereafter been placed in the banks strong-room and had not thereafter
passed into the possession of the defendant company. He could offer no explanation how the bills
came to be altered.
No evidence was called by the defendant company.
No issues were framed at any stage of the proceedings. The case for the plaintiff company was
that the bills had been accepted without qualification. Counsel for the defendant company,
appears to have ranged over a wide field, but his main argument was that the plaintiff company,
having produced from its own custody four bills the acceptance of which was patently qualified,
was not entitled to lead evidence to show that acceptance had in fact been unqualified, and he
relied particularly on s. 92 of the Indian Evidence Act, 1872.
The learned trial judge rejected the argument based on s. 92. He accepted the evidence of the
witness for the plaintiff company that the bills had been accepted unconditionally. He dismissed
the qualifying words on the bills with the remark that how the words got there we will probably
never know. He accordingly found for the plaintiff company.
At no stage of the trial does there appear to have been any reference to s. 64 of the Bills of
Exchange Act (Cap. 27) which reads as follows:
64. Alteration of bill. (1) Where a bill or acceptance is materially altered without the
assent of all parties liable on the bill, the bill is avoided, except as against a party who has
himself made, authorized, or assented to the alteration, and subsequent endorsers:
Provided that where a bill has been materially altered, but the alteration is not
apparent, and the bill is in the hands of a holder in due course, such holder may avail himself of
the bill as if it had not been altered, and may enforce payment of it according to its original tenor.
(2)
In particular the following alterations are material, namely, any alteration of the
date, the sum payable, the time of payment, the place of payment, and, where a bill has been
accepted generally, the addition of a place of payment without the acceptors consent.
Page 161 of [1965] 1 EA 159 (CAN)
There was, however, reference to the corresponding English provision and the effect of a
material alteration appears to have been argued, although the learned judge made no reference in
his judgment to this aspect of the case.
At the hearing of the appeal, counsel for the appellants main argument for the defendant
company (the present appellants) was that when a person is suing on a bill which has materially
been altered, he can only succeed by establishing that the defendant was privy to the alteration.
In the present case, the plaintiff company was asserting that the bills had been accepted
unconditionally and that could only be so if the words of qualification had been added later. The
plaintiff company had, however, made no attempt to show when, by whom, or in what
circumstances the alteration had been made.
To this submission, counsel, for the plaintiff company, argued that the defendant company was
precluded by its pleading from arguing any defence other than that the acceptance of the bills
was qualified. He also argued that the qualifying words were vague and uncertain and should
therefore be disregarded. On this basis he contended that they should not be regarded as material
alterations. Finally, he submitted that the form of the defence raised an inference that the
defendant company had been privy to the alterations and that this inference was not rebutted by
the evidence of the witness.
As regards the first of these arguments, the written statement of defence amounts to a denial that
the defendant company had accepted without qualification the alleged bills. I think there was,
therefore, an initial onus on the plaintiff company to prove the acceptance of the bills. The
second argument has, in my view, no merit: I think the words alleged to have been added to the
bills, whatever their effect, cannot be regarded as other than material, particularly having regard
to sub-s. (2) of s. 64 of the Bills of Exchange Act, quoted above. As regards the third argument, I
think there are indications that suggest that the defendant company may have been privy to the
alterations, if alterations there were, but it has certainly not been proved.
In my opinion, the matter comes down to this: it is part of the plaintiff companys case that the
bills were altered; the alterations were material; material alterations avoid a bill, under s. 64 of
the Bills of Exchange Act, except as against a party who has been privy to the alterations and
except in the case of alterations that are not apparent; it has not been proved that the defendant
company was privy to the alterations; it has not been, nor, in my opinion, could it reasonably be
argued that the alterations are not apparent. The plaintiff company was basing its case on
documents which were prima facie void and failed to call sufficient evidence to prove their
validity. I appreciate that it may have been impossible to prove affirmatively who had made the
alterations, but if that were so, it was, I think, essential for the plaintiff company to call as
witnesses all available persons who had had custody of, handled or made endorsements on the
bills.
If I am correct in this, it follows that the appeal must be allowed and it is unnecessary to consider
the other aspects of the appeal which were argued before us.
I would allow the appeal, though not without reluctance, set aside the judgment and decree of the
Supreme Court and substitute an order dismissing the suit, with costs, and I would award the
defendant company the costs of the appeal.
Newbold Ag V-P: It is perfectly obvious that this appeal must succeed. The respondent, as
plaintiff, sued the appellant, as defendant, on four bills of exchange. The plaintiff alleged that the
bills of exchange had been accepted unconditionally by the defendant. On the suit coming for
trial the plaintiff produced, as it had to, the four bills. On the face of each of these bills there
Page 162 of [1965] 1 EA 159 (CAN)
appears a qualified acceptance. The only witness for the plaintiff was a bank official who stated
that when he received the bills after acceptance by the defendant the acceptance was unqualified.
He also stated that following acceptance the bills had been in the possession either of the bank or
of the plaintiff and that he was unable to explain the alteration or, indeed, certain other writing on
the bills which must have been placed thereon subsequent to acceptance. In these circumstances
it is clear that each bill has been materially altered and is thus avoided unless the alteration was
made with the consent of the defendant as acceptor (see s. 64 of the Bills of Exchange Act).
The evidence led on behalf of the plaintiff is to the effect that subsequent to acceptance the
defendant did not either himself make or authorise the alteration; thus it is quite clear that the
learned judge erred in giving judgment in favour of the plaintiff on the bills. Whatever lack of
merit there may be in the defendants case a plaintiff cannot possibly hope to succeed where he
produces evidence of the type this plaintiff produced: it is clear that either all the witnesses who
could have spoken as to what happened to the bills after acceptance have not been produced or
there has been considerable carelessness on the part of the bank or the plaintiff. I would allow the
appeal with costs and, as the other members of the court agree, an order shall be made in the
terms proposed by Spry, J.A.
Sir Clement De Lestang JA: I agree and have nothing to add.
Appeal allowed.
For the appellant:
Bryan O Donovan and JK Winayak
JK Winayak & Co, Nairobi
For the respondent:
SL Chawla
Kean & Kean, Nairobi
The Administrator-General of Zanzibar v Khalfan Bin Ali Bin Mohamed El-Battashy and
others
[1963] 1 EA 230 (HCZ)
Division:
High Court of Zanzibar at Zanzibar
Date of judgment:
7 September 1962
Case Number: 35/1962 (O.S.)
Before:
Horsfall Ag CJ
[1] Intestacy Commorientes Death of father and son in common calamity Father wounded
first Son struck immediately afterwards No evidence as to moment of death.
Editors Summary
The plaintiff took out an originating summons to determine whether a son had survived his
father. It was common ground that both died in a common calamity when their house was
attacked by a mob. The father was regarded as an old man and blind, while his son was fourteen
years old. A witness gave evidence that the father left the house first, was slashed with sticks and
bush knives and fell to the ground bleeding. He was followed by his son who was struck on his
head but, although giddy from the blow, walked back into the house. That was the last the
witness saw of the son but she said she considered the father was dead when she left . . .
because he was being assaulted there. There was no evidence when Hamoud died, though there
was no dispute that he did so as a result of injuries received from the mob. Counsel for the
defendants submitted that he had discharged the onus by proving that the son was alive when the
father was mortally wounded.
Held the massacre was a common calamity in which the father and son did not die
simultaneously; but the court could not draw any inference that an elderly blind man would
struggle against death longer than a boy of fourteen years or vice versa and it was impossible to
say which survived the other.
Order accordingly.
Case referred to:
(1) K. S. Agha Mir Ahmed Shah and Another v. Mir Mudassir Shah and Others (1944), A.I.R.
P.C. 100.
Judgment
Horsfall Ag CJ: The agreed issue on this originating summons is: Did the son, Hamoud bin
Soud, survive his father, Soud bin Ali? It is agreed that the burden of proof is on defendants 2, 3
and 4. I consider that this burden will be discharged if counsel establishes on balance the
reasonable probabilities for what he contends.
The facts are that Soud bin Ali was blind. There is no evidence of his age beyond that he is
described by the vague term old. I find that his son Hamoud was aged fourteen years. It is
proved that about 1 p.m. on a Saturday afternoon early in June, 1961, during the riots the house
of Soud was attacked by a mob. Soud, Hamoud, the witness Munira binti Khamis and her
husband collected in the corridor of Souds house. The husband made a run for it and escaped out
of the house only to be eventually killed. When the murderous mob broke in by the windows the
three remaining, in the following order, tried to escape from the house by the rear door. Soud
went first guided by the woman Munira behind him, followed by the son Hamoud. When the
party in this order opened
Page 231 of [1963] 1 EA 230 (HCZ)
the rear door of the house and reached the fenced compound they were greeted by more of the
murderous mob. They could not re-enter the house because of the mob inside nor escape because
of the mob which was outside the door. Soud was slashed with sticks and bush knives around the
chest and shoulders and fell to the ground bleeding. Hamoud was hit on the head. The woman,
Munira, was assaulted and when she said to Hamoud: Let us go, he replied: I am not going to
leave my father. Munira managed to flee away and has lived to tell the tale. She says that
Hamoud, being giddy from being hit, walked back into the house. That was the last she saw of
Hamoud. Munira considered that Soud was dead when she left. I knew he was dead because he
was being assaulted there. She was referring to the fury of the assault and she is asking me to
infer that it finished off the old man then and there. There is no dispute that Hamoud died as the
result of injuries received from the mob. There is no evidence when he died.
2.
There is no dispute as to the law. I quote from the head-note in the case of K. S.
Agha Mir Ahmed Shah and Another v. Mir Mudassir Shah and Others (1) (1944), A.I.R. P.C.
100:
When two individuals perish in a common calamity and the question arises as to who died first,
in the absence of evidence on the point, there is no presumption that the younger survived the
elder. Such a question is always from first to last a pure question of fact of the onus probandi
lying on the party who asserts the affirmative.
I hold that this massacre was a common calamity and that the father and son did not die
simultaneously in it. Counsel for defendants 2, 3 and 4 has submitted that he has discharged the
onus by proving that the son was alive when the father was mortally wounded. I agree that the
father was probably mortally wounded when he fell but that is not enough. Can I properly infer
that the father died immediately after he fell? There is no evidence of the nature of the injuries
inflicted on the father. I cannot refuse the possibility that the fathers wounds did not
immediately prove fatal. He may have breathed for a little time. It is possible that the son might
have been immediately killed directly he re-entered the house. I dont think that I can draw any
inference that an elderly blind man would struggle against death longer than a boy of fourteen
years of age or vice versa. I find it impossible to say which survived the other. Neither inherits
from the other. Accordingly Souds brother, the first defendant, is entitled to five twenty-fourths
of the estate. Costs of both parties to come out of the estate.
Order accordingly.
For the plaintiff:
KC Kotecha(Crown Counsel, Zanzibar).
The Administrator-General, Zanzibar
For the first defendant:
PS Talati
Wiggins & Stephens, Zanzibar
For the second, third and fourth defendants:
AMS Parkar
Parkar & Co, Zanzibar
CONTRACT
Walji Jetha Kanji and others v Elias Freed
[1959] 1 EA 1071 (CAM)
Division:
Court of Appeal at Mombasa
Date of judgment:
18 December 1959
Before:
Forbes V-P, Gould and Windham JJA
Appeal from: H.M. Supreme Court of KenyaEdmonds, J
[1] Building contract Contract specifying amount for labour but subject to final check of
measurement of building area Whether contract is entire contract or lump sum contract
Whether cause of action accrues before final check of measurement.
[2] Building contract Alleged defective work Onus of proof Completion required within
certain date Additional work ordered later Waiver Indian Contract Act, 1872, s. 63.
Editors Summary
The appellants sued the respondents for money due under a building contract and for additional
work. By the contract the respondents agreed to pay the appellants Shs. 98,450/- for their work
and labour, and interim advance payments amounting to Shs. 91,000/- were to be paid at stages
of the work. It was also stipulated that on completion of all works and after occupation
certificate obtained a sum of Shs. 15,000/- would be payable and on completion of six months
maintenance period a sum of Shs. 7,450/-. The payment of Shs. 15,000/- was subject to a final
check measurement of the building and may be subject to adjustment as a result of the final
check. In his defence the respondent denied liability stating that the building work was not
completed to his satisfaction, that the payment on completion of all works and after occupation
certificate obtained was subject to a final check measurement of the building which had never
been made, and that the building was not completed in time. He also counterclaimed for loss of
rent due to delay in completion of the building and for defective work. The appellants in reply
alleged that the delay was mainly due to the failure of the respondent, whose responsibility it
was, to supply materials when required and because the respondent ordered additional work. The
Supreme Court dismissed a substantial part of the plaintiffs
Page 1072 of [1959] 1 EA 1071 (CAM)
claim partly on the ground that it was premature as no final check measurements had been made;
partly on the ground of defective work and partially allowed the respondents counterclaim for
loss of rent and defective work. On appeal it was argued inter alia for the appellants that on a true
construction of the contract measurement of the completed blocks was not a condition precedent
to payment of Shs. 15,000/-; that the trial judge discussed measurement contracts without
defining what he meant by that phrase, that this was an entire contract subject to a right of
adjustment on the basis of area; that there had never been any request for measurement put
forward by the respondent in correspondence prior to the filing of the plaint, that it was never
suggested that less work had been done than was set out in the plan; that, therefore, the minimum
amount payable was Shs. 15,000/- and that if measurement was a condition precedent it had been
waived by the respondent.
Held
(i)
the contract was an entire contract and one in which the price was to be
ascertained subsequently on a fixed basis, namely, a final payment per square foot of the actual
area of the completed building, therefore, the action was not maintainable until such area had
been ascertained by measurement of the building;
(ii)
the onus was on the appellants to establish the amount to which they were entitled
under the contract and this they had failed to do;
(iii)
the onus was on the appellants to show that they were not responsible for defects
in the concrete work of the canopies;
(iv)
it is well established that where a lump sum contract is substantially completed,
liability cannot be repudiated on the ground that work, though substantially performed, is in
some respects not in accordance with the contract;
(v)
the defects established were not such that the respondent could reasonably
withhold approval of the building as a whole: the most he would have been entitled to do was to
retain out of the last instalment the value of the defects;
(vi)
though the effect of ordering the additional work was to set the time at large, the
appellants were still under an obligation to complete the work within a reasonable time;
(vii) in the circumstances of this case, s. 63 of the Indian Contract Act did not enter
into the matter, nor did the question of waiver arise.
Appeal allowed in part.
Cases referred to in judgment
(1) H. Dakin & Co. Ltd. v. Lee, [1916] 1 K.B. 566.
(2) Hoenig v. Isaacs, [1952] 2 All E.R. 176.
(3) Dodd v. Churton, [1897] 1 Q.B. 562.
December 18. The following judgments were read by direction of the court:
Judgment
Forbes V-P: This is an appeal from a judgment of the Supreme Court of Kenya.
The appellants are building contractors. By a contract in writing dated June 25 1955, they
undertook to erect for the respondent on his land at Mombasa, with materials to be supplied by
the respondent, a block of twelve flats and a block of twelve garages and boys W.C.s,
comprising a total area of approximately 17,900 square feet. The contract specified, inter alia,
that
the total area of 17,900 square feet is subject to final check on completion of the building;
Page 1073 of [1959] 1 EA 1071 (CAM)
that the appellants agreed to build
the said block of flats, garages and boys W.C.s completely and entirely in accordance with the
plans and specifications referred to above and to the satisfaction of the owner [i.e. the
respondent] and the Municipal Board of Mombasa;
and that the respondent agreed
to pay to the contractor [i.e. the appellants] the sum of shillings five and cents fifty per square
foot (Shs. 5/50) of building.
In para. 45 of terms and conditions set out in the contract provision was made for the
respondent to make interim advance payments to the appellants at various stages of the work.
Only the two last instalments provided for are material to this case, and the provision regarding
these reads as follows:
10. On completion of all works and after occupation certificate obtained
Shs. 15,000/11.
On completion of six months maintenance period
Shs. 7,450/Approximate total amount of Contract
Shs. 98,450/Note: The payment of item number ten above will be subject to a final check measurement of
the building and may be subject to adjustment as a result of the final check.
Provision, which was in the following terms, was also made in the terms and conditions for
alterations:
43. Alterations.The owner shall have the right to direct the contractor to effect such
alterations or amendments as he considers necessary providing that any alteration or amendment
shall not effect major structural alterations.
Finally, para. 46 of the terms and conditions provided that:
The time of completion of this contract shall be nine months from the date of signing this
agreement.
This meant that the date for completion under the contract was March 25, 1956. In fact, the
building was handed over on August 22, 1956. An occupation certificate had been duly
obtained.
In March, 1958, the appellants as plaintiffs filed a suit against the respondent claiming payment
of a sum of Shs. 27,236/- under the contract, together with interest thereon and the costs of the
suit. The sum of Shs. 27,236/- claimed was made up as follows:
Amount alleged unpaid in respect of instalments payable under the contract up to date of
completion
Shs. 13,000/Amount of last instalment payable six months after completion alleged to be unpaid
Shs. 7,450/Amount alleged due but unpaid in respect of additional work
Shs. 6,786/Total:
Shs. 27,236/In his defence the respondent admitted the contract, but denied that the work had been
completed according to the reasonable satisfaction of the defendant. He claimed that the tenth
payment under the terms of the contract was to be made subject to a final check measurement of
the building and that
Page 1074 of [1959] 1 EA 1071 (CAM)
no such check measurement had ever been made. He denied that he had ordered any additional
work, and, in the alternative, alleged that the charge for extra work was excessive and
unreasonable. He alleged that the work had not been completed in accordance with the terms of
the contract and specified a number of alleged defects. And he alleged that the building was not
completed on March 26, 1956, and was handed over in an uncompleted condition on or about
August 22, 1956. He counterclaimed for:
(i)
(ii)
Damages for loss of use and loss of rent for five months at Shs. 8,000/- per month
Shs. 40,000/Wages of one carpenter for fitting steel windows to building
Shs.
600/(iii)
Damages for use of incorrect bricks for front decoration as in plan at Shs. 2/50 per
Shs. 5,000/(iv)
Damages for replacing the terrazzo on the two staircases at 50 cents per sq. foot
Shs. 500/(v)
Loss of material due to plaintiffs error in placing the foundation of the recess in
the Lounge
Shs. 200/(vi)
Loss of material amounting to 150 wooden squares 4 2 pode owing to plaintiffs
negligence
Shs. 2,000/(vii) Loss of material being 10 tons of cement wasted
Shs. 2,200/(viii) Loss of material being concrete blocks completely cracked and thus damaging the
strength of the building
Shs. 5,000/(ix)
Loss due to badly made concrete canopies
Shs. 3,000/(x)
The cost of replastering engaging masons and using extra materials
Shs.
4,000/(xi)
The cost of labour which the defendant was compelled to engage to assist in the
levelling of the yard
Shs. 200/sq. ft.
Shs. 62,700/-
In their reply and defence to counterclaim the appellants alleged, inter alia, that the delay in
completion of the work was due to the fault of the respondent in failing to supply materials to be
supplied by him as and when they were required, in making false accusations of theft against the
workmen employed on the work, and in requiring the appellants to carry out the additional work
mentioned in the plaint.
As regards the sums claimed in the plaint, the learned trial judge held:
(1)
that the claim for Shs. 13,000/-, the balance of the tenth instalment, was
premature as the cause of action could not arise until there had been a check of the
measurements;
(2)
that the work had not been properly completed in that canopies were illconstructed at roof level, that the appellants were responsible for this bad work, and that the
respondent was therefore justified in withholding payment of the retention money, that is, the
sum of Shs. 7,450/- payable six months after completion; and
(3)
that additional work was in fact ordered by the respondent, that the agreed rate for
this work was Shs. 3/50 per square foot, and that the amount due to the appellants in respect of
this work was Shs. 3,976/-.
He accordingly gave judgment for the appellants on their claims in the plaint in the sum of Shs.
3,976/-.
Page 1075 of [1959] 1 EA 1071 (CAM)
As regards the respondents counterclaim, the learned judge held:
(1)
that except for item (ix) the respondent had failed to substantiate the allegations of
defective work specified in the defence and counterclaim, but that in respect of item (ix), the
alleged defective canopies, the respondents claim for Shs. 3,000/- as damages was justified and
should be allowed;
(2)
that the appellants had failed to substantiate their allegation that delay in
completion was due to the respondents failure to supply materials or to his making false
accusations of theft; that the appellants should not be allowed more than a maximum of eight
weeks for the additional work ordered by the respondent; but that by reason of the fact that
certain of the additional work, which would take three weeks to complete, was ordered on May
10, 1956, the completion date under the original contract was impliedly extended to May 31,
1956; and that the respondent was entitled to damages for non-completion at the rate of Shs.
8,000/- per month for the period of two months and twenty-two days from June 1 to August 22,
that is to say, Shs. 21,677/50.
He accordingly gave judgment on the counterclaim in the sum of Shs. 24,677/50.
The question of costs was reserved for further argument. In the event the learned judge allowed
the appellants one-seventh of their costs as taxed upon the amount of their claim, and the
respondent two-fifths of his costs as taxed upon the amount of his counterclaim. Interest at the
rate of 6 per cent. per annum from the date of judgment was awarded to the parties on the
amounts awarded to them respectively.
The appellants have appealed to this court against the learned judges decision in so far as the
decision:
(a)
dismissed the appellants claim for Shs. 20,450/-; and
(b)
ordered the appellants to pay to the respondent the sum of Shs. 24,677/50.
The appeal is also expressed to be against the orders in respect of costs. The appellants have not
appealed against the award of Shs. 3,976/- instead of Shs. 6,786/- in respect of additional work;
nor is there any cross-appeal by the respondent in respect of those parts of his counterclaim
which were not allowed.
It follows that the matters in issue on the appeal are:
(a)
the dismissal of the appellants claim for Shs. 13,000/-, being the balance claimed
to be unpaid in respect of the tenth instalment payable under the contract;
(b)
the dismissal of the appellants claim for the last instalment of Shs. 7,450/- alleged
to be payable six months after completion;
(c)
the award of Shs. 3,000/- as damages against the appellants in respect of alleged
defects in the concrete canopies;
(d)
the award of Shs. 21,677/50 as damages against the appellants in respect of
alleged delay in the completion of the work;
(e)
costs of the proceedings in the Supreme Court.
It will be convenient to deal separately with each of these matters.
As regards the appellants claim for Shs. 13,000/- in respect of the tenth instalment of the alleged
contract price, it was alleged in para. 3 of the plaint that:
Page 1076 of [1959] 1 EA 1071 (CAM)
the defendant agreed by the said contract to pay the plaintiffs for their work and labour under
the said contract a total sum of Shs. 98,450/-; Shs. 91,000/- of which was to be paid by him to the
plaintiffs by the time of completion of the construction work in ten instalments of several agreed
amounts payable at agreed stages of the construction work during its progress, as set out in the
said contract.
As already mentioned, the respondent in his defence contended that the tenth payment was to be
subject to a final check measurement. The issues on this point framed by the learned trial judge
with the concurrence of counsel for the parties were:
4.
On the true construction of the contract was the defendant under an obligation to
pay to the plaintiffs a lump sum of Shs. 98,450/- as alleged in para. 3 of plaint, and not a sum to
be calculated on a square footage basis?
5.
(a)
Was the final check measurement a condition precedent to payment of the
tenth instalment of Shs. 15,000/- or merely a term of the contract for the determination of the
actual amount payable to them?
(b) Has not the defendant waived it (if this defence is open to the plaintiffs on the
pleadings) or prevented its observance by the plaintiffs?
The learned trial judge dealt with the matter as follows:
The plaintiffs have by their pleadings rested their cause of action in the suit upon the sole basis
that the agreement of June 25, 1955, was a contract for a lump sum, while the defendant
contends that it was a contract by measurement and that until such measurement has been carried
out, nothing can be held to be due to the plaintiffs by way of balance of money payable for the
work done. It was contended by Mr. Budhdeo for the plaintiffs that this agreement is not in the
usual terms of a contract by measurement, the normal terms of which provide for payment only
after measurement at each stage of construction, whereas under the agreement in this case it is
only when the tenth payment accrues that the work becomes subject to measurement, the
preceding nine payments being stated lump payments. It is contended that measurement was not
a condition precedent to payment but merely a term of the contract for the determination of the
actual amount payable. If there is a difference between the two, it is rather too subtle for me to
find any significance in it. If measurement is a term of the contract for the determination of the
actual amount payable, then payment cannot be made until the amount is determinedin other
words payment is conditional upon measurement, which puts us back to where we were before
with no advantage derived other than an exercise in the play on words. Mr. Budhdeo appeared to
rely for this flight of fancy upon the following passage in the judgment of Denning, L.J., in
Hoening v. Isaacs, [1952] 2 All E.R. 180:
In determining this issue question is whether on the true construction of the contract, entire
performance was a condition precedent to payment. It was a lump sum contract, but that does not
mean that entire performance was a condition precedent to payment. When a contract provides
for a specific sum to be paid on completion of specified work, the courts lean against a
construction of the contract which would deprive the contractor of any payment at all simply
because there are some defects or omissions. The proviso to complete the work is, therefore,
construed as a term of the contract but not as a condition. It is not every breach of that term
which absolves the employer from his promise to pay the price, but only a breach which goes to
the root of the contract, such as abandonment of the work when it is only half done. Unless the
breach
Page 1077 of [1959] 1 EA 1071 (CAM)
does go to the root of the matter, the employer cannot resist payment of the price.
I cannot see how that case has any bearing upon the question in this case of whether the contract
was a measurement or a lump sum one. There is nothing between measurement and performance.
If a contract provides that the final payment will be made only after measurement, and as
payment for work done is at a rate per square foot, then surely nothing can be paid as a final
payment until it is ascertained if anything is due, for, indeed, it may be found on measurement
that nothing more is payable.
It is then contended for the plaintiffs that the contract is too imprecise in its terms to allow of it
being interpreted as a measurement contract, and Mr. Budhdeo drew attention to the note to cl.
45, the terms of which are quoted above. He argues that the words may be subject leave the
matter of measurement optional, and that had the words been shall be subject the intention
would have been precise and unambiguous. I cannot agree with the suggested interpretation of
the words contained in this note. It is quite clear to me that in their context the words may be
subject mean thisand in the event of the final check measurement showing that work of a less
or greater amount has been done, the sum payable will be adjusted. In other words, the necessity
or otherwise for adjustment was dependent upon the check measurement. I take the view that this
is a measurement contract and was so understood and acted upon by the parties. The preamble
sets out that the total area is approximately 17,900 square feet, and that it is subject to final
check on completion of the building; cl. 45 opens with the agreement of the defendant to make
interim payments; the total figure is given as approximate total amount of contract and the
words and figures are underlined twice; and finally, there is the foot-note. Those stipulations
amount in my view to a clear provision for a contract by measurement.
The plaintiffs however have laid their cause of action upon the basis of a lump sum contract,
and as they are bound by their pleadings, I cannot see how I can afford them the relief asked for
on those pleadings. A number of arguments were urged by Mr. Budhdeo to counter the
contentions for the defendant. He contended that the onus was upon the defendant to have the
final check made (a contention which in law is, I think, erroneous, the burden being upon the
plaintiffs to prove compliance with the condition of measurement); that the plaintiffs were
prevented by the defendant from making a final check; that there was substantial performance of
the contract and occupation by the defendant, and that if the contract did make provision for
measurement as a condition precedent to payment, the defendant had waived that condition by
his conduct. But as I see it, none of these defences are open to the plaintiffs on their pleadings.
As there has been no check measurement the plaintiffs claim for the sum of Shs. 13,000/-, the
balance of item 10 of cl. 45, is premature, as their cause of action cannot arise on their pleadings
until there has been a check of the measurements. In my view the plaintiffs claim for this sum
must fail.
Before us Mr. Nazareth for the appellants argued that on a true construction of the contract
measurement of the completed blocks was not a condition precedent to payment of the tenth
instalment; that the learned judge discussed measurement contracts without defining what he
meant by the phrase, and that the phrase does not cover any recognised class of contract; that the
broad distinction in building contracts is between contracts entire and contracts not entire;
that this was an entire contract subject to a right of adjustment on the basis of area; that the work
to be done was fixed work on an approved
Page 1078 of [1959] 1 EA 1071 (CAM)
plan of known approximate area on which the price was worked out; that there had never been
any request for measurement put forward by the respondent in correspondence prior to the filing
of the plaint; that it was open to the respondent to measure out the work himself and offer less
payment if that was justified; that it was never suggested that less work had been done than was
set out in the plan; that therefore the minimum amount payable under instalment ten was Shs.
15,000/-; and that if measurement was a condition precedent it had been waived by the
respondent.
I agree that in building contracts an important distinction is between contracts which are entire
and those which are not entire, but I do not think the question arises in this case. The contract
here is clearly an entire contract in that the appellants were under an obligation to construct the
whole of the work specified in the contract (see Halsburys Laws of England (3rd Edn.) Vol. 3, p.
437). There are, however, varieties of entire contracts, these being described on the same page of
Halsburys Laws of England. For the purposes of this case the relevant varieties in my view are
those numbered (1) and (4) at p. 437 of Halsbury, which are there described as follows:
(1) a contract to construct the whole building or works in consideration of the
payment of a fixed sum of money: contracts of this class are often called lump sum contracts;
............
(4)
a contract to construct the building or works for a price to be subsequently
ascertained on some fixed basis, for example, by a schedule of prices.
Mr. Nazareth argued that the instant contract fell in class (1), subject to a right of adjustment on
the basis of area. With respect, I am unable to agree. In my view the contract clearly falls within
class (4), that is, a contract in which the price is one to be ascertained subsequently on a fixed
basis, the basis here being a fixed payment per square foot of the actual area of the completed
building. This, in effect, is the learned judges finding on the construction of the contract, and I
respectfully agree with him. When he speaks of measurement contracts he is clearly using the
term to describe a contract in which the price is to be ascertained by measurement as contrasted
with a lump sum contract. In my view it is impossible to construe the instant contract as a
lump sum contract. It must, I think, follow from this that the action is not maintainable until the
price has been ascertained by measurement of the building. No doubt if it could be shown that
the respondent had accepted the figure of 17,900 square feet as correct, or had prevented the
appellants from making the necessary measurement, the appellants would have been entitled to
rely on that figure. But the appellants have neither pleaded nor established any such matter. The
onus is on the plaintiffs to establish the amount to which they are entitled under the contract, and
this they have failed to do. I agree with the learned trial judge that the appellants claim in respect
of instalment 10 of the contract price is premature and must fail.
The second matter in issue on the appeal, as set out above, is the dismissal of the appellants
claim for the last instalment payable six months after completion, but it is convenient to deal first
with the third issue, that is to say, the award to the respondent of Shs. 3,000/- damages in respect
of alleged defects in the concrete canopies, since the decision on this is relevant to the
consideration of the second issue.
The learned trial judge found that the canopies were in fact defective. There was evidence to
support this finding, and it is not challenged. The appellants contend, however, that they were not
responsible for the defects in the canopies, but that these were due to defects in shuttering
provided by the respondent
Page 1079 of [1959] 1 EA 1071 (CAM)
under the terms of the contract for the purpose of the construction of the canopies.
The learned trial judge deals with the matter as follows:
Mr. Sondi, among other qualifications, an associate member of the Society of Engineers in
London and practising here as a consultant engineer since 1950, stated that if the shuttering was
not level, any unevenness in the canopies would be the fault of the carpenter, but that if the
shuttering was level, the unevenness would be the masons fault.
Unfortunately Mr. Sondi was not examined more closely on this statement, nor was Mr.
Beresford asked his opinion as to the extent of a masons responsibility in the construction of the
canopies where the shuttering was provided by the owner of the building on which he was
working. The onus is upon the plaintiffs to satisfy me that the condition of the canopies was not
their responsibility. It seems to me that the dictates of common sense must be that the plaintiffs,
or shall we say the builders, must accept the final responsibility that the shuttering is so fixed as
to allow them to carry out their part of the work to the satisfaction of the owner. According to the
plaintiffs, it was the responsibility of the defendants carpenters to construct and fit the shutters,
and theirs (the plaintiffs) only to fill with concrete. Indeed, it would appear to be their contention
that even if the shuttering was clearly, obviously and even ridiculously at fault and out of true,
they would have no responsibility in the matter other than to fill with concrete, knowing that the
result would be quite contrary to specifications but absolving themselves on the grounds that the
responsibility for true levels rested with the carpenters. That is an attitude which I cannot accept.
It is my undoubted view that the ultimate responsibility for ensuring that the shutters are laid or
fixed level and properly is the builders. The construction of them was certainly the defendants
responsibility, but to enable the builder to construct proper canopies, it is for the builder to check
their fitting and, if not satisfied, to complain and take such action as is necessary to remedy the
matter. As I have said, the ultimate responsibility is the builders and was the plaintiffs in this
case. There is no evidence of any complaint by the plaintiffs as to the manner in which the
shuttering was constructed and fixed, and, indeed, both the second and third plaintiffs, who were
in charge of the construction, are, as I have already said, emphatic to this day that there is
nothing wrong with the canopiesan attitude which is quite false having regard to the clear
evidence of Mr. Beresford which I unhesitatingly accept as being true.
............
In view of my findings and of the evidence of Mr. Beresford as to the cost of remedying the
defects, I think that the defendants claim for Shs. 3,000/- as damages is justified, and I allow it.
I am not prepared to go quite as far as the learned judge in the passage cited. It seems to me that
it would be reasonable to draw a distinction between patent defects in the carpentry work, as to
which I would agree that the obligation is on the builder to see that they are corrected, and latent
defects which the builder cannot be expected to ascertain by reasonable inspection, but which
eventually result in defective concrete work. However, I do not think the distinction is of any
importance in this case. There is in fact no evidence to indicate whether the defects in the
canopies were due to patent or latent defects in the shuttering, or, for that matter, that the defects
were due to bad shuttering. As remarked by the learned judge, the appellants case was that the
canopies were not defective. In the absence of evidence to establish definitely what
Page 1080 of [1959] 1 EA 1071 (CAM)
was the cause of the defects in the canopies, it seems to me that the matter is really one of onus
of proof. The respondent pleaded that the canopies were defective, and the onus was upon him to
establish that plea. This he did. Upon this being established, it seems to me that the onus then
shifted to the appellants to show that the defective work was no fault of theirs. Prima facie, I
think the responsibility for defects in the concrete work rested with the appellants, though, in the
view I take, it was open to them to show that the responsibility was not theirs. Accordingly I
respectfully agree with the learned judge when he says
The onus is upon the plaintiffs to satisfy me that the condition of the canopies was not their
responsibility.
The appellants did not discharge that onus, their case being that there were no defects in the
canopies. I therefore agree with the learned judge that the respondent is entitled to damages for
the defects.
There was some suggestion that the damages awarded in respect of the defective canopies ought
to have been Shs. 2,500/- and not Shs. 3,000/- as claimed. Mr. Beresford, on whose evidence the
learned judge relied, stated that to remedy certain of the defects in the canopies would cost about
Shs. 2,500/-, but he made it clear that this was limited to ensuring a proper discharge of rainwater
from the canopies. Defects in the levels would remain, making the canopies unsightly. In the
circumstances I think the learned judge was justified in allowing the whole sum of Shs. 3,000/claimed as damages, as it seems a reasonable inference that the unsightly state of the canopies
would result in some reduction in the value of the building. I think therefore that the learned
judges award to the respondent of Shs. 3,000/- damages in respect of defects in the canopies is
to be supported.
I return now to the dismissal of the appellants claim for the last instalment of the contract price.
As to this, the learned judge says:
I think the plaintiffs claim for the retention money of Shs. 7,450/- may be treated differently
and as distinct from the question whether the agreement is a measurement contract or a lump
sum contract. It was the tenth payment of Shs. 15,000/- which was to be subject to final check,
and while adjustment of that sum would affect the total sum payable to the plaintiffs, it would
not affect the amount of the retention money. The defence to the claim for this money is that the
building was not completed to the satisfaction of the defendant in contravention of the stipulation
contained in the written agreement. The onus is upon the plaintiffs to prove that the defendant
was satisfied with the work, or that he has acted capriciously or dishonestly and could not, as a
reasonable man, have been dissatisfied.
The learned judge then considers the question of the defective canopies and continues:
The evidence, then, goes to show that the defendant had a genuine and substantial complaint as
regards the ill-constructed canopies at roof level. The plaintiffs have quite failed to prove that he
has been unreasonable or capricious in expressing his dissatisfaction with the work, and in my
view he must be held to have been justified in withholding the payment of the retention money,
and the plaintiffs claim in this regard must fail.
The relevant parts of the contract read as follows:
. . .Whereas the contractor has agreed to build the said block of flats, garages and boys W.C.s
completely and entirely in accordance with the plans and specifications referred to above and to
the satisfaction of the
Page 1081 of [1959] 1 EA 1071 (CAM)
owner and the Municipal Board of Mombasa and whereas in consideration thereof the owner
agrees to pay to the contractor the sum of shillings five and cents fifty per square foot (Shs. 5/50)
of building on the following terms and conditions:
45. Payments. The owner agrees during the following progress of the buildings to
make interim advance payments to the contractor.
11. On completion of six months maintenance period Shs. 7,450.00.
It was contended that the first parts of the above extract from the contract are mere recitals, but I
do not think there is any merit in this argument. Although framed as if they were recitals it is
clear from the contract as a whole that they are intended to be terms of the contract.
Considerable argument was addressed to us on the question whether or not the approval of the
respondent was a condition precedent to payment. The learned trial judge has not treated such
approval as an absolute condition precedent, but has held that the approval cannot be
unreasonably withheld. I see no reason to differ from the view taken by the learned judge. In
Hudson on Building Contracts (7th Edn.) at p. 247, the learned author says:
Where work has to be done to the approval of the building owner, such approval cannot,
generally speaking, be withheld by him unreasonably.
And in Halsburys Laws of England (3rd Edn.) at p. 455, it is said:
Where a building contract provides that the work shall be done to the satisfaction of the
building owner, and there is no express condition making his approval a condition precedent to
payment, the maxim that no man shall be judge in his own cause raises a presumption against
any implied contract that such approval is a condition precedent. In the absence of any express
condition to the contrary, such approval must not be unreasonably withheld.
I accept these statements of the law, and I see nothing in the contract to suggest in this case that
the respondent could unreasonably withhold approval and thereby avoid having to make
payment.
The learned judge, however, has held that the burden of proving that the respondent:
was satisfied with the work, or that he has acted capriciously or dishonestly and could not, as a
reasonable man, have been dissatisfied
was on the appellants. I incline to the view that this is a misdirection, but I do not think that the
question of onus of proof really enters into the matter here. The work was undoubtedly
completed and handed over, an occupation certificate having been duly obtained. The only
defective work the existence of which was established was in the defective canopies. I think the
only question for the learned judge to consider was whether the existence of the defects in the
canopies was such as would justify the withholding of approval of the buildings as a whole, and
he does not appear to have considered the matter in this light. It is, I think, well established that
where a lump sum contract (and for this purpose I think the instant contract is analogous to a
lump sum contract) is substantially completed, liability cannot be repudiated on the ground that
the work, though substantially performed, is in some respects not in accordance with the
contract: H. Dakin & Co. Ltd. v. Lee (1), [1916] 1 K.B. 566; Hoening v. Isaacs (2), [1952] 2 All
E.R. 176. In H. Dakin & Co. Ltd. v. Lee (1) Ridley, J., said at p. 568:
Page 1082 of [1959] 1 EA 1071 (CAM)
It is said, . . . that because in respect of three small matters the work was not carried out in
accordance with the specification the plaintiffs are not entitled to recover any part of the contract
price. The work was in my opinion substantially completed, and the defendant has had the
benefit of it, for she has been living in the house ever since the repairs were finished. But it is
contended that the authorities compel us to hold that the defendant, who has got the benefit of all
the work that was done, is not liable to pay anything for it because in those respects the contract
has not been absolutely complied with. If that were the law we should be bound to follow it,
however much one might regret having to do so, for I think it would be productive of very great
injustice.
It seems to me, however, from the authorities that where a building or repairing contract has
been substantially completed, although not absolutely, the person who gets the benefit of the
work which has been done under the contract must pay for that benefit. On the other hand, if the
builder has refused to complete his work, or if the work done is of no use to the other party, or if
the work is something entirely different from what was contracted for, then the builder can
recover nothing.
It is true that in that case no question of the work having to be done to the satisfaction of the
building owner arose, but I think that, on the basis of the principle there expressed, it could not
be said that the withholding of approval in respect of a whole building because of defects in a
minor part of the building would be reasonable. In the instant case the damages claimed and
allowed in respect of the defective canopies are Shs. 3,000/-. It would seem from Mr. Beresfords
evidence that when repairs to the value of Shs. 2,500/- have been carried out the canopies will be
perfectly serviceable, though to some extent unsightly. The total value of the contract as
estimated is some Shs. 98,450/-. It seems to me wholly unreasonable that approval of the
building as a whole should be withheld because of defects amounting in value to less than one
thirty-second part of the total value of the building. In Hoening v. Isaacs (2) at p. 181, Denning,
L.J., says:
It is, of course, always open to the parties by express words to make entire performance a
condition precedent. A familiar instance is when the contract provides for progress payments to
be made as the work proceeds, but for retention money to be held until completion. Then entire
performance is usually a condition precedent to payment of the retention money, but not, of
course, to the progress payments. The contractor is entitled to payment pro rata as the work
proceeds, less a deduction for retention money. But he is not entitled to the retention money until
the work is entirely finished, without defects or omissions.
It is to be noted in the instant case that the last instalment is not described as retention money,
nor has entire performance, or completion to the satisfaction of the respondent, or even bare
completion been made a condition precedent to its payment. As I have said, I do not think the
defects established were such that the respondent could reasonably withhold approval of the
building as a whole. I think that the most he would have been entitled to do was to retain out of
the last instalment the value of the defects. Since, however, he has recovered damages in respect
of the defects, this does not arise. I think the appellants are entitled to recover the amount of the
last instalment of the contract price, that is to say, Shs. 7,450/-, from the respondent, and I would
vary the learned judges decision to this extent.
The next matter to be considered is the award of Shs. 21,677/50 as damages against the
appellants in respect of delay in completion of the work. The learned judge dealt with this matter
at some length in his judgment, but I think
Page 1083 of [1959] 1 EA 1071 (CAM)
it is sufficient to refer to the following conclusions which he reaches, and to the latter part of the
relevant passage in the judgment. The learned judge finds:
(a)
that the onus of proving that the delay was caused by the act or omission of the
respondent lay upon the appellants;
(b)
that the appellants had failed to substantiate their allegations that the delay was
due to the failure of the respondent to supply a concrete mixer in accordance with the terms of
the contract, and to accusations of theft of material made by the respondent which were alleged
to have resulted in loss of labour;
(c)
that additional work ordered by the respondent under three separate plans should
not have entailed more than eight weeks additional work;
(d)
that the third plan entailing additional work, estimated to require three weeks to
perform, was ordered on May 10, 1956, whereas the nine-month period provided for in the
contract had expired on March 24, 1956;
(e)
that the ordering of these alterations constituted an implied agreement that the
time for completion was extended, at least to the date by which such work should have been
completed; that is, to May 31, 1956;
(f)
that additional work ordered involving the increase in height of a parapet wall and
the removal of steel doors and their replacement by wooden doors had not been proved to have
caused delay.
The learned judge then continues in his judgment as follows:
It follows, therefore that of the alleged factors causing delay, only the following may be
considered; the work involved in the three plans, exhibits 3, 4 and 5, and that involved in raising
the height of the parapet walls. I have already stated that I consider the defendant responsible for
delay until May 31, 1956, in respect of the work involved in the plan, exhibit 5, and it remains
only to consider whether any additional time should be allowed for the other work. I have
allocated three weeks out of the eight I am allowing as extra time for the third plan. The plaintiffs
have stated they would in normal circumstances have been able to complete the whole contract
within seven months. They were in fact allowed nine months. Thus, the extra two months more
than covered the five weeks necessary to carry out the work involved in plans 3 and 4 and the
further time necessary for the parapet wall. Indeed, there were more than two months. The period
from March 24 to May 10 was also available to the plaintiffssome seven weeks, so that it is
manifest on the evidence that the plaintiffs were amply compensated in time available for the
delays which have been held to have been caused by the act of the defendant. The plaintiffs have
thus established only that the defendant is responsible for delay in completion until May 10,
1956. It is contended for the plaintiffs that time was not of the essence of the contract and that a
reasonable time for completion should be allowed. But on the plaintiffs own showing nine
months was more than reasonable time, while I have allowed further time to May 31, 1956
another two months. In any event the defendant has proved that he has suffered damages and he
is entitled to such. (3 Halsbury, 443, para. 840). I accept his evidence that he could have let all
the flats in the building at a total rental of Shs. 8,000/- per month. The defendant will, therefore,
have damages under item (i) of his claim for the sum of Shs. 21,677/50 calculated at Shs. 8,000/per month for two months and twenty-two days.
Page 1084 of [1959] 1 EA 1071 (CAM)

I accept the statement of the law set out at p. 378 of Hudson on Building Contracts (7th Edn.),
where it is said:
Where there is no power to extend the time (or such power as there is is inapplicable to the
delay which has been caused by the employer), but there is power, e.g., to order extras, and
extras are ordered, then (as was said by Lord Esher, M.R., referring to Westwood v. Secretary of
State for India (1861), 11 W.R. 261, in Dodd v. Churton, [1897] 1 Q.B., at p. 567) the building
owner has rendered it impossible to complete the work by the specified date, and has deprived
himself of the right to claim the liquidated damages mentioned in the contract.
See also Halsburys Laws of England (3rd Edn.) Vol. 3, p. 490, para. 962. In Dodd v. Churton
(3), [1897] 1 Q.B. 562 at p. 566, Lord Esher, M.R., says:
The contract provided for the performance by a certain date of works described in a
specification in consideration of the payment of a fixed sum as the price of the works specified.
It is admitted that extra work was ordered, and that the necessary result of the builders having to
do that work was that it took him more time to complete the works than if he had only had to do
the work originally specified. It was, no doubt, part of the original contract that the building
owner should have a right to call upon the builder to do that extra work, and, if he did give an
order for it, the builder could not refuse to do it. The principle is laid down in Comyns Digest,
condition L (6), that, where one party to a contract is prevented from performing it by the act of
the other, he is not liable in law for that default; and, accordingly, a well recognised rule has been
established in cases of this kind, beginning with Holme v. Guppy, 3 M. & W. 387, to the effect
that, if the building owner has ordered extra work beyond that specified by the original contract
which has necessarily increased the time requisite for finishing the work, he is thereby disentitled
to claim the penalties for non-completion provided for by the contract. The reason for that rule is
that otherwise a most unreasonable burden would be imposed on the contractor. Then this further
complication arose. Contracts were entered into by which the builder agreed to do any extra
work which the building owner or his architect might order. It was urged in such cases, as, for
instance, in Westwood v. Secretary of State for India, 11 W.R. 261; 7 L.T. 736, that the fact that
the builder had contracted to do any extra work that might be ordered prevented the application
of the rule which I have mentioned. But it was held that that was not so. Then there came another
case which was said to be an exception from the rule, namely, that which existed in Jones v. St.
Johns College, L.R. 6 Q.B. 115. There it was alleged on the pleadings that there was an
agreement by which the builder agreed that, if any extra work was ordered, then, whatever that
work might be, he would undertake nevertheless to complete the works within the time originally
specified by the contract; and it was thereupon held that, if the builder was foolish enough to
make such an agreement, he was bound by it and must take the consequences. The whole
question here is whether on the construction of this contract, by which undoubtedly the builder
has undertaken to perform any extra work that may be ordered, he has agreed to take upon
himself the burden which the builder had taken upon himself in Jones v. St. Johns College; in
which case, however foolish and unreasonable such an agreement may be, he must stand by it.
One rule of construction with regard to contracts is that, where the terms of a contract are
ambiguous, and one construction would lead to an unreasonable result, the court will be
unwilling to adopt that construction. In Jones v. St. Johns College the court had no opportunity
of construing the contract really made. The demurrer admitted the
Page 1085 of [1959] 1 EA 1071 (CAM)
statement on the pleadings that the builder had entered into the unreasonable agreement alleged.
I cannot construe the contract in this case as containing such an agreement by the builder. I think
the words in the contract relied upon by the defendant are capable of another construction which
would be perfectly reasonable. It seems to me therefore that the case is not brought within the
authority of Jones v. St. Johns College, but falls within the class of cases, of which Westwood v.
Secretary of State for India is an example, where it has been held that, although the building
owner was entitled to give orders for extras, if, by so doing, he has rendered it impossible to
complete the work by the specified date, he has deprived himself of the right to claim the
liquidated damages mentioned in the contract.
It seems to me that the instant case clearly falls within the rule in Dodd v. Churton (3), with the
exception that in this contract there is no provision for liquidated damages, and the respondents
claim was for unliquidated damages. As to this, in Halsburys Laws of England (3rd Edn.) Vol. 3
at p. 492 it is said:
Recovery of unliquidated damages. Where the time fixed by the contract has ceased to be
applicable in consequence of some delay by the employer, and consequently his right to
liquidated damages has gone, he can have no claim for unliquidated damages provided the
builder completes within a reasonable time. Cf. Tyers v. Rosedale and Ferryhill Iron Co. (1875),
L.R. 10 Exch. 195; Ford v. Cotesworth (1870), L.R. 5 Q.B. 544.
I have no doubt that the effect of the ordering of the additional work in this case was to set the
time at large, but I think the appellants were still under an obligation to complete the work within
a reasonable time. The learned judge did not base his decision on completion within a reasonable
time, but he did consider what would be a reasonable time for completion, and I see no reason to
differ from his conclusion in this respect. With respect, I do not agree with his argument that,
because the appellants stated that in normal circumstances they would have been able to
complete the contract in seven months, the nine months allowed in the contract would more than
cover the time required to complete the extra work involved in plans 3 and 4. The appellants
contracted to be allowed nine months to complete the work provided for in the contract, and they
were entitled to take that time for that work. The appellants statement, however, does indicate
that the nine months provided for in the contract was a reasonable time within which the
appellants ought to have completed the original work. The learned judge has found that a
reasonable time for completion of the extra works ordered would be eight weeks, and, as I have
said, I see no reason to disagree with this conclusion. By reason of the order for the last item of
extra work not having been placed till May 10, the learned judge has fixed the reasonable
completion date as May 31 in view of his assessment of three weeks as the reasonable time
involved in completion of the last item of extra work. As he points out, the additional period to
May 31 amply covers the time required for completion of the other items of additional work.
Mr. Nazareth argued that there had been a waiver of the completion date fixed by the contract,
and relied on s. 63 of the Indian Contract Act, which applies in Kenya. In the circumstances of
this case I do not think that s. 63 of the Contract Act really enters into the matter, nor does the
question of waiver arise. The ordering of the additional work set the time for completion at large,
but the appellants were still under the obligation to complete within a reasonable time. The
learned trial judge has held that the reasonable time for completion was May 31, 1956. I am not
prepared to differ from that
Page 1086 of [1959] 1 EA 1071 (CAM)
conclusion. The other alleged causes of delay were not seriously relied on at the hearing of the
appeal, nor was the measure of damages challenged in argument, though it is raised in the
memorandum of appeal. It is sufficient to say that I see no reason to disturb the learned judges
decision in relation to these matters. I therefore think the learned judges award of Shs. 21,677/50
damages to the respondent in respect of the delay in completion is to be supported.
In the result I think the learned trial judges decision should be varied to the extent that judgment
should be entered for the appellants on the plaint in the sum of Shs. 11,426/-, instead of Shs.
3,976/- allowed by the learned judge, but that the learned judges award of Shs. 24,677/50 as
damages to the respondent on the counterclaim should be affirmed. In view of this conclusion I
think the order for costs in the court below should be varied to the extent of allowing the
appellants one-half of their costs as taxed on the amount of their claim; the order as to costs on
the counterclaim should stand.
As regards costs of the appeal the appellants have succeeded on one only of the issues raised in
the appeal. I would allow them one-third of the costs of the appeal as taxed.
Gould JA: I agree with the conclusions of the learned vice-president and that the appeal should
be allowed to the extent indicated in his judgment. I agree also with the proposed order for costs.
Windham JA: I also agree.
Appeal allowed in part.
For the appellants:
JM Nazareth QC and EP Nowrojee
EP Nowrojee, Nairobi
For the respondent:
RP Cleasby
Atkinson, Cleasby & Co, Mombasa
CUSTOMARY
Pazi v Mohamed
[1968] 1 EA 111 (HCT)
Division:
High Court of Tanzania at Dar-Es-Salaam
Date of judgment:
8 December 1967
Case Number: 97/1966 (34/68)
Before:
Hamlyn J
[1] Evidence Marriage Presumption of Mohammedan Marriage Cohabitation as husband
and wife for several decades Indian Evidence Act 1872, s. 50 (T.).
[2] Mohammedan Law Marriage Cohabitation as husband and wife for several decades
Presumption of marriage arising Indian Evidence Act 1872, s. 50 (T.).
Editors Summary
The inheritance of a deceaseds estate under the law of the Shafi sect of Islam depended on
whether the deceased widow was lawfully married to the appellant. There was evidence that the
parties had cohabited as husband and wife for several decades and the only points in issue were
(i) whether such cohabitation raised a presumption as to the existence of a valid marriage and (ii)
if so, whether any evidence had been led to rebut such a presumption.
Held
(i)
section 50 of the Indian Evidence Act 1872 provides that evidence of continual
cohabitation as husband and wife is admissible to raise the presumption of marriage in Islamic
law;
(ii)
there was ample evidence of continual cohabitation and the onus was therefore on
the respondent to rebut the presumption of marriage;
(iii)
there was no such evidence before the court.
Appeal allowed. Decision of the district court set aside and that of the primary court restored
with costs in all three courts to the appellant.
No cases referred to in judgment
Judgment
Hamlyn J: This appeal concerns a question of fact; whether the woman Fatuma d/o Ali or
Ambari (now deceased) was
Page 112 of [1968] 1 EA 111 (HCT)
lawfully married to the appellant, Ali s/o Pazi. The claim, which arises out of the decision, is in
respect of certain property left by the deceased woman and as to who should inherit it. There is
no dispute that all the parties concerned in these proceedings are members of the Shafi sect of
Islam, nor is the division of the property in issue. Once the decision as to whether there was a
valid marriage between the appellant and the deceased woman has been reached, the question of
inheritance presents no difficulty.
Counsel for the respondent laid stress upon the contention that the views of the Shafi sect are
most conservative and that, this being so, the appellant must show that all the minutiae of Islamic
law have been meticulously complied with in so far as the alleged marriage ceremony is
concerned. He urged upon me that no presumption as to marriage arises in cases of this nature
and that only upon strict proof of every legal requirement as to marriage can such marriage be
held to have taken place. Thus, the appellant must show that a wali was present and that such
guardian carried out his prescribed duties; he must show that the ceremony was performed by an
authorized person and that the necessary two qualified witnesses were in attendance.
Now all this is undoubtedly correct save that neither counsel has referred this court to the
underlying principle (which obtains in Islamic law as it does in many other codes) that there is a
presumption of marriage where a man and woman have lived together as man and wife for a
considerable period of time. I cannot accept the contention of counsel for the respondent that no
such presumption arises in the law of Islam in general or in that of the Shafi sect in particular. To
do so would be to lay upon the appellant a burden which he would almost certainly be unable to
discharge after so considerable a period of time.
Nor can I agree that the absence of a certificate of marriage has any particular significance, other
than (to some minor degree) supporting the respondents case. The failure to produce such
written evidence may be accounted for in many ways after a period of some forty years. There is
no magic in such document, nor does its non-production necessarily raise a presumption that no
marriage took place between the parties.
The district court, in its appellate jurisdiction, differed from the decision of the primary court of
Ilala and held that there was no real proof of the marriage. But nowhere in its judgment did it
refer to the question of onus of proof and the magistrate, in deciding the matter, appears to have
acted on the assumption that it was for the appellant to prove his case. That is not so, for there is
a presumption of law in his favour.
It appears that the Statement of Islamic Law, published as Government Notice No. 222 of 1967,
has as yet not been brought into force and consequently this court is not able to adopt direct from
it cl. 41 which governs presumptions in matters of this nature. But such Statement embodies the
existing provisions of the law of Islam and is further supported by s. 50 of the Indian Evidence
Act. Even prior to 1872 when that Act became law, evidence of continual cohabitation as
husband and wife was admissible to raise a presumption of marriage in Islamic law and a number
of Indian cases support this view. It is however necessary that such cohabitation as is shown be
proved as that of husband and wife, for no other form of cohabitation suffices.
Both parties agree that there was cohabitation between the appellant and the woman lasting over
several decades; the appellant himself in the primary court claims that she was his wife. There
was independent evidence in that court showing that Ali Pazi and the woman lived together as
husband and wife, and the woman Fatuma d/o Abdullah informed the court that, at the time that
she (Fatuma) became friendly with the deceased woman, she was married and told
Page 113 of [1968] 1 EA 111 (HCT)
me that her husband was Ali Pazi. She added I know that Ali Pazi was the husband of the
deceased Fatuma Ambari.
There is, I consider, ample evidence in the appellants case to establish both the fact of
cohabitation and that such cohabitation was patently that of man and wife, and, this being the
case, the onus falls upon the respondent to show that there was in fact no subsisting marriage.
It is I think here (upon this question of presumption) that the district court has gone astray. Both
in respect of the relationship of the wali and in the non-production of a certificate of registration
of the marriage, the court has viewed the matter as one in which the onus lay upon the appellant.
As a result of the man-and-wife cohabitation over so long a period, which was clearly
established, it was upon the respondent to produce evidence to show that there was in fact no
marriage between these persons.
There is evidence of the presence of an acceptable wali and of the required witnesses. There was
also evidence (which was un-rebutted) that a kadhi named Hamisi Mamboya performed the
marriage ceremony.
The respondent has failed to produce any evidence which satisfactorily sets aside the
presumption of marriage between the appellant and the woman Fatuma, while there is
considerable evidence supporting the presumption.
In the event, therefore, this appeal must be allowed and the decision of the district court is
consequently set aside, that of the primary court being restored. The appellant will have the costs
of this appeal and his costs in the courts below.
Appeal allowed.
For the appellant:
Awtar Singh
For the respondent:
SA Kitabwalla
DIVORCE
Ernest Henry Powell Mallinson v Flora Maclean Mallinson
[1961] 1 EA 185 (CAN)
Division:
Date of judgment:
25 January 1961
Before:
Sir Alastair Forbes V-P, Gould JA and Connell J
Appeal from: H.M. Supreme Court of KenyaFarrell, J

[1] Divorce Desertion Husband employed away from matrimonial home Refusal by wife
to join husband Whether refusal necessarily constitutes desertion Burden of proof.
Editors Summary
In 1950 the appellant, a retired officer, and the respondent acquired and lived at the matrimonial
home in Nanyuki. Later that year the appellant to supplement his pension sought and obtained
temporary employment at a school at Gilgil. He remained there until 1954, returning to Nanyuki
for holidays and later took a temporary position at Nyeri. In 1955 the appellant obtained a post as
assistant master at a school at Gilgil on a four years contract from January, 1956. He then invited
the respondent to join him at Gilgil and she refused. In 1959 the appellant petitioned for a
divorce alleging that the respondents refusal to join him at Gilgil constituted desertion without
just cause. The trial judge dismissed the petition, holding, inter alia, that he could find nothing in
the evidence to suggest that the respondent was not ready and willing to have the appellant at the
Nanyuki house during holidays; that there was no evidence after the original invitation of any
further attempt by the appellant to persuade the respondent to join him at Gilgil; that it was to be
inferred that after the respondents first refusal the appellant acquiesced in the respondent
remaining at Nanyuki; that whilst the request was not unreasonable, the respondent might have
considered that the request was not made very seriously, that in the circumstances the refusal by
the respondent was not wholly unreasonable and therefore the refusal did not indicate any
intention on the part of the respondent to desert the appellant. On appeal it was submitted inter
alia that the trial judge erred in holding that the respondents refusal to join the appellant at Gilgil
was not unreasonable and that she had no intention to desert, that he misdirected himself (a) by
taking into account the alleged failure of the appellant to attempt to persuade the respondent to
change her mind, and (b) in holding that if the respondent had been guilty of desertion, the
appellant had acquiesced in her refusal by failing to try to persuade her to change her mind and
that he failed to direct himself that once desertion had been proved to begin, a presumption
would arise that nothing had happened to preclude the appellant from asserting that the
respondent continued in a state of desertion. Counsel for the respondent conceded the last two
grounds but contended that desertion had not begun.
Held
(i)
the judges finding that the appellant acquiesced in the respondents refusal to join
him could not be supported.
(ii)
the refusal of the respondent to join the appellant was unreasonable.
(iii)
however the burden of proof, which is heavier than in an ordinary civil action lay
on the appellant and even after giving full weight to the appellants invitation to the respondent
to join him, the evidence fell short of establishing an animus deserendi on the part of the
respondent.
Appeal dismissed.
Page 186 of [1961] 1 EA 185 (CAN)
Cases referred to:
(1) Dunn v. Dunn, [1948] 2 All E.R. 822.
(2) Walter v. Walter (1949), 65 T.L.R. (R.) 680.
(3) Harriman v. Harriman, [1909] P. 123.
(4) Bartram v. Bartram, [1949] 2 All E.R. 270.
(5) Watt (or Thomas) v. Thomas, [1947] 1 All E.R. 582.

(6) Hosegood v. Hosegood (1950), 66 T.L.R. 735.
January 25. The following judgments were read:
Judgment
Sir Alastair Forbes V-P: This is an appeal from a judgment and decree of the Supreme Court of
Kenya dismissing with costs a petition for dissolution of marriage by a husband (now the
appellant) on the grounds of desertion. The petition is dated June 12, 1959, and alleges that the
respondent deserted the appellant without just cause for a period of at least three years
immediately preceding the presentation of the petition. The particular act relied on as
constituting desertion was the alleged refusal of the respondent, in or about January, 1956, to join
the appellant and live with him at Pembroke House School, Gilgil, where the appellant had
obtained employment as assistant master for a period of four years. The petition alleges:
Your petitioner requested the respondent to join him at Pembroke House School aforesaid yet
she refused to do so and in the course of correspondence indicated her intention of bringing
cohabitation between your petitioner and the respondent permanently to an end and has ever
since January, 1956, without cause or the consent of the petitioner and with such intention, lived
separate and apart from him.
In her answer to the petition the respondent stated, inter alia:
6.
That the respondent admits that she has since January, 1956, lived separate and
apart from the petitioner but avers that this was due to the conduct of the petitioner who failed to
provide any suitable accommodation for her where she could live and cohabit with him and
further avers that she requested the petitioner to make available for her suitable accommodation
where she could live and cohabit with him but the petitioner failed and has at all material times
continued to fail to provide such accommodation for her as aforesaid. For the reasons aforesaid
the respondent has been obliged to continue to live in the matrimonial home at Nanyuki in the
said Colony no other home or accommodation being available or having been provided for her
by the petitioner.
7.
That the respondent now is and has at all material times been ready and willing to
live and cohabit with the petitioner provided that suitable accommodation is made available for
her by the petitioner.
The facts leading up to the alleged desertion are fully stated in the judgment of the learned trial
judge. For the purposes of this appeal it is sufficient to say that the parties, who are both elderly,
were married in India in the year 1928, and that the three children of the marriage are all of age;
that the appellant retired from the Indian Army in 1947, and in or about 1948 the parties decided
to make their home in Kenya; that about 1950 a house at Nanyuki was purchased in the joint
names of the appellant and respondent; that of necessity the appellant had to seek employment to
supplement his army pension, and obtained employment in 1950 as an assistant master at
Pembroke House School, Gilgil, on a temporary basis, and remained there till 1954; that during
this time he could and did return to the house at Nanyuki,
Page 187 of [1961] 1 EA 185 (CAN)
which was then the matrimonial home, only during the school holidays; that during this period
the emergency broke out in consequence of which the respondent suffered considerable strain
which had an adverse effect upon her, and made her anxious that the appellant should return to
the Nanyuki home; that the appellant was unable to obtain work in the Nanyuki area, but did for
a time obtain a temporary post at Nyeri, where he remained till the end of the year 1954; that in
1955 he accepted a post as assistant master at Greensteads School, Nakuru, at a salary of 25 or
30 per month more than he was receiving at Nyeri, and remained there till the end of the year
1955; that thereafter he was offered and accepted a post as assistant master at Pembroke House
School, Gilgil, on contract terms for a period of four years from January, 1956; and that during
the period 1950 to 1955 relations between the appellant and respondent deteriorated steadily,
letters written by the respondent to the appellant, some of which were exhibits, being abusive in
tone and far from calculated to make the appellant feel that he was welcome in his own home.
So far the facts were not in dispute. There was a conflict, however, as to the events connected
with the alleged invitation by the appellant to the respondent to join him at Gilgil after he had
secured the four-year post. As to these, the learned judge accepted the respondents version as to
the sequence of events, holding that the appellant and Mr. Hazard, Headmaster of Pembroke
House School, must be mistaken; but as to the events themselves, he accepted the evidence of the
appellant and Mr. Hazard, concluding that the respondent was untruthful as to these. It is the
events themselves which matter, the precise times having little significance. The learned judge
said:
More important, however, than any question as to dates is the question whether an offer was
made to the respondent of a residence at Pembroke House, to be available to her from January,
1956, onwards. On this point there is a clear conflict of evidence between the petitioner and the
respondent. If the respondent is to be believed, she herself suggested that she should come to live
in the cottage which she had seen and was then told that it was not available. According to the
petitioner, he urged her to come and live with him there and she refused to do so at any price. I
have found nothing in the correspondence to help me to resolve this conflict. The evidence of
Mr. Hazard is clear that the cottage was in fact available, and I find it difficult to believe that the
petitioner deliberately misled the respondent by telling her that it was not available. I find it
difficult, too, to believe that the respondent is deliberately lying when she says that the petitioner
so informed her, but I have reluctantly come to the conclusion that the respondent is not telling
the truth about this, and that the petitioner is speaking the truth when he says that the cottage was
in fact available and that the respondent was so informed. I accordingly find that the petitioner
did offer the respondent a home at Gilgil which it is agreed was or could have been made
suitable, to be available in January, 1956, and asked the respondent to join him there and that the
respondent refused to do so. It is on that refusal that the charge of desertion is based.
These findings of fact by the learned trial judge are not challenged. The learned judge then
proceeds to consider the law and concludes, relying on Dunn v. Dunn (1), [1948] 2 All E.R. 822
and Walter v. Walter (2) (1949), 65 T.L.R. (R.) 680, that:
the mere refusal of the wife to join the husband in the place where he is ready to receive her is
not necessarily desertion unless the refusal is in the circumstances unreasonable.
He accordingly proceeds to consider this question, and the question whether the respondents
refusal indicated an intention to desert. As the learned judges
Page 188 of [1961] 1 EA 185 (CAN)
conclusions on these aspects of the matter are challenged, it is necessary to set out the relevant
part of the judgment in full. It is as follows:
In this case the respondents refusal to join her husband at Gilgil must be looked at against the
background of the history of the marriage during the immediately preceding years. The parties
had come to Kenya with the intention of setting up a home there for themselves and their two
daughters, and since the purchase of the house at Nanyuki in 1950 that had unquestionably been
the matrimonial home. The daughters had subsequently taken up employment away from home,
but used to return there for holidays and at any rate to the respondent it was important that there
should be a home to which they could return. The respondent had lived there throughout, often in
most unpleasant circumstances. The petitioner, rightly or wrongly, had taken up employment
away from home, but used to return there in his holidays, and right up to 1956 at any rate, it was
his home as well as hers, though towards the end of the period his visits tended to become
shorter and more infrequent. Though the petitioner had obtained employment at Gilgil on a
contract for at least four years, to the respondent there was a permanency about the home at
Nanyuki which may well have appeared to be lacking in the proposed new home at Gilgil. That
in itself is not a ground for refusing any change, but it is an element to be considered, as it was in
Dunn v. Dunn, and while complaints were made by the petitioner that when from time to time he
returned the respondent made him unwelcome in various ways. I find nothing in the evidence to
suggest that she was not ready and willing to have the petitioner there during his holidays
whenever he could get them, as was found to be the case with the respondent in Dunn v. Dunn
(supra).
To constitute desertion there must not only be de facto separation, but an animus deserendi. So
far as the respondent was concerned, her refusal to go to live at Gilgil would not have put an end
to the marriage as it had existed for the last six years, when her husband had been working away
from home, but would have left the existing state of affairs unchanged, with the matrimonial
home still in existence and available to both the parties as it had been in the past. In those
circumstances it is difficult to argue that the respondent was showing an intention to desert her
husband, as she would have done if she had refused to live in the only place which could have
been regarded in the future as a matrimonial home. Since the war the petitioner had found five
different employments, all of which required him to live away from home. During the early days
of the emergency the respondent had urged him to come back and live with her at Nanyuki, and
while it has not been shown to my satisfaction that any particular job had been offered to him in
that area, I formed the impression that the petitioner had not shown any great enthusiasm to find
a job there. Whether that is right or wrong, I think the respondent had reason to believe that the
petitioner had no great desire to live at home with her. I have already referred to the question
whether when he was employed at Greensteads he invited the respondent to join him there; and
whether he did so or not, it is clear on the evidence, that he did not press the respondent to do so.
Then towards the end of 1955 he asked her to join him at Pembroke House. In view of his
previous attitude it is material to consider the degree of urgency with which his invitation was
given. There is all the difference between a casual suggestion that it would be a good idea if the
respondent came to join him, and an insistent request that she should do so, coupled with some
clear intimation that her failure to do so might put an end to their marriage.
The evidence of the petitioner which I have already discussed refers
Page 189 of [1961] 1 EA 185 (CAN)
to two requests, (a) by letter, to which his daughter replied saying that the respondent did not
wish to come, and (b) orally, at the time of her visit to Pembroke House. As I have accepted that
the respondent is correct in placing her visit in September, 1955, it follows that the first request
must have been in discussion at that time, and that the letter to his daughter must have been later.
The daughters evidence is that the letter (if it is the same letter) referred specifically to a job
being available for the respondent. This could, of course, imply that the respondent should come
and reside at the school. But even if the letter can be construed as a further request to the
respondent to come and live there, it is a strange way to make such a request, by means of a letter
to the daughter.
In an advocates letter to the respondents advocates dated September 24, 1957 (exhibit 2, No.
7), it is stated that the petitioner
made several subsequent attempts to persuade her to join him.
When asked about these subsequent attempts, the petitioner said they were made direct or
through his daughter. One made through his daughter has been mentioned. I have now to see
what evidence there is of any direct attempts. No evidence has been given of any other oral
requests and it is accordingly necessary to look at the correspondence. In this connection it must
be borne in mind that not all the correspondence is before the court.
On May 29, 1956, the respondent writes primarily about the petitioners proposed visit to
England, and incidentally mentioning repairs required to the house at Nanyuki. The petitioner in
his reply (exhibit 1, No. 5) refers briefly to the question of repairs, but is silent as to any
suggestion that the house should be given up, and that the respondent should come to live at
Gilgil.
In a letter dated July 6, 1956, the respondent begs the petitioner to forego his trip to England
and to try to keep a home together for the girls; and on the same date a letter is sent by her then
advocates demanding that necessary repairs should be done to the house and that the petitioner
should forego his trip (exhibit 2, No. 1). The reply from the petitioners advocates (exhibit 2, No.
2) is silent as to any alleged desertion by the respondent, and contains no request that she should
come to Gilgil. In a letter of October 12, 1956, the petitioner complains that the respondent has
left the Nanyuki house (a point not without significance) and gone to join her daughter in
Tanganyika for some months. The letter asks about the respondents future plans, but contains no
further suggestion that she should come to Gilgil. The reply (exhibit 1, No. 9) stresses the need to
provide a home for the two daughters, and suggests selling the Nanyuki house and buying one in
Nairobi. The letter does not indicate that the writer is conscious of any pressure by the petitioner
for her to join him at Gilgil. In all the correspondence so far mentioned the proposal that she
should do so appears to have been forgotten.
On June 2, 1957, the petitioner writes (exhibit 1, No. 10) saying it is five months since the
respondent left the Nanyuki house for Tanganyika and asking whether she wishes to return and
resume our married life. The natural interpretation of this letter is that the petitioner wishes her
to return to Nanyuki. It is difficult to read into it any suggestion that she should come to Gilgil.
There follow a number of other letters and it is not until the advocates letter of September 24,
1957, that any suggestion is made that the respondent is in desertion by reason of her refusal to
live with the petitioner at Gilgil.
The respondent for her part says that since the petitioner went to live at Pembroke House,
nothing has been said about any accommodation for her at Gilgil. The petitioners explanation is
that he would have found
Page 190 of [1961] 1 EA 185 (CAN)
accommodation if she had offered to come. But apart from the one letter to his daughter, there is
nothing in the correspondence or the evidence of the petitioner which indicates that any further
attempt was made to persuade the respondent to join him after the original invitation, and the
inference I draw from the evidence as a whole is that the petitioner after the respondents first
refusal acquiesced in her remaining at Nanyuki.
On a consideration of all the evidence, both oral and in correspondence, I find that in
September, 1955, a request was made to the respondent to join the petitioner at Gilgil in January,
1956: that the request was made without previous discussion, the possibility only recently having
arisen; and that there is no sufficient evidence that the request was ever repeated, either between
September, 1955, and January, 1956, or afterwards until the advocates letter of September 24,
1957: and that from this failure to follow up the matter it may be inferred that the request was not
in the first place put forward with any strong degree of insistence. The request was not in itself
unreasonable: but neither in my view was the refusal in the circumstances wholly unreasonable.
The petitioner had been content to live apart from the respondent for a number of years, and
there is no suggestion that the respondent was in desertion before January, 1956, when the
respondent was living in the matrimonial home at Nanyuki. Before agreeing to the petitioners
request the respondent would in the circumstances reasonably require to be satisfied that the
petitioner genuinely desired her to come and live with him at Gilgil, and in the absence of any
insistence on his part or any renewal of the request it may well have appeared to her that the
request was not one which he put forward very seriously. Her refusal does not appear to me in
the circumstances to indicate any intention to desert and without such intention there can be no
desertion. Even if the refusal did constitute desertion at that moment, I find that the petitioner
acquiesced in her refusal by his failure to attempt to persuade her to change her mind, and
consent by the other spouse puts an end to desertion. The onus is on the petitioner to show
desertion without cause for a period of three years immediately preceding the presentation of the
petition, and I find that the petitioner has not discharged that onus.
The grounds of appeal are as follows:
1.
The learned trial judge erred in holding that the refusal of the respondent to join
the appellant at Gilgil was not unreasonable and that there was no intention to desert on her part.
2.
The learned trial judge misdirected himself on the facts when considering the
issue whether the refusal of the respondent as aforesaid constituted desertion, in taking into
account the alleged failure of the appellant to attempt to persuade the respondent to change her
mind.
3.
The learned trial judge failed to direct himself adequately as to the effect of the
letters written by the respondent to the appellant in 1955 and 1956 on her intention to desert and
the unreasonableness of her refusal to join the appellant at Gilgil.
4.
The learned trial judge misdirected himself in law and on the facts in holding that
if the respondent by her refusal as aforesaid had been guilty of desertion, the appellant had
acquiesced in the respondents refusal by his failure to attempt to persuade her to change her
mind and thereby put an end to the desertion.
5.
The learned trial judge erred in law in failing to direct himself that once desertion
had been proved to begin, a presumption would arise that nothing had happened to preclude the
appellant from asserting that the respondent continued in a state of desertion.
So far as grounds 4 and 5 are concerned, I think, with the greatest respect
Page 191 of [1961] 1 EA 185 (CAN)
to the learned judge, that they are well founded. In Latey on Divorce (14th Edn.) at p. 132 it is
stated:
Passive acquiescence by one spouse in a state of abandonment forced on him or her by the other
spouse does not terminate the desertion . . . The intention to desert is presumed to continue
unless the deserter proves genuine repentance and reasonable attempts to get the other spouse
back.
In Harriman v. Harriman (3), [1909] P. 123 at p. 148, in a passage which is cited in Latey,
Buckley, L.J., said:
Desertion does not necessarily involve that the wife desires her husband to remain with her. She
may be thankful that he has gone, but he may, nevertheless, have deserted her.
In Bartram v. Bartram (4), [1949] 2 All E.R. 270 at p. 272, Bucknill, L.J., said:
. . . it seems to me that the husband is entitled to say that the desertion once established
continues until it is proved that it has been brought to an end.
And at p. 273, Denning, L.J., said:
Once the period of desertion has begun to run, it does not cease to run simply because the
parties attempt a reconciliation and for that purpose come together again for a time. That was laid
down by Lord Merriman, P., in Mummery v. Mummery, [1942] 1 All E.R. 553 and has never
been doubted since. Indeed, I would say in such a case the period of desertion does not cease to
run unless, and until, a true reconciliation has been effected, as to which see Mackrell v.
Mackrell, [1948] 2 All E.R. 858. Any other view would greatly hamper attempts at
reconciliation, because it would mean that the deserted party would be disinclined to take the
other back for fear of losing his legal rights in case the reconciliation was unsuccessful.
I think there is no doubt on the authorities that the principles are correctly stated in Latey, and the
learned judges finding that:
Even if the refusal did constitute desertion at that moment, I find that the petitioner acquiesced
in her refusal by his failure to attempt to persuade her to change her mind, and consent by the
other spouse puts an end to desertion
cannot be supported.
Counsel for the respondent, in effect, conceded that he could not contest grounds 4 and 5 of the
memorandum of appeal, but he submitted that the decision challenged in ground 4 was obiter and
not material to the decision, and that ground 5 did not arise as the learned judge had held that
desertion did not begin. The decision challenged in these grounds would, of course, be material if
the court were to hold that the learned judge was wrong in holding that desertion had not begun,
but, as I understand it, counsel for the respondent relied solely upon the learned judges finding
that desertion did not begin.
The question whether or not the respondents refusal to join the petitioner at Gilgil did constitute
an act of desertion on the part of the respondent was, of course, the principal issue before the
Supreme Court; and the appellant can only succeed if he can satisfy this court that it ought to
interfere with the learned judges conclusion on that issue. That conclusion, which is challenged
in grounds 1, 2 and 3 of the memorandum of appeal, is largely a conclusion of fact, though
ground 2 involves the application of the same legal principles as are referred to in grounds 4 and
5.
Page 192 of [1961] 1 EA 185 (CAN)
The principles upon which an appellate court will interfere with a finding of fact by a trial judge
were stated by Viscount Simon in Watt (or Thomas) v. Thomas (5), [1947] 1 All E.R. 582 as
follows at p. 583:
Apart from the classes of case in which the powers of the Court of Appeal are limited to
deciding a question of law (e.g., on a case stated or on an appeal under the County Court Acts) an
appellate court has, of course, jurisdiction to review the record of the evidence in order to
determine whether the conclusion originally reached on that evidence should stand, but this
jurisdiction has to be exercised with caution. If there is no evidence to support a particular
conclusion (and this is really a question of law), the appellate court will not hesitate so to decide,
but if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at
the trial, and especially if that conclusion has been arrived at on conflicting testimony by a
tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not
enjoyed this opportunity and that the view of the trial judge as to where credibility lies is entitled
to great weight. This is not to say that the judge of first instance can be treated as infallible in
determining which side is telling the truth or is refraining from exaggeration. Like other
tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of
first instance, when estimating the value of verbal testimony, has the advantage (which is denied
to courts of appeal) of having the witnesses before him and observing the manner in which their
evidence is given. . . . I agree . . . that the true rule is . . . that a court of appeal should attach the
greatest weight to the opinion of the judge who saw the witnesses and heard their evidence, and,
consequently should not disturb a judgment of fact unless they are satisfied that it is unsound. It
not infrequently happens that a preference for A.s evidence over the contrasted evidence of B. is
due to inferences from other conclusions reached in the judges mind rather than from an
unfavourable view of B.s veracity as such. In such cases it is legitimate for an appellate tribunal
to examine the grounds of these other conclusions and the inferences drawn from them, if the
materials admit of this, and, if the appellate tribunal is convinced that these inferences are
erroneous and that the rejection of B.s evidence was due to the error, it will be justified in taking
a different view of the value of B.s evidence. I would only add that the decision of an appellate
court whether or not to reverse conclusions of fact reached by the judge at the trial must naturally
be affected by the nature and circumstances of the case under consideration.
It must further be borne in mind that the burden was on the appellant to prove beyond reasonable
doubt that the respondent deserted him. As to this legal burden of proof, Denning, L.J., said in
Dunn v. Dunn (1), at p. 823:
The legal burden throughout this case is on the husband, as petitioner, to prove that his wife
deserted him without cause. To discharge that burden, he relies on the fact that he asked her to
join him and she refused. That is a fact from which the court may infer that she deserted him
without cause, but it is not bound to do so. Once he proves the fact of refusal, she may seek to
rebut the inference of desertion by proving that she had just cause for her refusal; and, indeed, it
is usually wise for her to do so, but there is no legal burden on her to do so. Even if she does not
affirmatively prove just cause, the court has still, at the end of the case, to ask itself: Is the legal
burden discharged? Has the husband proved that she deserted him without cause?
I think the learned judges essential findings of fact in the instant case may be summarised as
follows:
Page 193 of [1961] 1 EA 185 (CAN)
(1)
That the appellant did offer the respondent a home at Gilgil which was or could
have been made available in January, 1956, asked the respondent to join him there, and the
respondent refused to do so.
(2)
That the respondent did not tell the truth about this offer.
(3)
That he (the learned judge) could find nothing in the evidence to suggest that the
respondent was not ready and willing to have the appellant at the Nanyuki house during his
holidays.
(4)
That there is no evidence of any further attempt by the appellant, after the original
invitation, to persuade the respondent to join him at Gilgil.
(5)
That it is to be inferred from the evidence that after the respondent's first refusal
the appellant acquiesced in the respondent remaining at Nanyuki.
(6)
That from the failure to follow up the matter it is to be inferred that the request
was not in the first place put forward with any strong degree of insistence.
(7)
That the request was not in itself unreasonable.
(8)
That in the absence of any insistence on the part of the appellant or any renewal of
the request, it may well have appeared to the respondent that the request was not put forward
very seriously.
(9)
That in the circumstances the refusal by the respondent was not wholly
unreasonable.
(10) And that therefore the refusal did not indicate any intention on the part of the
respondent to desert the appellant.
It is to be noted that, apart from findings Nos. (1) and (2), which are not challenged, none of the
findings set out above are based on the credibility of the witnesses, but are, in most cases,
inferences drawn from specific facts referred to by the learned judge. The only finding depending
on the veracity of the parties is adverse to the respondent. It is legitimate for this court to
examine the grounds for the inferences drawn by the learned judge (Watt v. Thomas (5)).
Counsel for the appellant has, in effect, challenged the findings numbered (3), (4), (5), (6), (8),
(9) and (10).
As to finding No. (3), that is, that there is no evidence to suggest that the respondent was not
ready and willing to have the appellant at the Nanyuki house during the school holidays, counsel
for the appellant submitted that this amounted to a serious misdirection in that the learned judge
ignored the appellant's own evidence, and ignored or did not appreciate the force of the
correspondence which was exhibited in the case. With respect, I think there is force in counsel's
submission. The appellant in the course of his evidence said:
I remained at Pembroke House School for three to four years. My home was still at Nanyuki,
and I used to return there in the holidays. My relations with my wife gradually deteriorated. I did
not seem to be welcome at home. On returning I used to find my room full of boxes. . . .
Conversation deteriorated. My wife did not refuse to accompany me out. She rarely cooked for
me . . . Relations went from bad to worse . . . I returned to Nanyuki in the holidays at Easter,
1956. I gave my wife the letter which appears as No. 3 in exhibit 1. She asked me to give it to
her as she might wish to go and live elsewhere. Our relations at that time were very bad. We
hardly ever spoke and used to go walks on our own. She rarely appeared at meals . . . I tried to
discuss things without success.
Page 194 of [1961] 1 EA 185 (CAN)
As to the correspondence, the learned judge himself in another part of his judgment said:
A letter written by [the respondent] in August, 1954, is certainly not calculated to make the
petitioner feel that he is welcome in his own home or regarded by his wife with any strong
degree of affection, and subsequent letters in the agreed bundle do nothing to alter this
impression.
This, as it seems to me, is undoubtedly evidence from which it could be inferred that the
respondent was not ready and willing to have the appellant at Nanyuki in the sense of not
making him welcome in the house there. The respondent had stated in her evidence:
In my holidays I and M. got on all right. I was generally busy . . . There was no trouble about
providing meals except that I was very busy.
It may be that the learned judge was not prepared to accept the appellants evidence on this point,
but he does not put the matter on this basis. I think that the passage complained of does amount
to a misdirection, and that it is open to this court to reach its own conclusion on the evidence. In
view of the tone of the respondents letters I have little hesitation in accepting the appellants
evidence to the effect that he was not made welcome by the respondent at Nanyuki. Nevertheless
it has not been suggested that the respondents conduct at Nanyuki was such as to amount to
constructive desertion.
So far as findings Nos. (4), (5), (6), (8) and (9) are concerned, counsel for the appellant argued
that the learned judge was wrong in law in taking into account the question of the lack of
subsequent attempts by the appellant to get the respondent to join him at Gilgil; that the refusal
to join the appellant in Gilgil in January, 1956, either constituted an act of desertion or it did not,
and that the subsequent acts of the parties could not affect the nature of that act; that if the refusal
did constitute an act of desertion the appellant was under no obligation to continue to press the
respondent to join him and there was a presumption that the respondent continued in a state of
desertion; and that the fact that the appellant did not subsequently press the respondent to join
him could have no bearing on whether or not the request at the time it was put forward appeared
a serious one and so could not be a basis for finding that the respondents refusal was not
wholly unreasonable.
I have already dealt with some of these submissions in relation to grounds 4 and 5 of the
memorandum of appeal. To cite again the passage from Latey on Divorce (14th Edn.) p. 132
which is set out above:
Passive acquiescence by one spouse in a state of abandonment forced on him or her by the other
spouse does not terminate desertion . . . The intention to desert is presumed to continue unless
the deserter proves genuine repentance and reasonable attempts to get the other spouse back.
I would further agree with counsel for the appellant that the absence of subsequent attempts to
persuade the respondent to come to Gilgil of necessity could not affect the impression which the
request made had upon the respondent at the time it was made. Nevertheless, I think the learned
judge was entitled to consider the subsequent conduct of the appellant as evidence which might
give some indication of the degree of insistence with which the appellants request had been
made. But it would also be material to this aspect of the matter to take into account the
respondents previous attitude towards the appellant, the fact that the cottage at Gilgil was
allocated to someone else when the respondent refused to come there, and the appellants
evidence that he did go to the Nanyuki house at Easter, 1956, and tried unsuccessfully to discuss
matters with the respondent. These are factors which the learned judge
Page 195 of [1961] 1 EA 185 (CAN)
does not appear to have taken into account. It appears to me that these factors are sufficient to
account for the absence of further requests being pressed by the appellant, and negative any
inference which might be drawn from the absence of such requests.
It follows from what I have said that, with the greatest respect, I think that the learned judges
conclusion numbered (10) above is not founded upon sound grounds. This, however, is not the
end of the matter. Although this court may be satisfied that the grounds on which the learned
judge relied were erroneous, yet before the court can reverse the learned judges decision it must
be satisfied that on the evidence as a whole the appellant discharged the legal burden of proof
that was upon him and established beyond reasonable doubt that the respondent did desert him in
January, 1956.
It was common ground, and was, indeed, accepted by the learned judge, that the present state of
the law as to where the matrimonial home should be is as stated by Denning, L.J., in Dunn v.
Dunn (1). In that case Denning, L.J., said:
I want to say a word also on the proposition that a husband has the right to say where the home
should be, for, indeed, it is the same fallacy in another form. If that were a proposition of law it
would put a legal burden on the wife to justify her refusal, but it is not a proposition of law and I
am sure Henn Collins, J., in Mansey v. Mansey [1940] 2 All E.R. 424, did not intend it as such. It
is simply a proposition of ordinary good sense arising from the fact that the husband is usually
the wage-earner and has to live near his work. It is not a proposition which applies in all cases.
The decision where the home should be is a decision which affects both the parties and their
children. It is their duty to decide it by agreement, by give and take, and not by the imposition of
the will of one over the other. Each is entitled to an equal voice in the ordering of the affairs
which are their common concern. Neither has a casting vote, though, to be sure, they should try
so to arrange their affairs that they spend their time together as a family and not apart. If such an
arrangement is frustrated by the unreasonableness of one or the other, and this leads to a
separation between them, then the party who has produced the separation by reason of his or her
unreasonable behaviour is guilty of desertion. The situations which may arise are so various that
I think it unwise to attempt any more precise test than that of unreasonableness.
Although commenting that the circumstances of two cases are never the same, the learned judge
appeared to find a parallel between the facts in the instant case and those in Dunn v. Dunn (1). I
think, however, that there are important distinctions between the facts of the two cases, and I will
refer to these later. The learned judge also referred to Walter v. Walter (2), and, I think, placed
some reliance on the decision in that case, which is stated in the headnote (set out by the learned
judge in his judgment) as follows:
Held, applying Dunn v. Dunn that in the circumstances neither party was in desertion, for the
law recognisedand nowhere more than in relation to questions of desertionthat marriage was
an institution which depended on give and take on the part of both spouses, and in the present
case both parties had been obstinate, each refusing to see the others point of view, and each
being prepared to see the marriage founder rather than give way.
Unfortunately the learned judges attention does not appear to have been drawn to Hosegood v.
Hosegood (6) (1950), 66 T.L.R. (R.) 735, where the decision in Walter v. Walter (2), was
disapproved. In Hosegood v. Hosegood (6), Denning, L.J., said at p. 739:
Page 196 of [1961] 1 EA 185 (CAN)
I am not going to assert that the husband had a legal right to require his wife to come to
Salisbury: he had nothing of the kind. These matters, as I said in Dunn v. Dunn (64 The Times
L.R. 570, at p. 572: (1949) P. 98, at p. 103) are to be settled by agreement, by give and take, and
not by the imposition of the will of the one over that of the other. I repeat what I said there, that
neither has a casting vote, though to be sure they should try so to arrange their affairs that they
spend their time together as a family and not apart. If such an arrangement, however, is
frustrated by the unreasonableness of one or the other, as if one party unreasonably refuses to
join in a home reasonably proposed by the other, he or she may well be presumed to intend to
bring the married life to an end and thus be found guilty of desertion. Only the other day we had
a case where a husband unreasonably refused to set up a home for his wife away from his own
mother when he could and should have done so. If he persisted in his refusal, it would be obvious
that the married life would come to an end, and he might then be presumed to intend it.
The only qualification which I would make to what I said in Dunn v. Dunn (supra) is that there
are cases where each party is reasonable from his own point of view but is unreasonable in not
giving proper weight to the others point of view. After all is said and done, the questionwhere
the home should bemust be settled one way or the other: one or other must give way. If each
sticks obstinately to his own point of view, and hence the marriage comes to an end, then,
however reasonable the point of view of each originally, the point may well be reached when
each is unreasonable in not giving way to the other and each may be guilty of desertion. Each
must know full well that, if he or she does not give way, the married life will be brought to an
end; and if each unreasonably persists each may well be presumed to intend to bring it to an end.
I see no reason why the court should be forced to choose between them and say that one only is a
deserter: both may be. In such cases, where more than three years have elapsed, the proper relief
may be a decree of divorce without drawing any distinction between them. I say this because I
am afraid that the last seven lines of my judgment in Dunn v. Dunn (supra) misled Mr. Justice
Willmer in Walter v. Walter (1949) 65 The Times L.R. 680 into thinking that where each is
obstinate neither is guilty of desertion; whereas the truth is that both may be.
I think this makes it clear that what may be reasonable from the point of view of one party may
not be reasonable from the point of view of the marriage as a whole, an aspect which the learned
judge did not consider when he held that the respondents refusal was not wholly
unreasonable.
As the learned judge rightly held, to constitute desertion there must not only be de facto
separation, but an animus deserendi, and the question is whether the evidence establishes this. It
appears to me that the appellants request for the respondent to join him at Gilgil is to be taken
more seriously than the learned judge seemed to think. The learned judge appears to regard it as
a casual suggestion that it would be a good idea if the respondent came to join him,
an isolated request not in the first place put forward with any strong degree of insistence. The
learned judge relies for this conclusion upon the respondents failure to follow up the matter, but
I think the factors I have already indicated are sufficient to explain this failure. Apart from this,
the evidence indicates, not merely a casual request, but some considerable discussions on the
subject. Mr. Hazards evidence, which I can see no reason to reject on this point, is to the effect
that he had discussions with the appellant and the respondent as to
Page 197 of [1961] 1 EA 185 (CAN)
whether she would come to occupy the vacant cottage and it was made clear to her that it was
available if she wanted it. That there were discussions on this subject receives confirmation
from the passage in the respondents letter of December 3, 1955, where she says:
Mrs. Hazard had every right to talk matters over with me about your return to P.H. . . . and the
chance of me living in the cottage.
Further, it appears from Mr. Hazards evidence that there were at the same time discussions about
the possibility of the respondent taking on a teaching job at Pembroke House. It appears to me
upon this evidence that the appellants request to the respondent was far from a casual request,
but was one which was discussed, not only between the parties, but with Mr. and Mrs. Hazard
and included discussions on aspects of her coming to Gilgil such as the possibility of obtaining
employment there. I do not think that the request is to be treated as a mere casual suggestion.
I have remarked that the learned judge appeared to find some parallel between the facts in Dunn
v. Dunn (1), and this case. After briefly stating the facts in Dunn v. Dunn (1), he sets out the
following passage from the judgment of Denning, L.J.:
The decisive matter, to my mind, is that throughout the matrimonial home was at Morpeth and
the wife was ready and willing to have him there on his leave whenever he could get there, and
that is where the family were.
Later, the learned judge says:
Though the petitioner had obtained employment at Gilgil on a contract for at least four years, to
the respondent there was a permanency about the home at Nanyuki which may well have
appeared to be lacking in the proposed new home at Gilgil. That in itself is not a ground for
refusing any change, but it is an element to be considered, as it was in Dunn v. Dunn, and while
complaints were made by the petitioner that when from time to time he returned the respondent
made him unwelcome in various ways, I find nothing in the evidence to suggest that she was not
ready and willing to have the petitioner there during his holidays whenever he could get them, as
was found to be the case with the respondent in Dunn v. Dunn (supra).
As it seems to me, however, the circumstances in this case are altogether different. I have already
discussed and disagreed with the learned judges remark that there was nothing in the evidence to
suggest that the respondent was not ready and willing to have the appellant at the Nanyuki home
during the holidays. Apart from that, the relevant facts in Dunn v Dunn (1), are stated by
denning, L.J., as follows:
She [i.e. the wife] was living with the two children, aged fourteen and seven, in the matrimonial
home at Morpeth. She had never been away from Morpeth except for a few days in 1934. The
husband wanted to uproot them for a stay in wartime at Immingham or Barrow. The stay was to
be of uncertain duration and it might be for a few weeks or a few months. It was to be in rooms.
The wife was deaf and had difficulty in making herself understood by strangers. . . . Her refusal
to go for a short stay elsewhere in the circumstances which I have mentioned, it seems to me,
was not unreasonable.
In the instant case it is true the matrimonial home had been in Nanyuki for a number of years, but
there the parallel between the two cases ceases. In the instant case the children of the marriage
were of age and employed away from home. There was no question of a mere temporary stay in
rooms, but a proposal
Page 198 of [1961] 1 EA 185 (CAN)
that the respondent join the appellant in a suitable house at the scene of his work for a substantial
period, four years. The house in Nanyuki could have been let. There can be no doubt that the
request was, as the learned judge held, reasonable. It may be that the respondent was reluctant to
leave the house in Nanyuki, but, from the point of view of the marriage, I can see very little to
justify the refusal. I would hold that the refusal was unreasonable, and not merely not wholly
unreasonable as the learned judge held.
Even so, however, and though the respondents unreasonable refusal to join the appellant is, as
Denning, L.J., said in Dunn v. Dunn (1) a factor of great weight, it is not, I think, in the
circumstances of this case conclusive. There was still the house in Nanyuki to which the
appellant could go in the holidays, and the refusal of the respondent to go to Gilgil need not have
been accompanied by the necessary animus deserendi on her part. To establish the animus
deserendi the appellant relies on the tone of the respondents letters. I have already discussed
these and concluded that they support the appellants evidence that he was not welcome at the
house in Nanyuki. But this does not necessarily mean that the respondent had already, prior to
January, 1956, determined to bring the matrimonial consortium to an end. As I have said, it has
not been suggested that her conduct amounted to constructive desertion. Relations between the
parties at that stage may have been strained, but I find it difficult to say on the evidence that there
had been a break between them. And, if there had not been a break, it is difficult to infer an
appreciation on the part of the respondent that the appellant would not continue as before to treat
the Nanyuki house as the matrimonial home. It is to be noted that in fact the appellant did return
to the Nanyuki house in April, 1956. The mere intention to continue the existing state of affairs,
unpleasant as they may have been, hardly suffices to establish an animus deserendi on the part of
the respondent. I think that before an animus deserendi can be inferred there must be evidence to
indicate that the respondent realised that by her refusal to go to Gilgil she would be putting an
end to the matrimonial consortium. The learned judge, correctly in my view, appreciated this,
though, as I have indicated above, I think he underestimated the force of the invitation to the
respondent to join the appellant at Gilgil, partly, at least, on grounds which I do not think should
legitimately be considered. Nevertheless, allowing full weight to that invitation, I still feel that
the evidence falls short of establishing an animus deserendi on the part of the respondent when
she refused the invitation. I have reached this conclusion with considerable hesitation as I think
the tone of the correspondence does go some way towards showing that the respondent did not
intend to resume normal matrimonial relations and that she was insincere in her requests to the
appellant to give up his work and return to Nanyuki permanently. However, the burden of proof
lies on the appellant, and it is a heavier burden than that which lies on a party to an ordinary civil
action. I do not think the evidence he has led suffices to discharge this burden.
It follows that I think the appeal should be dismissed with costs.
Gould JA: I have had the advantage of reading the judgment of the learned Vice-President. Like
him, I find the case one of doubt and difficulty and for the very reason that I am left in doubt I
must find that the appellant has not discharged the onus of proving either the factum of
separation in the true sense or the animus deserendi. The case turns entirely upon whether the
refusal of the respondent in the latter part of 1955 to take up residence at Gilgil at the beginning
of 1956, was an act of desertion accompanied by the necessary animus and (if so) whether the
respondents state of being in desertion continued. As to the second of those conditions, I would
have no hesitation in saying that if she was in desertion, there is nothing in the oral evidence or
correspondence which would lead me to the opinion that the respondent had made any genuine
offer to return. As to the letter of December 29, 1957, I agree with the opinion
Page 199 of [1961] 1 EA 185 (CAN)
of the learned trial judge when he said I should have been slow to accept that letter as a genuine
offer to return.
It is the first question, i.e. whether the respondent was ever in the position of having deserted her
spouse, that I have found difficult. It is unnecessary again to detail the circumstances, which
have already been set out in full in the judgment of the learned Vice-President, but they leave me
in doubt whether the respondents refusal to go to Gilgil was unreasonable. Certainly it would
appear that such a move might have relieved the anxieties attendant upon her living alone at
Nanyuki in the conditions of the emergency. On the other hand, the Nanyuki house had been
established with the purpose of making it the matrimonial home, and the respondent was
contributing to the joint income by running a nursery school there. I do not think that this one
specific refusal was sufficient to show an animus deserendi in the circumstances. Nor am I
satisfied that the respondents subsequent conduct towards the petitioner, when he visited her for
the vacation in 1956, supplied evidence sufficient to show that that refusal to go to Gilgil was
combined with the intention of bringing cohabitation permanently to an end. There is conflict
between the evidence of the parties as to what took place, and no finding of fact by the learned
trial judge on the question. The evidence indicates at least that the appellant was not made very
welcome, but it has never been suggested (nor could it be on the evidence as recorded), that the
respondents treatment of the appellant at that time would have sustained a plea of constructive
desertion. Something less might perhaps be sufficient, coupled with the refusal to go to Gilgil, to
supply evidence of an animus deserendi but the evidence recorded does not satisfy me that such
an animus was present. Nor does anything in the correspondence, unrestrained and abusive
though it was on the part of the respondent, in my opinion, adequately supply proof of an
intention to desert, at the time of the Gilgil affair.
There is another aspect of the matter to which I would refer. At the end of 1955, the parties had
already, in one sense, been living apart for a number of years. The appellant had been returning
to the matrimonial home for his holidays, and the parties were not separated in the matrimonial
sense of that word. Nevertheless they had by mutual consent (perhaps a reluctant one on the part
of the respondent) adopted a mode of living which entailed their residing for the greater part of
the time in different places in the territory. In my opinion the evidence adduced by the appellant
was insufficient to prove that he did, because of the respondents refusal to join him in Gilgil,
withdraw his consent from the continuance of the mode of life which had been consensually
adopted. It is clear law that if the party alleged to be in desertion left the other with that partys
consent, that is no desertion. The question of consent in this connection is not the same as that of
acquiescence in a definite state of desertion; such acquiescence does not negative the desertion.
But no desertion would arise at all, where two parties had agreed upon a certain mode of life
involving partial de facto separation, and one of them, being asked to take up permanent
residence with the other, stated that he or she preferred to continue the existing arrangement, if
the other party did not withdraw his consent to that arrangement. The appellant and the
respondent had such an arrangement in the present case, and I do not find anything in the
evidence which satisfies me that when the respondent refused to join the appellant at Gilgil he
withdrew his consent to its continuance. In other words I do not find it proved that the factum of
true separation supervened at this stage. The mere request was not in the circumstances enough
in my judgment; had there been acceptable evidence that it was made in such terms as to indicate
that the petitioners consent to the existing arrangement would be withdrawn if the request was
refused, the position would have been different. There was no such evidence. The appellant
might have manifested the withdrawal of his consent
Page 200 of [1961] 1 EA 185 (CAN)
in other ways, but he did not do sohe went as usual to Nanyuki in the first vacation in 1956.
Much later, in the correspondence, there are indications of a change of attitude on his part, but
that does not assist him in proving the factum of separation in late 1955 or early 1956.
For these reasons and for the reasons given in the judgment of the learned Vice-President, I find
that the appellant failed to discharge the onus upon him of proving desertion by the respondent
and would also dismiss the appeal with costs.
Connell J: I also agree.
I have come to the conclusion that the primary act relied on as desertion in the petition, namely
the refusal by the respondent to live with the petitioner at Gilgil in January, 1956, has not been
proved beyond reasonable doubt.
Appeal dismissed.
For the appellant:
CS Rawlins
For the respondent:
GH Mann
For the appellant:
Advocates: Geoffrey White & Co, Nakuru
For the respondent:
Cresswell, Mann & Dod, Nakuru
DOMICILE
Santhumayor v Santhumayor Ferris and another
[1959] 1 EA 204 (HCU)

Division:
HM High Court for Uganda at Kampala
Date of judgment:
4 February 1959
Case Number: 5/1958
Before:
Sir Audley McKisack CJ
[1] Divorce Domicil Abandonment of domicil of origin Acquiring fresh domicil Burden
of proof Evidence Declaration of intention to reside permanently in Uganda.
Editors Summary
The petitioner, a citizen of India, came to Uganda in 1954, on a temporary employment pass. He
was employed as a clerk with a bank in Kampala, his contract being for six years expiring in
1962. In 1957 the petitioner married the respondent who had lived all her life in India until she
came to Uganda. In 1958 he petitioned for a divorce whereupon the respondent applied to the
court to dismiss the petition on the ground that the petitioner was not domiciled in Uganda. The
court heard evidence on this issue from which it was established that the petitioner had all his
family ties in India and had taken no positive step which would point to an intention to remain in
Uganda indefinitely, but he had declared his intention to remain in Uganda permanently to two
individuals who gave evidence to that effect.
Held the burden of proving a change from the domicil of origin to a domicil of choice is not
light and taking all the factors into consideration the petitioner had failed to prove that he had
acquired a Uganda domicil with that perfect clearness which English cases prescribe as
necessary before the court can accept that the domicil of origin has been lost.
Petition dismissed.
(1) Zanelli v. Zanelli (1948), 64 T.L.R. 556.
(2) Boldrini v. Boldrini, [1931] All E.R. Rep. 708; [1932] P. 9.
(3) Cruh v. Cruh, [1945] 2 All E.R. 545.
(4) Will v. Will, Uganda High Court Divorce Cause No. 3 of 1954 (unreported).
Page 205 of [1959] 1 EA 204 (HCU)
Judgment
Sir Audley McKisack CJ: This is an application to dismiss a petition for divorce on the ground
that the petitioner is not domiciled in Uganda. The application came before Sheridan, J., in
chambers on September 30, 1958, and was adjourned by him into court for evidence to be taken
on this issue. Evidence was heard on January 16, 1959, and was given by the petitioner and two
witnesses called by him. There was no evidence called on behalf of the respondent, but Mr. Hunt
argues that the petitioner has failed to discharge the onus of proving that he has changed his
domicil of origin and acquired a new domicil in Uganda.
The facts are as follows. The petitioner was born in India in 1925, and is a national of the
Republic of India. He came to Uganda in 1954, having been allowed to enter the country by
virtue of a temporary employment pass which had been issued to him by the Uganda
immigration authorities. The employment was as a clerk with a branch of a bank in Kampala,
and he has a contract of employment with the bank which is for the duration of six years,
expiring in 1962. For the first two years of his residence in Uganda his employment with the
bank was on a more temporary basis. His contract contains no provision for renewal, but he has
hopes of obtaining another contract with the bank when the present one expires. His contract
entitles him to four months vacation leave at the end of the six years. He also follows another
occupation, outside the hours of his employment in the bank, that of doorkeeper at a cinema.
The temporary employment pass which I have mentioned is his authority for remaining in this
country, and entitles him to do so for so long as the pass remains valid. Under the Immigration
(Control) Ordinance (Cap. 43), and the regulations made there under, a temporary employment
pass may be issued in the first instance for a period not exceeding four years, and is thereafter
renewable at the discretion of the immigration authorities for a further period, or further periods,
but so that the total validity of the pass shall not exceed eight years (see reg. 19 (3) of the
Immigration (Control) Regulations, Vol. VII, Laws of Uganda, p. 925, as subsequently
amended). The position, therefore, is that, unless in the meantime he obtains some other
authority for remaining in Uganda, his temporary employment pass cannot have any validity
beyond 1962, and he cannot then lawfully remain in Uganda.
The petitioner married, in 1957, a girl whose home was not in Uganda, and who came from
India.
The petitioners parents were born in India and have never left there. All his brothers and sisters
are in India. In Kampala he shares the occupation of a house with an Indian family.
In his evidence the petitioner has stated that he intends to reside permanently in Uganda, and he
gives as his reasons for that intention his liking for the country and the fact that he finds
economic and other conditions in Uganda preferable to those in his country of origin. Of the two
witnesses whom he called, one was a friend who says the petitioner has often told him that he
would like to settle in Uganda permanently. The other is the manager of the cinema where the
petitioner works in the evenings, and he testifies that the petitioner has sometimes gone to him
for advice and when so doing has stated that he wanted to settle in Uganda because he had better
prospects here than in India.
I do not find this an easy case to decide. The burden of proving a change from the domicil of
origin to a domicil of choice is not a light one. The fact of the petitioners residence in Uganda is,
of course, amply proved, but it is otherwise with the question of his intention. He does not appear
to have taken any of the steps which the English cases point to as evidence of intention. He has
not, for example, changed his nationality or bought land here. But it is to be remembered that he
is still in his thirties, and his employment is not such that he is as yet likely to be in a position to
buy a house or land in this country.
Page 206 of [1959] 1 EA 204 (HCU)
The points in support of the petitioner are, first, that he has stated in the witness box his intention
of staying here indefinitely and not returning to India; but the cases show that such statements do
not carry very great weight. Secondly, his witnesses have testified that his intention was declared
to them or, at any rate, that his wishes as to his future were so declared. Thirdly, there is no proof
of his having taken any step inconsistent with the intention to remain here. And fourthly, I accept
that he finds his employment and other conditions in this country more congenial than those in
his country of origin.
But a man who would like to make a particular country his home does not, of course, necessarily
intend to do so. And I think Mr. Hunt is right in saying that the petitioner has taken no positive
step which would point to his having an intention to remain in Uganda indefinitely. There is also
the fact that he still has all his family ties in India, and that the woman he married lived all her
life in India until he brought her to Uganda. The declarations he made to the friend and the
employer who gave evidence are somewhat weakened in their effect by the petitioners own
statement in cross-examination that he never discussed with any friends his intention to settle in
Uganda.
As to his employment, this is temporary and not permanent, though the petitioner has hopes of
obtaining a further contract with the bank. The contract he has at present does not provide for his
being employed always in Uganda, but permits of his being sent to branches of the bank
elsewhere in East Africa, so that he may at any time cease to reside in Uganda.
His status under the immigration law is also material. The English cases show that an alien
whose residence in England is merely permissiveor even precariousmay, nevertheless, have a
domicil of choice in England (see Zanelli v. Zanelli (1) (1948), 64 T.L.R. 556, Boldrini v.
Boldrini (2), [1932] P. 9, and Cruh v. Cruh (3), [1945] 2 All E.R. 545). But the position is not
quite the same in Uganda. As I have said, his temporary employment pass cannot be renewed
after the expiration of eight years, and his departure from this country will then become
obligatory unless he has meanwhile succeeded in obtaining a different status under the
Immigration Ordinance. The petitioner admits that he has so far taken no step to that end, though
it would have been open to him to have done so.
Two other points relied on by Mr. Hunt do not lend much support to his case. The Succession
Ordinance (Cap. 34) has provision whereby a person who has been resident in Uganda for at
least a year
may acquire a domicil in Uganda by making and depositing in some office in Uganda . . . a
declaration in writing under his hand of his desire to acquire such domicil
(s. 11). Mr. Hunt says that this is another step which the petitioner might have taken, but did not
take. I cannot, however, attach importance to this fact, since it was held in Will v. Will (4),
Uganda High Court Divorce Cause No. 3 of 1954 (unreported), that that provision was relevant
only to matters of intestate or testamentary succession. Nor do I consider it counts against the
petitioner that, when he gets leave from the bank, he intends to spend it in India.
Taking all the factors into consideration, I come to the conclusion that the petitioner has failed to
prove that he has a Uganda domicil with that perfect clearness which the English cases
prescribe as necessary before the court can accept that the domicil of origin has been lost.
Consequently, the petition must be dismissed with costs.
Petition dismissed.
For the petitioner:
ES Mbazira
ES Mbazira, Kampala
For the respondent and co-respondent:
RE Hunt
PJ Wilkinson, Kampala
ELECTIONS
Mbowe v Eliufoo
[1967] 1 EA 240 (HCT)
Division:
High Court of Tanzania at Arusha
Date of judgment:
10 March 1966
Before:
Georges CJ and Bannerman J
[1] Elections Validity Onus on petitioner Meaning of affect the result Appointment of
polling agents invalid Non-providing of ballot papers Allegations of threats National
Assembly (Elections) Act 1964, s. 99 (T.) National Assembly (Elections) (Amendment) Act
1965, s. 6 (T.).
[2] Statute Construction Proof to the satisfaction of the Court Meaning of affect the
result National Assembly (Elections) Act 1964, s. 99 (T.).
[3] Practice Evidence Onus of proof on the petitioner National Assembly (Elections) Act
1964, s. 99 (T.).
Editors Summary
The unsuccessful candidate in the Kilimanjaro West Hai constituency in the National Assembly
elections petitioned for an order that the elction was null and void. The grounds relied on
included (i) that the polling agent was appointed by the working committee of the District
Executive Committee and not by the District Executive Committee as provided by the National
Assembly (Elections) (Amendment) Act 1965, s. 6; (ii) that voters who wished to vote for the
petitioner were informed that the supply of ballot papers was exhausted; and (iii) that members
of T.A.N.U. Youth League organized a campaign on behalf of the respondent and used threats to
influence electors into voting on behalf of the respondent.
Held
(i)
the term proved to the satisfaction of the Court as used in National Assembly
(Elections) Act No. 11 of 1964, s. 99, meant that where a reasonable doubt existed, then it was
impossible to say that one was satisfied, and the standard of proof in this case must be such that
one had no reasonable doubt that one or more of the grounds set out in s. 99 had been
established;
(ii)
affected the result means not only the result in the sense that a certain candidate
won and another candidate lost. The result may be said to be affected if, after making
adjustments for the effect of proved irregularities the contest seems much closer than it appeared
to be when first determined;
(iii)
the appointment of the polling agents was bad but the non-compliance with
National Assembly (Elections) (Amendment) Act 1965, s. 6, was not substantial and did not
affect the result of the election;
(iv)
consequent on the exhaustion of the supply of ballot papers, no voting could take
place for three quarters of an hour but this was not a substantial non-compliance within the
meaning of National Assembly (Elections) Act 1964 s. 99 (2) (b);
(v)
the allegations of threats to electors by members of the T.A.N.U. Youth League
had not been established by the evidence;
(vi)
herefore, none of the grounds set out in National Assembly (Elections) Act 1964,
s. 99 (2), had been proved.
Petition dismissed.
(1) Bater v. Bater, [1950] 2 All E.R. 458.
(2) Re Kensington North Parliamentary Election Petition, [1960] 2 All E.R. 150.
Page 241 of [1967] 1 EA 240 (HCT)
Judgment
Georges CJ, read the following judgment of the Court: This is a petition by Mr. Aikaeli Alphayo
Mbowe, one of the unsuccessful contestants in the elections held in the constituency of
Kilimanjaro West Hai on September 26, 1965. There were two candidates, the petitioner and the
respondent. The number of voters in the list was 30,889; the respondent polled 20,213 and the
petitioner 6,393; the majority was 13,820. As far as we are concerned here in Tanzania, the
relevant section dealing with election petitions is National Assembly (Elections) Act, No. 11 of
1964, s. 99. The Act states four grounds and says that the election of the candidate as a member
shall be declared void on any of the following grounds which are proved the satisfaction of the
court.
There has been much argument as to the meaning of the term proved to the satisfaction of the
court. In my view, it is clear that the burden of proof must lie on the petitioner rather than on the
respondent, because it is he who seeks to have this election declared void. And the standard of
proof is one which involves proof to the satisfaction of the court. In my view, these words in
fact mean the same as satisfying the court. There have been some authorities on this matter and
in particular there is the case of Bater v. Bater (1). That case dealt not with election petitions, but
with divorce, but the statutory provisions are similar, i.e. the court had to be satisfied that a
matrimonial offence had been proved. In this case, in my view, that we have to be satisfied that
one or more of the grounds set out in s. 99 (2) (a) has been established. There Denning, L.J., in
his judgment took the view that one cannot be satisfied where one is in doubt. Where a
reasonable doubt exists, then it is impossible to say that one is satisfied, and with that view I
quite respectfully agree and say that the standard of proof in this case must be such that one has
no reasonable doubt that one or more of the grounds set out in s. 99 have been established.
There is also the question of another statutory phrase, affected the result of the election, which
occurs in s. 99 (b). The section reads as follows:
Non-compliance with the provisions of this Act relating to elections, if it appears that the
election was not conducted in accordance with the principles laid down in such provisions and
that such non-compliance affected the result of the election.
In this case there is an English provision which is substantially the same and which was
discussed in the case of Re Kensington North Parliamentary Election Petition (2) The English
provision is s. 16 (3) of the Representation of the People Act, 1949, and reads as follows:
No parliamentary election shall be declared invalid by reason of any act or omission by the
returning officer or any other person in breach of his official duty in connection with the election
or otherwise of the parliamentary elections rules if it appears to the tribunal having cognizance of
the question that the election was so conducted as to be substantially in accordance with the law
as to elections, and that the act of omission did not affect its result.
There we have exactly the same phrase used, affect the result, in one case the act or omission,
in this case non-compliance, and the election court, which was presided over by Streatfeild and
Slade, JJ., took this point of view:
Even if the burden rested on the respondent, I have come to the conclusion that the evidence is
all one way. Here, out of a total voting electorate of
Page 242 of [1967] 1 EA 240 (HCT)
34,912 persons who recorded their votes, three, or possibly four, are shown by the evidence to
have voted without having a mark placed against their names in the register and each of them
voted only once. Even if one was to assume in favour of the petitioner that some proportion of
the remainder of 111 persons, whom we have not seen, were in somewhat similar case, there
does not seem to be a shred of evidence that there was any substantial non-compliance with the
provision requiring a mark to be placed against voters names in the register; and when the only
evidence before the court is that of the only three, or possibly four, people who are affected in
that they recorded their votes without having a mark placed against their names, each voted only
once, one cannot possibly come to the conclusion that, although there was a breach of the
statutory rules, the breach can have had any effect whatever on the result of the election. Even if
all the 111 were similarly affected, it could not possibly have affected the result of this election;
therefore, although there was a breach in regard to the matter set out in para. 3 (i) of the petition
in the omission to place a mark against certain names in the register, I should be prepared to say
that there was a substantial compliance with the law in this respect governing elections and that
omission to place a mark against the names did not affect the result.
In my view in the phrase affected the result, the word result means not only the result in the
sense that a certain candidate won and another candidate lost. The result may be said to be
affected if after making adjustments for the effect of proved irregularities the contest seems
much closer than it appeared to be when first determined. But when the winning majority is so
large that even a substantial reduction still leaves the successful candidate a wide margin, then it
cannot be said that the result of the election would be affected by any particular non-compliance
of the rules.
I turn now to the evidence in this particular case and the various grounds alleged in the petition.
No evidence whatsoever has been led as regards ground (e), i.e. there is no evidence that the
petitioner was not accorded equal and fair opportunity in the organisation and conduct of the
election campaign by the members of the District Executive Committee of the party, as provided
by the National Assembly (Elections) (Amendment) Act, 1965, s. 39 (1) (3). This ground does
not, therefore, merit further consideration.
I will next deal with para. (c), that the polling agents were appointed by the area secretary and
not by the District Executive Committee as provided by the National Assembly (Elections)
(Amendment) Act, 1965, s. 6. It was not established that the polling agents were appointed by the
area secretary, but it was in fact established that the polling agents were nominated by the
working committee of the District Executive Committee. This is a different body from the
District Executive Committee as can be seen from a study of para. C of Schedule I of the Interim
Constitution of Tanzania. This is the constitution of T.A.N.U. It is quite clear also that the
District Working Committee had no power to appoint these agents. The power was vested in the
District Executive Committee and they had no authority to delegate that power to another body.
In the circumstances, the appointment of the polling agents was bad. In fact, the polling agents
did attend at the booths but were later removed. There are two versions as to why they were
removed. Mr. Siyovelwa told us that they were removed because Mr. Aikaeli complained and he
thought that it was better in the circumstances to remove them. The returning officer told us that
he had removed them because the list had not been sent to him in time and he thought the
appointment was irregular. With this view I cannot agree. If the polling agents had in fact been
appointed by the District Executive Committee, the mere failure to inform the returning officer in
time of the appointments could not have invalidated them. In this case, of course, the
appointments were bad because they were made
Page 243 of [1967] 1 EA 240 (HCT)
by the Working Committee. In the event, however, the agents were removed possibly at the
request of the petitioner himself. There is no allegation of personation. The agents are placed at
the polling station to help detect personation. There is nothing to suggest that there was any
personation. I would hold, therefore, that there was a non-compliance with the Act, in my view
not substantial, and there is no evidence to show that such non-compliance affected the result of
the election.
I will next deal with ground (b), The voters who wished to vote for the petitioner or the Jembe
sign which represented your petitioners sign, were informed that the ballot papers were
exhausted. Two witnesses gave evidence on this point. The first one was P.W.6; he was quite
unsatisfactory as a witness, and in one particular his evidence deserves to be disregarded. He
says that Mr. Aikaeli arrived at about 6 oclock at his polling station bringing some documents,
apparently ballot papers. Mr. Aikaeli should, therefore, have been aware of the situation at that
particular polling station. This would indeed have been an important matter, but Aikaeli in his
evidence made no mention whatsoever of any such incident. That, I think, is more than enough
reason for not relying upon the evidence of Ebrahim Muro as far as the non-providing of ballot
papers at this particular polling station.
There is also the evidence of P.W.9, Omari Mohamed Ngora, who assisted the returning officer.
He says that there was a complaint at Sanya Juu that there was a shortage of ballot papers, and
that was rectified, he says, in three-quarters of an hour. I must say that I am quite unhappy at the
way in which this particular incident was handled. There is no evidence that Mr. Ngora
investigated the matter to find out why there should have been such a run on the ballot papers or
why the station did not, in the first place, receive enough ballot papers to satisfy the number of
people who were expected to vote there. In future it should be ensured that persons who go round
on polling day to supervise stations should make notes and investigate immediately anything
which appears to be irregular or in any way unusual.
Even accepting Mr. Ngoras evidence as it is, it would amount to no more than this, that for
three-quarters of an hour voting could not take place because there were no ballot papers
available, and this is not a substantial non-compliance as to fall within the spirit and meaning of
s. 99 (2) (b).
We now come to allegations (a) and (d), which I shall deal with together, because they are
closely related and they are the most serious allegations in the petition. Each of them would
constitute an illegal practice contrary to the National Assembly (Elections) (Amendment) Act
1965, s. 99. In particular as far as (a) is concerned, had it been proved to our satisfaction it would
have gone so deeply into the root of the whole election that it would be difficult, however large
the majority might have been, to say that it did not affect the result of the election. Several
witnesses came to give evidence on this point. Their evidence deserves some reasonably close
analysis.
There is first of all George Naiman. He says he was a member of the T.A.N.U. Youth League and
that Simbo Solomon spoke to him and five other people, whom he met coming from work on a
particular day and told them that they should canvass voters to vote for Nyumba (House), his
brothers symbol. He threatened deportation to Sumbawanga if they did not comply. It should be
noted that of these six people only two belonged to that constituency and were registered
electors. The other four were not known to George Naiman and apparently did not come from the
district. The other person who came from the constituency, Obiro, who came to give evidence for
the respondent has denied that any such incident took place. Of the two witnesses, Obiro
impressed us as being much more reliable. In any event, Naiman testified that he spoke to only
Page 244 of [1967] 1 EA 240 (HCT)
nine people. He was very busy about his affairs, going to work early in the morning and
returning late. He did not seem to have taken his instructions very seriously. It should also be
noted that one of the persons to whom he is alleged to have spoken was P.W.11, Charles Kiatta.
Charles Kiatta said that Naiman spoke to him, yet Naiman in his evidence never mentioned
Kiatta as one of the persons to whom he spoke. This is a matter of some importance in a case of
this sort as it is obviously desirable to cross-link witnesses in support of each other on any
particular allegation. Kiatta was one of the least reliable witnesses in this case, as he had a clear
motive for untruthfulness. He said that he hoped to take up appointment with the petitioner, Mr.
Aikaeli, at the termination of this petition. Arrangements have been made for him to take up the
job immediately. The discussions leading to the arrangements took up shortly before the case. We
hold, therefore, that Naimans evidence does not carry with it that degree of certainty which it
should carry to enable us to act upon it. We prefer to accept the evidence of Obiro who seems the
more reliable witness. His unreliability as a witness is confirmed by his failure to mention Kiatta
as a person to whom he spoke though clearly he knew Kiatta was a witness in this case.
Next for consideration is P.W. 12, Eliaika Trofum, one of the more alert and intelligent witnesses
who came to give evidence on behalf of the petitioner. His story is a strange one indeed, because
he says that there was intimidation going on actually inside the polling station. This was much
more than was alleged in the petition itself. It is a charge of such grave importance that it would
in the normal course deserve in the pleadings a paragraph all by itself. Failure to set it out
specifically in the petition raises much suspicion as to its truthfulness. Trofums evidence stands
uncorroborated. We hesitate to think that such conduct would have been tolerated by presiding
officer, polling assistant and policeman without complaint. None of them has been called.
Then we have the evidence of P.W. 13, Salehe Mohamed. He is probably the most significant
person, because he says he told some five to six hundred people on the election day that they
should vote for Nyumba rather than for Jembe. He is a very difficult witness to accept because he
appears completely unintelligent. He stated that he wished to vote for Jembe, not because it stood
for any particular person, but because he liked the symbol Jembe anyhow. The fact that it stood
for one candidate or the other did not matter. He would have voted for Jembe quite apart from
what the symbols stood for. He admitted also that he knew that it was wrong to instruct the
voters as he did, and yet he did it with such energy that in a single day he was able to canvass
500-600 people outside the polling booths. He could not remember the names of even one or two
of the persons to whom he spoke though they must all have been persons from his district whom
he knew. This is not the sort of evidence which has the ring of truth on which one can act with
certainty.
Finally, there was Maleko, the last witness for the petitioner. He was interesting in two ways.
Although he had been canvassed, he still voted for Jembe, and he says for his pains he was taken
by the scruff of his neck by the policeman and ejected from the polling booth. On this point his
evidence is contradicted by that of Rabieli. Malekos evidence is also significant in that it shows
that whatever intimidation took place, it cannot be assumed that it was generally successful.
Reviewing this evidence, it is crystal clear that no executive officer, no committee member of the
T.A.N.U. Youth League took any part whatsoever either in canvassing or in issuing instructions
that people should be canvassed. Therefore, to say that T.A.N.U. Youth League organised a
campaign on behalf of the respondent, is, I think, more than a matter of error in the use of words.
It is a misstatement of fact. That particular section in the petition has not been established. The
petitioner has not led any evidence to establish that T.A.N.U. Youth
Page 245 of [1967] 1 EA 240 (HCT)
Leaguers organised a campaign on behalf of the respondent. He has led evidence to show that
about nine T.A.N.U. Youth Leaguers at four particular stations on the instructions of Simbo
Solomon, who is known to be a brother of the respondent and who might well have had an
interest in furthering the respondents success in the election, spoke to electors asking them to
vote for Nyumba on threat of deportation. This cannot and does not amount to an organized
campaign on the part of T.A.N.U. Youth League on behalf of Mr. Eliufoo, and this particular
allegation fails for want of any evidence, even if we accepted the evidence in support of it, which
we do not.
Finally, we come to Mr. Simbo Solomon, the man who is alleged to be the evil genius in this
matter, the person who, it is alleged, has been responsible for all this trouble. The main argument
against him is that by seeking to deny in his evidence the playing of any part whatsoever in the
election, he clearly must be marked out as not speaking the truth. Of course, had he admitted
taking part in the election, he would equally have been criticised for taking any part at all
knowing that his brother was a candidate. Whatever the answer was, some criticism could be
advanced. The evidence given by Mr. Siyovelwa largely explains the position. Mr. Siyovelwa
says that Simbo Solomon, because he was the brother of Eliufoo, was specifically assigned to
work in Vunjo area so that he would be kept away from the area of Kilimanjaro West Hai. This
makes good sense; it is credible in every sense of the word. There again, the way in which
ground (d) is phrased shows that I may call the tendency of the petitioner to exaggerate in his
allegations. He speaks of Simbo Solomon undertaking door-to-door canvassing. There is not the
slightest shred of evidence that Simbo Solomon undertook door-to-door canvassing. Indeed, the
evidence which was led indicates that there was casual contact with people, not by appointment
but by sheer chance. This shows one of two things, either that the complaints made to the
petitioner directly after the elections were quite unfounded, or else that the persons who
complained are now unwilling to come forward to substantiate their complaints. Either of these
hypotheses throws a considerable doubt on the general bona fides of the petitioners charge.
Indeed, I find that such evidence as has been led about Simbo Solomon indicates no more than a
casual contact with some persons, whom he may or may not have known, and a request by him
that they should help his brother.
As regards the allegation that he backed the request with a threat of deportation, I tend to
discount this. Deportation and arrest are two very different things indeed. Arrest is a
comparatively simple thing, but detention and being hidden is a much more serious sort of threat.
And if there had been a threat of deportation and arrest, it is my opinion that that would have
found its way into the petition, because, as I have indicated, the tendency of the petitioner has not
been to understate his case, but rather to overstate it, and when he understates it in a particular
matter, it is of some significance in assessing the general truthfulness of his evidence on that
particular point.
For all these reasons, therefore, I find that allegations (a) and (d) have not been established by
the evidence. In these circumstances, it is not necessary for me to define exactly what the term
affected the result of the election would mean in this particular case, and I would certainly
refrain from doing so, as this is a matter of some difficulty. We would prefer to leave the matter
open in the event that in another petition the facts proved raise this issue more precisely for
determination.
I hold, therefore, I am not satisfied on the evidence that any of the grounds set out in s. 99 (2)
have been proved. The petition stands dismissed, the petitioner to pay the respondents costs.
Page 246 of [1967] 1 EA 240 (HCT)
Bannerman J: I agree with the judgment read by my learned brother, the Chief Justice, both as to
law and the facts, and I have nothing to add. I agree that taking the evidence as a whole the
petitioner has not satisfied the court that any irregularity or non-compliance of law in the election
was such as to have affected the result of the election, and the petition must therefore be
dismissed.
Petition dismissed.
For the petitioner:
S. S. Rao with R. M. Patel, Arusha
For the respondent:
J. R. W. S. Mawalla, Arusha
For the Republic:
M. Bomani (Attorney-General, Tanzania) and F. B. Mahatane (State Attorney, Tanzania)
FRAUD
Ratilal Gordhanbhai Patel v Lalji Makanji
[1957] 1 EA 314 (CAD)
Division:
Court of Appeal at Dar-Es-Salaam
Date of judgment:
15 August 1957
Before:
Sir Newnham Worley P, Sir Ronald Sinclair V-P and Lowe J
Appeal from: H.M. High Court of Tanganyika Crawshaw, J.
[1] Practice Standard of proof Allegations of fraud to be strictly proved No direction by
trial judge as to burden or standard of proof.
[2] Practice Appeal Conflicting evidence Demeanour of witnesses Duty of judge to test
demeanour of witness against whole evidence Power of Appellate Court to draw own
inferences.
Editors Summary
The appellant gave a guarantee on which he was sued by the respondent. Judgment was given
against him ex parte. He then instituted proceedings in the High Court against the respondent for
orders inter alia that the guarantee agreement be rescinded in respect of his liability as guarantor,
that the ex parte decree against him be set aside and that a sum of Shs. 18,322/68 received by the
respondent in attachment proceedings in that case be refunded to him.
The appellants case at the trial was that he was induced to sign the agreement as guarantor by
the fraud of the respondent in falsely representing to him that the guarantee would not be acted
upon or enforced against him and that its only purpose was to bring moral pressure to bear upon
the principal debtor. The appellant alleged that at the time the agreement between the debtor, the
respondent and himself was drawn up and executed, the respondent said to him: I will not ruin
your children. If you sign, Dahyabhai (the debtor) will pay my money. I dont want any money
from you or words to that effect. The appellant further alleged that the respondent had at all
material times no intention of fulfilling this promise. The respondent denied these allegations in
his defence. The trial judge, however, while accepting generally the evidence of the appellant
and his witnesses and rejecting that of the respondent and his witness, found that the
representations alleged were in fact made by the respondent but that they were no more than a
mere expression of intention, without however sacrificing his legal right, an intention on which
the guarantor was not entitled to rely. He accordingly dismissed the suit in toto on the grounds
that the allegations of inducement and fraud had not been substantiated. The appellant appealed
against this decision and contended that the trial judges findings of fact
Page 315 of [1957] 1 EA 314 (CAD)
were wrong and that he (the judge) had also misdirected himself on the law generally. On the
other hand, the respondent also argued that the judges findings of fact could not be supported
having regard to the evidence and the probabilities of the case and that the appellants suit ought
to have been dismissed for failure of adequate proof.
Held
(i)
the trial judges estimate of the credibility of the appellants witnesses was wrong;
there were many other circumstances, apart from manner and demeanour, which showed the
unreliability of the appellant and his witnesses.
(ii)
the trial judge had not anywhere in the judgment expressly directed himself on the
burden of proof or on the standard of proof required. There is no specific indication that the
learned judge had this [referring to the standard of proof] in mind: there are some indications
which suggest he had not.
(iii)
the appellants suit should have been dismissed for failure of adequate proof.
[Decision of Crawshaw, J., affirmed on different grounds.]
Appeal dismissed.
Cases referred to:
(1) Jorden v. Money (1854), 23 L.J. Ch. 865.
(2) Davies v. London and Provincial Insurance Co., Ltd. (1878), 8 Ch. D. 469.
(3) Bold v. Hutchinson, 104 R.R. 201.
(4) Yuill v. Yuill, [1945] 1 All E.R. 183.
(5) The Glannibanta (1876), 1 P.D. 283.
(6) Coghlan v. Cumberland, [1898] 1 Ch. 704.
(7) D. R. Pandya v. R., [1957] E.A. 336 (C.A.).
August 15. The following judgment was read by direction of the court.
Judgment
This was an appeal from a decree of the High Court of Tanganyika which dismissed with costs
the appellant-plaintiffs suit. At the conclusion of the argument we dismissed the appeal with
costs, but stated that we upheld the decree for reasons other than those given by the learned trial
judge in his judgment. We now state our reasons.
In his plaint the appellant asked for orders: (a) that an agreement made between him, one D. V.
Patel, and the respondent should be rescinded in respect of the appellants liability as guarantor
thereunder; (b) that an ex parte decree passed in High Court Civil Case No. 11 of 1954 should be
set aside as against him; (c) that the sum of Shs. 18,322/68 received by the respondent in
attachment proceedings in that case be refunded by the respondent to the appellant; (d) for the
reimbursement of certain small sums paid as court charges by the appellant; (e) general damages
Shs. 20,000/-.
The issues in this case arose in the following manner. The appellant in April, 1953, was doing
business at Dodoma in partnership with D. V. Patel. The latter owed the respondent Shs. 50,000/and was further heavily indebted elsewhere. He had, however, a credit in the partnership of Shs.
83,000/-. We shall for convenience refer to him as the debtor. On April 13, 1953, the respondent
went from Nairobi to Dodoma, accompanied by one V. B. Patel and one N. V. Patel (who died
before the trial) to discuss with the debtor the matter of his debt. The appellant was brought into
the discussions and the agreement above referred to was drawn up and executed by the debtor,
the appellant and the respondent. The operative terms of this agreement were:
(a)
the debtor acknowledged the debt of Shs. 50,000/-.
(b)
he undertook to pay it off by monthly instalments of Shs. 2,000/- beginning on
July 1, 1953, and thereafter punctually on the first day of each month.
(c)
the appellant guaranteed to pay in the event of any default by the debtor.
The appellants case, as pleaded, was that he was induced to sign the agreement as guarantor by
the fraud of the respondent in falsely representing to him that the guarantee would not be acted
upon or enforced against him and that its only purpose
Page 316 of [1957] 1 EA 314 (CAD)
was to bring moral pressure to bear upon the debtor. The plaint alleged that on this occasion the
respondent said
I will not ruin your children. If you sign, Dahyabhai [the debtor] will pay my money. I dont
want any money from you
or words to that effect; further, it was alleged that the respondent had at all material times no
intention of fulfilling this promise. These allegations were denied in the defence.
The debtor failed to pay any instalment and in February, 1954, in High Court Civil Suit No. 11 of
1954 the respondent sued him and the appellant for Shs. 16,000/- being the amount of the
instalments then due and unpaid. The debtor did not defend the suit but the appellant instructed
Mr. Dastur who applied for and obtained leave to defend. Before any defence was filed the
appellant withdrew his instructions and, when the case was called on August 24, 1954, Mr.
Dastur was granted leave to withdraw. Judgment was entered against the debtor and the appellant
ex parte. This is the judgment which the appellant sought to have set aside, on the ground, as
pleaded, that he was induced to withdraw his instructions to defend by the false representation of
the respondent that he would enforce the judgment against the debtor only.
About January 15, 1955, the respondent executed this judgment by attaching the shop goods of
the appellant (who was at that date in India) and the appellants manager paid sums totalling Shs.
18,459/68 to raise the attachment. These are the monies which were claimed in the plaint, the
grounds for claiming a refund being that, before going to India in October, 1954, the appellant
had obtained from the respondent a reiteration of his promise that he would not execute the
decree against the appellant. The defence denied that any such representation was made on either
of these two occasions.
The appellant returned to Dodoma from India in March, 1955, but the plaint in this suit was not
filed until November 5 of that year. In the meantime the respondent had in October, 1954, filed a
second suit for instalments due and unpaid: No. 87 of 1954. No defence was entered and
judgment ex parte was entered on June 5, 1956. A third suit, No. 46 of 1955, is stayed pending
the termination of these proceedings.
The appellants suit was heard in May and June, 1956, and a reserved judgment, dismissing the
suit in toto, was delivered on August 23 of that year. The findings and conclusions in the
judgment can be summarised as follows: The learned judge, accepting generally the evidence of
the appellant and his witnesses and rejecting that of the respondent and his witness, found that
the representations alleged were in fact made by the respondent but that they were:
no more than a mere expression of intention, without however sacrificing his legal right, an
intention on which the guarantor was not entitled to rely.
The judge accordingly found that the allegations of inducement and fraud had not been
substantiated. We feel bound to say, however, that the findings are not free from obscurity and
inconsistency: for instance, the learned judge also states:
there was never any question of the creditor accepting the instalments unless they were
guaranteed and the guarantor must have known this at the time.
Later, he says:
To my mind the creditor could not possibly have meant that he would attach absolutely no legal
value to the guarantee, and what he said did not, I think, certainly on what the guarantor testifies
that he said go as far as that:
and also:
As I have said, he (the guarantor) made the mistake as I see it of trusting the creditor when he
said he would not proceed against him.
In this court, Mr. Dodd based his appeal on the trial judges findings of fact and addressed to us a
long and careful argument on the law contending that the court below had misdirected itself on
the law generally and on the effect of the cases cited
Page 317 of [1957] 1 EA 314 (CAD)
in the judgment: Jorden v. Money (1) (1854), 23 L.J. Ch. 865; Davies v. London and Provincial
Insurance Co., Ltd. (2) (1878), 8 Ch. D. 469; and Bold v. Hutchinson (3), 104 R.R. 201. On the
other side, Mr. Nazareth dealt only with one or two minor points of law and devoted his long and
careful argument to demonstrating that the learned trial judges findings of fact could not be
supported having regard to the evidence and the probabilities of the case, and that the plaintiffappellants suit should have been dismissed for failure of adequate proof. As we were of opinion
that this contention succeeded it is unnecessary to consider Mr. Dodds submissions on the law.
The function and duty of an appellate court which is asked to review the findings of fact of a trial
court are clear. They were fully and authoritatively stated in the oft-cited judgment of Lord
Greene, M.R., in Yuill v. Yuill (4), [1945] 1 All E.R. 183 at p. 188, p. 190. They were also clearly
set out in two earlier decisions of the Court of Appeal: The Glannibanta (5) (1876), 1 P.D. 283 at
p. 287, and Coghlan v. Cumberland (6), [1898] 1 Ch. 704: the relevant passages from these two
cases are cited and applied in D. R. Pandya v. R. (7), [1957] E.A. 336 (C.A.), an appeal heard at
this same sittings of the court and so far unreported. It is with these principles in mind that we
approach our review of the learned trial judges findings of fact.
Oral evidence was given by the appellant and he called two witnesses. One was Mr. J. N.
Pandya, an advocate of the High Court who acted for the debtor throughout and who claimed to
have been present when the first misrepresentations were made on April 13, 1953, and, also,
when the respondent reiterated his assurances in September, 1954, before the appellant went to
India. The other witness was one Pitamber, who claimed to have been present on the latter
occasion. The appellant alone testified to the alleged misrepresentation in April, 1954, whereby
he was induced to withdraw his defence to suit No. 11 of 1954. He said that this was made over
the telephone. The respondent gave evidence and called V. B. Patel who had accompanied him to
Dodoma on April 13, 1953. There were also twenty-three documentary exhibits, most of which
were letters passing between the advocates of the parties and of the debtor.
There is one preliminary observation which we must make on the learned judges treatment of
this evidence: he does not anywhere in the judgment expressly direct himself on the burden of
proof or on the standard of proof required. 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 is required. There is no specific indication
that the learned judge had this in mind: there are some indications which suggest he had not. For
instance, he says
I regarded Mr. Pandya as an entirely honest witness (which means that in part anyway I was
unable to believe the creditor and his witness) and although he may after this long interval of
time have forgotten or become confused as to some details of the events, I am satisfied that in
substance his evidence is correct.
Again, on the all-important question as to the actual words and extent of the alleged original
false representation, the appellant and Mr. Pandya differed substantially, and on this the learned
judge says
I prefer the guarantors account of what the creditor said to that of Mr. Pandya as, the guarantor
being the more concerned at the time and subsequently, the actual words would be likely to be
the more vividly impressed on his mind.
The judges acceptance of the evidence for the plaintiff appears to be based mainly on impression
and demeanour. We have quoted his appreciation of Mr. Pandyas credibility. Of the appellant he
says
The guarantors trust in the creditor may seem almost incredible, but from the way he gave his
evidence as well as from the consistency of his behaviour I do believe him.
He does not refer to Pitamber: nor, indeed, does he indicate why he disbelieved the
Page 318 of [1957] 1 EA 314 (CAD)
respondent and his witness who were certainly telling the more consistent and credible story.
When the whole of the evidence is considered it is an inevitable conclusion that the learned judge
unfortunately failed to test the accuracy of his impressions by the documentary evidence, by the
glaring improbability of the appellants case and by the contradictions in the evidence.
We will take first the documentary evidence. This includes a number of letters written by Mr.
Pandya to the respondent or to others and relating to the debtors affairs between September,
1953, and September, 1954. Only one of these is referred to in the judgment and even that is not
in the appellants favour. It was Pandya who drew up the agreement on April 13, 1953, and it was
finally on his assurance that the appellant signed as guarantor. The substance of his evidence on
this point was as follows:
The defendant told the plaintiff that if he signed an agreement in which he would become a
nominal guarantor he would not take any action against him. The words of the defendant were:
If you sign it I will not look after you as a guarantor: I will not file any action against you on
this guarantee . . . I am not going to ruin your wife and children.
Also,
When Ratilal (appellant) asked me if he should sign it I said You have heard him give you
promises. I do not think he will betray the trust he has put on his promises.
It is, of itself, sufficiently remarkable that a practising advocate should admit that he persuaded
the appellant to put his hand to a document ex facie creating an obligation on the appellant but
intended, as between the appellant and the respondent, to have no legal effect. But Mr. Pandyas
letters show conclusively that he never put forward this interpretation of the agreement until he
came into the witness box. In a letter dated September 12, 1953, to the respondent, he wrote:
I know you stand in a different position in that you have a written guarantee from Ratilal. You
can have that weapon as a reserve in your armoury, but as I remember, you assured Ratilal that
you would not embarrass him, so if you would also not precipitate action and fall in line with
Van Eeghan, Native Creamery and some other big creditors all will be regularly paid.
On January 12, 1954, he wrote to the respondents advocate:
I know Laljibhai has Ratilal to catch hold of but Ratilal in turn would jump upon Dayabhai.
These are stark facts and I have now only to request you to do all you can to avoid the
catastrophe.
On March 28, 1954, he wrote again, with reference to the appellants intention to defend suit No.
11 of 1954:
Even though Ratilal is the guarantor this money has ultimately to come from the principal
debtor . . . Ratilals defence is never going to stand. . . .
Finally, on July 20, 1954, he again wrote to the respondents advocate:
I think I wrote to you about Ratilals view in the matter. He seems to be labouring under a
wrong impression that he can escape liability under the guarantee in question. I explained to him
everything and I understood him to say that he would see that Laljibhai is paid at least Shs.
1,000/- a month.
The only explanation which Mr. Pandya could offer for these letters was that he was trying to
appease his clients creditors and that if he had said that the guarantee was useless the respondent
would have pounced on his client at once. Comment seems superfluous: if his explanation is
accepted, he is shown to have written lying letters in the exercise of his professional duties.
Whether it is accepted or rejected his credibility is destroyed. There were other inconsistencies
and contradictions in his evidence to which we do not propose to refer. If his evidence is
rejected, as we think it should have been, the main corroboration of the appellants case goes
with it.
Page 319 of [1957] 1 EA 314 (CAD)
We turn now to the appellants own evidence, the outstanding feature of which is its glaring
improbability. It was unfortunate that at the most crucial points his testimony was given in
response to blatantly leading questions and that his advocate, Mr. Dastur, took over the
interpretation. This was apparently done because the translation by the court interpreter was
unsatisfactory at that stage: nevertheless the remainder of this witnesss evidence seems to have
been satisfactorily interpreted. But whatever the reason for this unusual procedure, the
appellants evidence as to what was said by the respondent on April 13 differed considerably
from Mr. Pandyas account, as the trial judge noted. The substance of the appellants evidence on
this point as recorded in the judges notes is:
I signed Ex. A when Pandya said that if I signed he did not think I would have to pay as D. V.
Patel would pay. The defendant said I am not going to kill your children, by which I took him
to mean he would not demand money from me.
According to the shorthand transcript he also said:
I did not believe him at first but when Mr. Pandya said that, after requesting (? being requested)
four or five times, I should sign. If he (the respondent) was going to court, I (i.e. Pandya) was
prepared to swear.
There were, of course, good reasons for the appellant signing the guarantee. Apart from any
desire to assist the debtor, the appellant may well have thought that unless the respondent could
be induced to hold his hand, the sudden withdrawal of Shs. 50,000/- or more from the
partnership would be embarrassing. He is a business man of mature age and experience and it
would be surprising enough if he were taken in by the assurance that his guarantee was required
merely to bring moral pressure to bear on the debtor. The learned judge thought he might have
been influenced by the great wealth of the respondent and by their being members of the same
Indian community. Let us assume that these factors operated to over-persuade the appellant on
April 13. How is it credible that they could have survived the respondents subsequent bad faith?
The reason the appellant gave for having withdrawn his instruction to defend suit No. 11 of 1954
stretches credulity to the utmost. He said that, after he had obtained leave to defend, the
respondent put through a long-distance telephone call from Nairobi and said
As I promised you I am not going to sue you . . . If you defend the suit it will take a year before
I get judgment against Mr. Patel and it will be delayed.
The appellant said he was satisfied with this reassurance and so instructed his advocate to
withdraw.
There was no corroboration whatever of this conversation but the learned trial judge thought that
the instructions to withdraw were consistent with its having occurred. No doubt they could be:
but there are other factors inconsistent with this which appear to have been overlooked. It is
surprising, to say the least, that the appellant should so readily have accepted an oral reassurance
from the respondent if the latter had already broken his word by suing the appellant. It is still
more surprising that in his written instructions to his advocate, no mention is made of this
assurance nor any reason given for the withdrawal. Nor could the appellant attempt to explain
why his defending the suit should delay ex parte judgment against the debtor.
The third occasion on which the appellant alleges he was deceived was, as we have said, in
September, 1954, before he left for India. On September 6, the respondents advocate sent to the
appellant and to the debtor identical letters referring to the agreement and guarantee, to the
unsatisfied judgment in suit No. 11 of 1954 and demanding payment of all further outstanding
instalments to date. It is common ground that about ten days later, the appellant and Pandya
made a special journey by car to Nairobi to see the respondent on this matter. The witness
Pitambar accompanied them but there was a conflict of evidence as to whether or not he was
present at the ensuing discussion.
Page 320 of [1957] 1 EA 314 (CAD)
There was also a dispute as to what was said on this occasion. The respondents evidence was
that only the appellant and Pandya came to him and asked him to reduce the instalments to Shs.
1,000/- a month, he refused and they went away. The appellant swore that he, Pandya and
Pitambar were all present, that he asked the respondent what was the meaning of the advocates
letter and respondent replied:
Dont you worry about it. You go to India. I will fulfil my promise which I have given to you.
He understood by this that even if they got judgment they wouldnt proceed against me.
Nevertheless, he said, he was very dissatisfied but did not expect an attachment to be made. His
version of what took place was supported by Pandya and Pitambar, although they both said that
the appellant came away very pleased. Mr. Pandyas oral evidence was, as before, inconsistent
with the documentary evidence. On September 29 he wrote to the respondents advocate
concerning this visit:
I had been to Nairobi for a few hours visit when, at Ratilals request I accompanied him. My
purpose in going with him was to explain Dahyabhais position to Laljibhai and no more. We met
Laljibhai, but according to me, the visit was abortive.
Ratilal had a few words with him in private and I dont know what took place between them.
There is, of course, in the letter no reference to the assurances which he now claims to have
heard the respondent give to the appellant.
As to Pitambar the respondent denied he was present at all. It is clear that this witness went to
Nairobi in the same car as the appellant and Pandya but primarily on his own business. Mr.
Nazareth drew our attention to numerous contradictions and inconsistencies in the relevant
evidence which, he said, showed clearly that Pitambar was not and could not have been present
at the respondents house. If that were established it would, of course, mean that the appellant
and Pandya had deliberately given false evidence. The learned judge does not refer to Pitambar
at all in his judgment and we have no means of knowing what view he took on this aspect of the
case. We do not propose to go through the evidence on this point in detail: It is difficult for a
court which has not seen and heard the witnesses to form a definite opinion on a point of this
nature. But we can at least say that the evidence on record is such as to create in our minds very
strong doubts as to whether Pitambar was in fact present during the discussion in the
respondents house.
That leaves the appellants own evidence. Although he had already been deceived by the
respondent, he had taken no steps to have the judgment against him set aside. He allowed it to
stand and merely asked that it should not be enforced. But his conduct when he heard of the
respondents second act of perfidy, the attachment of the shop goods, is even more incredible. He
made no protest but sent the following telegram to the respondents advocate:
Please withdraw attachment on auto spares collect by attachment and auction everything of
Dahyabhai rest will pay myself have got thirty-two thousand with me reply.
In acknowledging this telegram on January 10, 1955, the respondents advocate wrote:
I regret that I am unable to accede to your request mentioned above. Your liability as guarantor
is co-extensive with the principal debtor and my client, in view of his experience, is not in a
mood to be influenced by any promise.
Even this categorical assertion of the respondents claim did not evoke any response from the
appellant.
The only comment the learned judge made on this evidence was:
I believe, however, the creditor and Mr. Pandya. Admittedly the guarantor did for a short time
speak alone with the creditor, but I feel satisfied that had his purpose been to reduce instalments
Mr. Pandya would be sure to have known, for their interests would have been mutual.
Page 321 of [1957] 1 EA 314 (CAD)
Here again, the acceptance of this evidence appears to be based merely on impression and there
is complete failure to test this by the documentary evidence, by appellants subsequent conduct
or by the credibility or otherwise of Pitambar.
In contrast to this evidence, full of contradictions and inconsistencies, the respondent and his
witness gave testimony which was simple, credible, unshaken in cross-examination and entirely
consistent with contemporary documents. As we have already said, the learned judge gave no
reason for rejecting their evidence.
We have said enough to show why, after a careful review of the evidence and not disregarding
the judgment appealed from but carefully weighing and considering it, we came to the
conclusion that the learned judges estimate of the credibility of the witnesses was wrong. There
were, as we have attempted to show, many other circumstances, apart from manner and
demeanour, which showed the unreliability of the appellant and his witnesses. In addition there
was the factor of the degree of proof required to establish allegations of fraud to which no
reference at all was made in the judgment.
In dismissing the appeal, we awarded costs thereof to the respondent. We now direct that these be
allowed for two advocates.
Appeal dismissed.
For the appellant:
HG Dodd and PR Dastur
PR Dastur, Dar-es-Salaam
For the respondent:

JM Nazareth, QC and NS Patel
INSURANCE
Bali Sharma & Co, Nairobi
For the respondent:
SC Gautama and Zaher Ahmed
Zaher Ahmed & Co, Nairobi
Kanti & Co Ltd v British Traders Insurance Co Ltd
[1965] 1 EA 108 (CAN)
Division:
Date of judgment:
26 March 1965
Before:
Newbold Ag V-P, Spry and Law JJA
Appeal from: Supreme Court of Kenya Sir John Ainley, CJ
[1] Insurance All risks insurance clause Claim for damage to insured articles Onus on
plaintiff to prove casualty Manner in which such onus can be discharged Damage from
inherent vice an expected risk Allegation that inadequate packing caused damage Onus on
insurance company to prove damage resulted from expected risk.
Editors Summary
The appellant company had insured seven cases of enamelware during transit from Liverpool to
Nairobi with the respondent insurance company. The insurance cover was against All risks of
loss or damage subject to the Institute Cargo Clauses (All Risks). By cl. 1 of these clauses the
insurance attached from the warehouse of the place of commencement of transit to the final
warehouse at destination and by cl. 6 the insurance was against all risks
Page 109 of [1965] 1 EA 108 (CAN)
of loss or damage to the subject-matter insured but did not extend to loss, damage or expense
proximately caused by delay or inherent vice or nature of the subject matter. It was not in dispute
that the enamelware started the journey undamaged but on arrival in Nairobi though the cases
appeared to be in good condition a very high percentage of the enamelware inside was found to
be badly chipped. The appellant company thereupon filed an action in the resident magistrates
court claiming Shs. 1505/50 as estimated damage. At the hearing an insurance surveyor stated in
evidence that the main cause of the damage was motor transport as, due to the continual jolting,
the packing had settled or become loose. He also stated that in his opinion the packing was
probably sufficient for rail transport but insufficient for road transport. The trial magistrate found
as a fact, that transport by road between Mombasa Nairobi was not contrary to the terms of the
insurance policy, that the packing was reasonably adequate, that the appellant company had
proved that some fortuitous circumstance had occurred to the goods and that it was not for it to
show how the goods were damaged, that the respondent company had failed to prove that the
damage was caused by inherent vice in the packing and accordingly gave judgment for the
amount claimed. On appeal, the Supreme Court reversed the trial magistrates decision on the
ground that the appellant had failed to discharge the light onus that lay on it to prove that a
casualty had occurred which resulted in the damage. On appeal to the Court of Appeal, it was
argued for the appellant company that having regard to the facts found by the trial magistrate, the
approach of the Supreme Court was wrong in law in that it placed upon the appellant company
an onus which did not lie upon it.
Held
(i)
from the extent of the damage the court had no doubt that in law the appellant
company had discharged the onus of proving that the damage had resulted from a casualty;
(ii)
in this case, as damage from inherent vice was damage from an excepted risk, if
the respondent company could have shown that the damage was directly caused by inadequate
packing it would have been entitled to judgment; this was precisely what the respondent
company sought to do before the trial magistrate but on the balance of probabilities, was
rejected;
(iii)
the Supreme Court had erred in law in placing on the appellant company any onus
of showing that the damage did not arise from inadequate packing.
Appeal allowed.
(1) British and Foreign Marine Insurance Co. Ltd. v. Gaunt, [1921] A.C. 41; [1921] All E.R.
Rep. 447.
(2) Gee & Graham Ltd. v. Whittall, [1955] 2 Lloyds Rep. 562.
(3) Berk & Co. Ltd. v. Style, [1955] 3 All E.R. 625.
(4) Theodoru v. Chester, [1951] 1 Lloyds Rep. 204.
(5) Electro Motion Ltd. v. Maritime Insurance Co. Ltd., [1956] 1 Lloyds Rep. 420.
(6) Ayoub v. Standard Bank, [1961] E.A. 743 (C.A.).
March 26. The following judgments were read:
Judgment
Newbold Ag V-P: This appeal raises an important point of insurance law. As it is a second
appeal it is, by reason of ss. 72 and 73 of the Civil Procedure Act, limited to matters of law.
The relevant facts are that the appellant company, which I shall call the trader, insured seven
cases of enamelware during transit from Liverpool to
Page 110 of [1965] 1 EA 108 (CAN)
Nairobi with the respondent insurance company, which I shall call the insurer. The insurance
was what is known as an all-risks insurance and was against All risks of loss or damage subject
to the Institute Cargo Clauses (All Risks). The insurance attached while the goods were being
carried by steamer, conveyance, air, parcel post either singly or severaly and by cl. 1 of the
Institute Cargo Clauses (All Risks) it attached from the warehouse of the place of
commencement of transit to the final warehouse at destination. Clause 6 of these clauses reads as
follows:
This insurance is against all risks of loss or damage to the subject-matter insured but shall in no
case be deemed to extend to cover loss damage or expense proximately caused by delay or
inherent vice or nature of the subject-matter insured. Claims recoverable hereunder shall be
payable irrespective of percentage.
On arrival in Nairobi the cases appeared to be in good condition but on being opened a very high
percentage of the enamelware inside was found to be badly chipped. The goods were surveyed
by an insurance surveyor who; in respect of the articles damaged, agreed that the damage
extended to 50 per cent of their value. In his original report he stated that the articles of
enamelware were wrapped in paper in nailed wood cases packed in wood wool and that the
nature and cause of the damage was chipping of the enamel probably due to rough-handling in
transit. In his evidence he stated that at the time he made his first report he thought the goods had
been transported from Mombasa to Nairobi by rail and it was for that reason that he stated the
main cause of damage to be rough-handling. Having learned, however, that the goods were
transported by motor transport, he considered that the main cause of damage was motor transport
as, due to the continual jolting, the packing had settled or become loose. He stated also that in his
opinion the packing was probably sufficient for rail transport but insufficient for road transport,
and that it was unusual to get so much chipping of the enamel.
The resident magistrate before whom the case was heard found as a fact that transport by road
between Mombasa and Nairobi was not contrary to the terms of the policy, that the packing was
reasonably adequate, that the trader had proved that some fortuitous circumstance had occurred
to the goods and it was not for him to show how the goods were damaged, that the insurer had
failed to prove that the damage was caused by inherent vice in the packing; and, accordingly, he
gave judgment in favour of the trader for the amount claimed.
On appeal to the Supreme Court this decision was reversed, the Chief Justice holding that the
trader had failed to discharge the light onus that lay on it to prove that a casualty had occurred
which resulted in the damage. From that decision the trader has appealed. In essence the main
ground of appeal was that having regard to the facts found by the resident magistrate, the
approach of the Chief Justice was wrong in law in that he placed upon the trader an onus which
did not lie upon him.
Both counsel who appeared for the trader, and counsel who appeared for the insurer, in the
course of interesting submissions accepted the law to be that a plaintiff must prove that the loss
in respect of which the claim was made must have been caused by some casualty during transit,
but they differed as to the precise manner in which this could be done. They differed also in
relation to the judgment of the Chief Justice. Counsel for the appellants submitted that the Chief
Justice, without disturbing the findings of fact of the resident magistrate that the packing was
adequate and that there was no inherent vice, had arrived at his decision on a finding that the
plaintiff had not proved a casualty, a matter which was not directly in issue before the resident
magistrate, and which,
Page 111 of [1965] 1 EA 108 (CAN)
having regard to the facts found and to the extent of the damage, it was not open to the Chief
Justice to find. Counsel for the respondents submitted that the finding of no casualty by the Chief
Justice was in effect a finding that the loss was caused by inherent vice due to inadequate
packing and that in any event the plaintiff must prove casualty either directly or by inference
from exceptional damage and that the damage in this case was not exceptional. During the
submissions reference was made to the cases of British and Foreign Marine Insurance Co. Ltd. v.
Gaunt (1), Gee and Garnham Ltd. v. Whittall (2), Berk and Co. Ltd. v. Style (3) and Theodorou v.
Chester (4) upon which last case counsel for the respondent relied strongly.
As Lord Birkenhead said in Gaunts case (1) an all-risks policy does not cover all damage
however caused; the damage must be due directly to some accidental cause of any kind which
occurred during transit. There is thus an onus on a plaintiff to show that the damage occurred
from some act or omission, either deliberate or unintended, which directly resulted in the
damage. It is this act or omission which is usually referred to as a casualty; and a casualty, as
Lord Sumner said in Gaunts case (1), is something which injures the goods from without and
not something which develops from within. An examination of the relatively few authorities on
the position under an all-risks insurance, some of which authorities are not consistent one with
the other, leads me to the conclusion that a plaintiff cannot succeed under an all-risks policy of
the type in question in this appeal unless he proves that the damage resulted directly from some
act or omission deliberate or unintended, to the goods during the period of transit covered by the
policy and that the damage was not such as was natural and inevitable in any circumstances. For
example, it is natural and inevitable that a piece of enamelware should receive minor abrasions
and scratches either from use or from being put in proximity to anything else. Such damage may
be described as fair wear and tear and, as it must inevitably arise quite irrespective of the transit,
it cannot be the subject of a claim under a policy which, even though it covers all risks, does not
cover damage which is in any circumstances inevitable and which, therefore, does not result
from a risk. On the other hand, it is not natural and inevitable that any appreciable chipping
should occur; if it does, then this must have been caused by some act from outside the article.
Again, to take the example referred to by the Chief Justice in his judgment, if a fragile glass is
placed in an iron box for transport, it is neither natural nor inevitable that the glass should be
broken during transit. It may be so wrapped and packed as to enable it to withstand the normal
jolts of the transport without damage, or, though this would be a much more difficult matter, the
box might be so handled as to preclude any jolt which would result in the breaking of the glass
during transport. It is thus neither natural nor inevitable that where a glass is transported in an
iron box the glass should be broken. If it is, the damage will arise from some outside act and this
outside act is a casualty.
As I have said, a plaintiff has to prove that the damage resulted from some casualty during the
period of transport covered by the policy and that it was neither natural nor inevitable. Having
said that, however, the question remains as to how he can prove it. In normal cases he can prove
that the damage was neither natural nor inevitable from the mere nature of the damage; that is, he
proves that it is damage of a kind which has been referred to in the cases as either exceptional or
abnormal. These adjectives do not mean that the damage must be of an extraordinary nature; they
merely mean that the damage is not such as must inevitably arise. The use of the epithets
exceptional and abnormal has, I think, created an impression that before a plaintiff can succeed
he must prove damage of an extraordinary nature; this is not so. Having proved, however, that
the damage is of a nature which is neither natural nor
Page 112 of [1965] 1 EA 108 (CAN)
inevitable, the question still remains as to how a plaintiff is to prove the casualty. It is obvious
that in the vast majority of cases the plaintiff would be completely unable to prove any specific
act or omission which gave rise to the damage. As, however, the policy is against all risks, it is
unnecessary, as Lord Birkenhead said in Gaunts case (1), to show the exact nature of the
casualty. It is sufficient, as Lord Sumner said in the same case, if evidence is given reasonably
showing that the loss was due to a casualty. If, therefore, it is admitted or proved that the goods
were undamaged at the commencement of the period of insurance, that they arrived damaged and
that the damage was of a nature which was neither natural nor inevitable, then the plaintiff has
led evidence from which a casualty may reasonably be inferred and he has, therefore, subject to
any further evidence, proved a casualty. It is at this point, with respect, that I consider that the
Chief Justice erred. The difference between his approach to the onus which lay on the plaintiff
and the approach of the resident magistrate to that some onus is exemplified by the difference
between the approach of Croom-Johnson, J. in the Theodorou case (4) and that of Sellers, J., in
Electro Motion Ltd. v. Maritime Insurance Co. Ltd. (5), a case which was not referred to by
either counsel.
In the Theodorou case (4), Croom-Johnson, J., at the end of a very long judgment said:
In those circumstances, it seems to me that the only possible conclusion at which the court can
arrive is, as I say, that, for some unexplained reason, in some unexplained way, which it is not for
the plaintiff to prove, there was a casualty . . ..
He had, however, during the course of his judgment approached the problem on the basis that the
onus was on the plaintiff to show that on a balance of probabilities the damage had not been
caused by any theoretical way in which, according to the defendant, it could have been caused.
As he said [1951] 1 Lloyds Rep. at p. 238):
It is, I think, for the plaintiff to satisfy me that these theories, if I come to the conclusion that
they are reasonable possible theories, are not right.
In contrast to that, Sellers, J. in the Electro Motion Ltd. case (5) said:
The evidence establishes that the goods complied with the contract when delivered free on
board at Dublin that they arrived damaged in the way that has been indicated and although the
precise instant which caused the damage cannot be ascertained on the evidence before this court,
it is damage in transit which is covered by the policy of insurance . . . That policy covered transit
from warehouse to warehouse and it occurred in the course of that period.
I consider that having regard to the terms of the policy and the speeches in the Gaunt case (1),
the approach of Sellers, J. is correct and that of Croom-Johnson, J. is not. I do not consider that
Gees case (2) is of any assistance on this point as in that case the goods were not proved to have
been undamaged at the commencement of the transport.
On the facts of this case it is not in dispute that the enamelware started the journey undamaged. It
is also not in dispute that on arrival of 360 saucepans and lids 99 were undamaged but 261 were
damaged to the extent of one half of their value and that the percentage of damage of the other
articles was similar. On these facts I have no doubt that in law the appellant had discharged the
onus on him of proving that the damage had resulted from a casualty. Indeed, as Law, J.A. has
pointed out in his judgment, which I have had the advantage of reading in draft, this was
accepted by the parties during the hearing of the case before the resident magistrate.
Page 113 of [1965] 1 EA 108 (CAN)
In this policy, as indeed in almost every all-risks policy, there are exceptions whereby the insurer
excludes liability under the policy if the damage results from a risk which is excepted. In this
case, by cl. 6 of the Institute Cargo Clauses (All-Risks), damage from inherent vice or the nature
of the subject matter was excluded. It is clear that if an insurer seeks to avoid liability on the
ground that the damage resulted from an excepted risk, then the onus is on him to prove that the
damage was a direct result of the excluded risk. It is not, I think, suggested that the damage in
this case occurred from the nature of the subject matter. That exception is intended to refer to
damage which results naturally from within, irrespective of any outside act, though, of course,
any such damage may be augmented by an outside act. An example of such damage would be for
perishable goods to go bad or for certain chemical reaction to take place merely by reason of
exposure to air. This type of damage is frequently referred to as inherent vice. But where, as in
this case, there is a reference both to inherent vice and to the nature of the subject matter, I
understand inherent vice to be somewhat different. I understand it to be a quality in the insured
article which may, though it need not necessarily, result in damage in the circumstances in which
the goods may be expected to be transported. An example of this would be fragile or brittle
articles which, unless adequately packed, will in all probability suffer damage in the normal
conditions to which they would be subjected in the course of transit. Another example is the
propensity which certain articles, such as coal, have to spontaneous combustion under certain
conditions.
As I have said, if an insured package contains an article of such a nature that it will, unless
adequately packed, suffer damage from the conditions to which the package would be expected
to be subjected during normal transit, then in my view such damage would arise from inherent
vice. In this case, as damage from inherent vice was damage from an excepted risk, if the insurer
could have shown that the damage to the enamelware was directly caused by inadequate packing
it would have been entitled to judgment. This is precisely what the insurer sought to do before
the resident magistrate but, on the balance of probabilities, the resident magistrate was not
satisfied that it had succeeded and he therefore gave judgment in favour of the trader. In my view
the resident magistrate was correct in law in placing the onus on this matter on the insurer and in
holding that, as on the facts found that onus had not been discharged and as damage from a
casualty had already been sufficiently proved or admitted, therefore judgment in favour of the
trader followed. With respect, I consider that the Chief Justice erred in law in placing on the
trader any onus of showing that the damage did not arise from inadequate packing.
For these reasons I would allow the appeal, restore the judgment and decree of the Resident
Magistrates Court, set aside the judgment and decree of the Supreme Court and substitute
therefor a judgment and decree dismissing the appeal to the Supreme Court with costs. I would
allow the appellant his costs on the appeal to this court, with a certificate for two counsel. As the
other members of the court agree it is accordingly so ordered.
Spry JA: I agree that this appeal must be allowed. I have reached this conclusion with the
greatest reluctance, as I think that the judgment of the trial court might properly have been
reversed on grounds other than those on which the appeal to the Supreme Court was decided, in
particular, that the learned resident magistrate reached a conclusion on the question whether the
goods were reasonably packed which was so inconsistent with his findings of primary fact as to
amount to an error of law and that he misdirected himself in his approach to the expert evidence,
but there has been no cross-appeal and I do not think it would be proper for this court on a
second appeal to consider questions that have neither been advanced nor argued before us.
Page 114 of [1965] 1 EA 108 (CAN)
I am, if I may say so with great respect, substantially in agreement with the enunciation of the
relevant law contained in the judgment of the learned Vice-President but as the subject is one of
considerable importance, I think I should add certain comments.
It is clear on the authorities that in proceedings under an all-risks marine policy the initial onus is
on the plaintiff to show that a claim lies under the policy. To do this, he must show that the goods
started on their journey in good order and that they either failed to reach their destination or
arrived in a damaged condition. He must either prove that an accident or casualty occurred or
show that an accident should be presumed. The classic authority is the observation of Lord
Birkenhead, L.C., in British and Foreign Insurance Co. v. Gaunt (1), when he said:
We are, of course, to give effect to the rule that the plaintiff must establish his case, that he must
show that the loss comes within the terms of his policies; but where all risks are covered by the
policy and not merely risks of a specified class or classes, the plaintiff discharges his special
onus when he has proved that the loss was caused by some event covered by the general
expression, and he is not bound to go further and prove the exact nature of the accident or
casualty which, in fact, occasioned his loss.
The presumption that an accident has occurred will readily be inferred where it is proved that the
goods were intact at the beginning of the journey and arrived in a damaged condition and where
the nature and extent of the damage is not such as must have been expected by both parties
having regard to all the circumstances. On the particular facts of Gaunts case (1), Lord
Birkenhead said:
The damage proved was such as did not occur, and could not be expected to occur, in the course
of a normal transit. The inference remains that it was due to some abnormal circumstances, some
accident or casualty.
The damage which the parties must be deemed to have expected, sometimes called natural and
inevitable and sometimes fair wear and tear, is not a risk and therefore not covered by the
policy. I do not, with respect, favour the use of the word inevitable, although there is the
highest authority for its use. No damage is inevitable: goods may, and sometimes do, arrive
undamaged. The matter is, I think, one of degree. Some goods are more fragile than others, and
some are more valuable than others. The more fragile the goods, the more desirable it is that they
be packed with care but obviously the time and money devoted to packing must be related to the
value of the goods. It is, I think, for the court to determine on the particular facts of each case
what measure of damage or wear and tear must be presumed to have been expected by the
parties when the contract of insurance was entered into.
The defence to such an action will normally consist either of a denial that there has been a
casualty or of a plea that an exception to the policy applies, or of both, and where an exception is
pleaded, the onus is, of course, on the defence.
Theodorou v. Chester (4), was a case in which the defence was that the damage sustained by the
goods was the ordinary wear and tear incidental to a long journey and was not the result of any
fortuitous circumstance or any peril insured against. The onus was therefore on the plaintiff to
satisfy the court that there had been a casualty and that involved rebutting various alternative
suggestions put forward by the defence.
On the other hand, the cases of Gee and Garnham Ltd. v. Whittall (2) and Electro Motion Ltd. v.
Maritime Insurance Co. Ltd. (5) were both cases where the defence was or included an allegation
of inherent vice. In the former case, the goods were of light metal and very prone to denting and
arrived, as in the present case, in a large number of boxes none of which showed any outward
Page 115 of [1965] 1 EA 108 (CAN)
sign of injury (apart from certain boxes which were dealt with separately in the judgment). There
was no evidence of any accident or of anything unusual concerning the journey. The trial judge
concluded that the damage had occurred either in the course of packing or as a result of defective
packing and held that the onus of proving inherent vice had been discharged. In the latter case,
the defence of the insurers was that damage to a diesel engine, the subject of the claim, had not
occurred during the journey and there was an alternative defence that any damage that had
occurred in transit was due to inherent vice, the engine being already cracked at the time of
shipping. The defence depended entirely on expert evidence that a crack in the engine must have
been antecedent to the loading of the engine on the ship. There was, however, direct evidence,
which the trial judge accepted, that the engine was in good order when it was shipped and there
was evidence, which the trial judge also accepted, which indicated that the engine had received a
severe blow. The trial judge found no difficulty on the evidence in finding for the plaintiff
company against the insurers.
I have dealt somewhat fully with these cases, because I think, with respect, that there is nothing
irreconcilable in the decisions and that they all accord with the general principles I have sought
to set out. Both Gees case (2) and Berk & Co. Ltd. v. Style (3) (which was referred to at all
stages of these proceedings) are clear authority for saying that inadequate packing may constitute
inherent vice.
Law JA: I have had the advantage of reading the judgment of Newbold, Ag. V.-P., with which I
agree. I wish to add a few observations on one aspect of this appeal, and that is the effect, on the
trial of a civil case, of issues which have been properly framed and recorded, as was the case
here.
The appellants (whom I shall refer to in this judgment as the plaintiffs) imported seven cases of
enamel-ware to Kenya from the United Kingdom. These goods were insured for 205 by a
certificate of insurance issued under a policy of marine insurance taken out by the plaintiffs with
the respondents (hereinafter referred to as the defendants). The certificate covered the transit of
the goods at and from Liverpool to Nairobi in respect of All Risks of loss or damage, Subject
to the Institute Cargo Clauses (All Risks) Including War and Strikes risks as per Institute
Clauses. The goods arrived in Nairobi towards the end of February, 1959, having travelled from
Liverpool to Mombasa by sea and from Mombasa to Nairobi by road. In Nairobi there was no
damage to the cases apparent on external examination, but when the cases were opened it was
found that the enamelware in all seven cases had suffered damage by chipping. The defendants
assessor examined the goods on March 4, 1959. He mistakenly assumed that the goods had
travelled from Mombasa to Nairobi by rail. The following extracts are taken from his report
Nature of packing. Pieces wrapped paper all in nailed wood cases packed with wood wool.
External condition on arrival. Sound.
Nature and cause of damage. Chipping of enamel, probably rough handling in transit.
The damage was estimated to amount to Shs. 1575/50. The defendants repudiated liability on the
grounds that the losses are not recoverable under the relative certificate.
The plaintiffs instituted a suit in the Resident Magistrates Court, Nairobi, by filing a plaint
claiming Shs. 1575/50, interest and costs from the defendants, alleging that their goods were
damaged by one of the perils or causes covered
Page 116 of [1965] 1 EA 108 (CAN)
by the certificate and policy of insurance issued by the defendants. The defendants in their
defence pleaded a number of defences, of which the only one which is still material is:
. . . that the loss was not by one of the perils insured against.
At the hearing before the learned resident magistrate, the issue arising out of this defence was
framed in the following terms:
1(a) Are the defendants entitled to refuse to pay the claim on the grounds that there
was an inherent vice in that the goods were insufficiently packed.
This issue was obviously framed with regard to clause 6 of the Institute Cargo Clauses (All
Risks) which formed part of the policy of insurance and which reads as follows:
This insurance is against all risks of loss of or damage to the subject-matter insured but shall in
no case be deemed to extend to cover loss damage or expense proximately caused by delay or
inherent vice or nature of the subject-matter insured . . ..
Counsel for the plaintiffs then submitted that the burden of proof was on the defendants. The
learned trial magistrate is recorded as having said I think Mr. Ransley (counsel for the
defendants) has admitted the onus is on him to prove that the exceptions apply, to which Mr.
Ransley is recorded as having replied Yes. To my mind this admission is of the utmost
importance in deciding this appeal. From the outset the trial proceeded on the basis that the
plaintiffs were relieved of the duty of proving a casualty, or accident, of such a nature as to bring
their loss within the policy and no issue was framed posing the question was the damage to the
goods due to a risk covered by the policy?. On the contrary, the defendants undertook the onus
of proving inherent vice in the goods. The learned resident magistrate, in a carefully considered
judgment, found that the evidence was insufficient for him to find that there was inherent vice in
the goods by reason of insufficient packing. He concluded That being so, the damage was
caused through a risk which was covered by the policy and the insurers should pay. On issue 1
(a) there was no inherent vice.
The defendants appealed to the Supreme Court. The learned Chief Justice allowed the appeal, for
reasons which appear from the following extract taken from his judgment:
Here however were seven cases, all undamaged, the contents of which had behaved in just the
same way. The packing had separated from the goods. On the evidence that was due to
somewhat continued shaking. Upon the only evidence before the learned magistrate it does
seem to me that the most likely cause of that separation was the road journey. There is no
evidence at all that the road journey was other than normal. Given the packing used, the ordinary
incidents of the road journey would, on the surveyors evidence, cause the separation of the
utensils and packing. I say again that the separation could have been caused in other ways, that it
could have been caused by a casualty, but in a difficult case, and with respect to the learned
magistrate, I think that the balance of probabilities lay with the appellants, and that on the whole
of the evidence the respondents failed to discharge the admittedly light onus which lay on them.
For these reasons I allow the appeal.
With great respect, the learned Chief Justice decided the appeal on an issue which was never an
issue at the original hearing before the learned magistrate. As counsel has submitted for the
plaintiffs, there was no issue as to whether or not the plaintiffs had established that a casualty had
occurred, so as to bring their
Page 117 of [1965] 1 EA 108 (CAN)
loss within the terms of the policy. On the contrary, the relevant issue was framed by agreement
of the parties in such a way as to place on the defendants the onus of proving the existence of
inherent vice so as to entitle them to repudiate liability under the policy, and the defendants
counsel is on record as having specifically undertaken to discharge this onus. The learned
magistrate found that the defendants had failed to discharge this onus, and there is nothing in the
learned Chief Justices judgment to suggest that in his opinion they had discharged this onus. The
learned Chief Justice allowed the appeal solely on the ground that the plaintiffs had failed to
discharge the onus of proving the occurrence of a casualty. As to this, I am of opinion that that
onus was discharged, on the evidence, but even if the plaintiffs had not been able to prove a
casualty, the trial, with the agreement of the parties, proceeded on the basis that the defendants
had undertaken the burden of proving that they were entitled to repudiate liability because of
inherent vice, within the meaning of cl. 6 of the Institute Cargo Clauses. This they failed to do.
Where the parties agree an issue, the court should decide the case upon that issue, if it is properly
framed and arises out of the pleadings, as was the case here. As Gould, J.A. (as he then was) said
in Ayoub v. Standard Bank (6) ([1961] E.A. at p. 752):
Mr. Gratiaen submitted that . . . once one specific issue had been agreed upon it was wrong to
take the view that even if the agreement did not create a trust certain other facts not pleaded gave
rise to an independent trust. The court was tied by the agreement between counsel.
I agree that, in the circumstances, what the court had to do was to decide the single issue upon
which counsel had agreed that the success or failure of the action depended . . . it was an
agreement between experienced counsel who had all the facts before them . . ..
In the same way, in the case now under consideration, experienced counsel who had all the facts
before them agreed that the main issue upon which the success or failure of the action depended
was:
1(a) Are the defendants entitled to refuse to pay the claim on the grounds that there
was an inherent vice in that the goods were insufficiently packed.
and counsel for the defendants unequivocally undertook to discharge the onus of proving that
issue. It was never an issue that the plaintiffs should prove that a casualty or accident had
occurred, and it is in my opinion wrong that the plaintiffs should be non-suited for having failed
to prove something which was never made an issue between the parties at the trial.
For these reasons alone I would allow this appeal, set aside the judgment of the Supreme Court
and restore the judgment of the resident magistrate.
Appeal allowed.
For the appellant company:
JM Nazareth, QC and TG Bakrania
Veljee Devshi & Bourania, Nairobi
For the respondent company:
BODonovan, QC and PJ Ransley
MacDougall & Wollen, Nairobi
RES IPSA LOQUITOR
Msuri Muhhiddin v Nazzor Bin Seif El Kassaby and another
[1960] 1 EA 201 (CAZ)
Division:
Court of Appeal at Zanzibar
Date of judgment:
26 February 1960
Before:
Sir Kenneth OConnor P, Sir Alastair Forbes VP and Gould JA
Appeal from: H.M. High Court of Zanzibar Horsfall, J.
[1] Negligence Res ipsa loquitur Motor accident Appellant injured as a result of motor bus
overturning Onus on bus owner and driver to disprove negligence Accident due to tyre burst
Whether onus discharged.
Editors Summary
The appellant sued the respondents for damages in respect of personal injuries suffered by him
when a motor bus in which he was travelling which was owned by the first and driven by the
second respondent overturned when both the offside rear tyres burst. Evidence was led for the
appellant on the speed and control of a bus after a tyre burst, but no evidence on the state of the
road, the bus, or of the burst tyres immediately after the accident. The trial judge accepted the
evidence of the second respondent that he was not driving at an excessive speed and that he had
satisfied himself, before driving, that the tyres were good with tread still on them, and applying
the doctrine of res ipsa loquitur held that the second respondent had discharged the burden of
showing how the accident could reasonably have happened without negligence on his part. On
appeal it was contended for the appellant that (1) the trial judge had erred in disbelieving the
appellant and his witnesses, and ought to have held that the accident was due to excessive speed
and the failure of the second respondent, as driver, to keep a proper look-out, (2) the trial judge
wrongly applied the doctrine of res ipsa loquitur by holding that the burden of proving how the
tyre burst was on the appellant, and (3) the trial judge ought to have held that the onus to prove
how the tyre burst was on the respondents and that on his failing to discharge that onus ought to
have entered judgment against the respondents. Counsel for the respondents while supporting the
decision of the trial judge, contended that as the trial judge had found that the probable cause of
the accident was rough solid stone under the road, the accident should have been found to be
due to circumstances not within the respondents control.
Held
(i)
as to the first ground of appeal, matters of credibility were peculiarly matters for
the trial judge and in the absence of evidence as to the state of the tyres at the time of accident,
the distance the bus travelled after the tyres burst and other relevant facts, it was quite impossible
to say that the trial judges conclusions of fact were wrong.
(ii)
the respondents could avoid liability by showing either that there was no
negligence on their part which contributed to the accident, or that there was a probable cause of
the accident which did not connote negligence on their part, or that the accident was due to
circumstances not within their control; and on the trial judges findings of fact the respondents
had succeeded in establishing these propositions.
(iii)
the court could not accept the proposition that if the immediate cause of the burst
tyre was the rough surface of the road, that in itself established that the accident was due to
circumstances not within the respondents control: the speed of a vehicle in relation to the
particular road conditions was a most material factor and one which normally was within the
control of the driver
Page 202 of [1960] 1 EA 201 (CAZ)
of the vehicle, and there was certainly a duty on a driver to keep a proper look-out
to ascertain the condition of the road and to adapt the speed of the vehicle to it.
Appeal dismissed.
(1) Moore v. R. Fox & Sons, [1956] 1 All E.R. 182.
(2) Barkway v. South Wales Transport Co. Ltd., [1948] 2 All E.R. 460.
(3) Woods v. Duncan, [1946] A.C. 401.
(4) Wing v. London General Omnibus Co., [1909] 2 K.B. 652.
The following judgments were read:
Judgment
Sir Alastair Forbes VP: This is an appeal from a judgment and decree of the High Court of
Zanzibar dated September 19, 1959, dismissing a suit by the appellant as plaintiff claiming
damages in respect of personal injuries suffered by him when a motor bus in which he was
travelling overturned. The first and second respondents, who were the defendants to the suit,
were respectively the owner and the driver of the motor bus in question.
The evidence and findings of fact in the case appear in the following passage from the judgment
of the learned trial judge:
The plaintiff, who sues as a poor person, claims Shs. 4,400/- as special damages and Shs.
10,000/- as general damages for personal injuries, pain and shock caused by the negligence of
the second defendant while driving a bus belonging to the first defendant. It is not disputed that
the plaintiff was a passenger in the bus when it overturned nor that the second defendant was at
the time driving it as servant of the first defendant and in the course of his duties as such.
2.
In his amended plaint the plaintiff relied on the following particulars of
negligence: (1) that the second defendant drove the bus at excessive speed (2) that the second
defendant failed to keep a proper look out and (3) that the second defendant failed in his
statutory duty to provide sound off side rear tyres in the said bus contrary to the provisions of
reg. 22 (6) of the Road Traffic Regulations and (4) in the alternative that second defendant
committed a breach of his statutory duty by driving the said bus at a speed exceeding thirty miles
contrary to reg. 51 (2) of the Road Traffic Regulations. By consent a fifth particular was added
later (viz) that the second defendant was negligent in leaving the steering of the bus and in
jumping off immediately after the tyres burst with the result that the bus was left uncontrolled
and unattended.
3.
In proof of that part of his case which dealt with the question of liability the
plaintiff called himself and three other passengers, who were inside the bus and involved in the
accident, as witnesses. He called a final witness Behari Joshi, a senior mechanic in the P.W.D. on
the question of speed and controlling a bus after a tyre burst, but unfortunately he neglected to
call any evidence of the state of the road or of the bus or of the burst tyres immediately after the
accident. Such evidence was available, since I am informed that the police visited the scene
immediately after the accident and that the bus itself was examined by one D. H. Nassor.
Counsel for the plaintiff did not think it necessary to bring this man from Pemba to give evidence
or to take his evidence on commission.
Page 203 of [1960] 1 EA 201 (CAZ)
4.
The plaintiff and his fellow passengers in the bus failed to impress me as having
reasonable ability to gauge the speed at which the bus was travelling. One of them purported to
have read the speedometer at 60 m.p.h. and another agreed in cross-examination that 60 m.p.h.
would be a fair estimate. The other witnesses put it as a great speed. As one expressed it:
Nothing except speed caused the accident. I do not believe that one witness read the
speedometer. I think that the circumstances surrounding the overturning and the blow out have
caused the witnesses either intentionally or otherwise to exaggerate the speed at which the bus
was travelling. There is no evidence of the distance the bus travelled after the blow out, no
evidence of the violence of the impact of the wheel rim with the road surface after the tyre
subsided, no evidence how far, if at all, the bus dragged on its side.
I dont accept the evidence that the second defendant jumped out nor that he failed to keep a
proper look out. Mr. Chowdharys submission on this last was that the second defendant stated in
cross-examination to him that he approached the curve at about 25 m.p.h. and increased speed to
30 when rounding the bend. I am satisfied that the second defendant made an honest slip of the
tongue in giving his answer and, when he realised it, he corrected it to a speed of about 30 m.p.h.
when approaching the curve which he reduced to 25 m.p.h. when on the bend.
As to credibility I prefer the version of the accident as given by the second defendant. My
finding of fact as to the accident is as follows: second defendant drove the bus on the tarmac road
from Zanzibar to Ungujauku. At a left hand bend near mile 16 1/2 both tyres on the offside back
wheel burst. His speed was around 30 m.p.h. The bus was full, containing some twenty-three
passengers. The second defendant realised the tyres had burst and tried to control the bus but
before the bus came straight the rim of the back wheel hit the road surface. The bus stopped. It
rose and overturned on the off-side, where it lay. The second defendant was dazed and after two
or three minutes he climbed out from the top side of the bus. I do not consider that any adverse
inference of excessive speed against the defendant should be drawn from the fact that the bus
rose and overturned.
The learned judge then proceeds in the judgment to deal with the application of the doctrine of
res ipsa loquitur to the case, and for this purpose he relies on a statement of the principles of the
doctrine which appears at p. 470 of the 9th Edn. of Salmond on The Law of Torts, which reads as
follows:
. . . but where the thing is shown to be under the management of the defendant and his servants,
and the accident is such as in the ordinary course of things does not happen if those who have the
management use proper care, it affords reasonable evidence, in the absence of explanation by the
defendant, that the accident arose from want of care. On the other hand, if the defendant
produces a reasonable explanation, equally consistent with negligence and no negligence, the
burden of proving the affirmative, that the defendant was negligent and that his negligence
caused the accident, still remains on the plaintiff.
The learned judge then says:
7.
Mr. Chowdry for the plaintiff has urged that if the evidence of the defendant that
the tyres are good is believed he must give an explanation of how they burst. The very fact of
their bursting shows that the tyres were bad. I have heard no evidence to suggest that in the
conditions under which passenger buses are run in Zanzibar the high standard of regular
inspection of tyres according to the routine practice of omnibus companies
Page 204 of [1960] 1 EA 201 (CAZ)
in the United Kingdom must necessarily apply to Zanzibar. It is I think sufficient
if the defendants have used reasonable care to secure the safety of their passengers having regard
to conditions of operating buses prevailing in Zanzibar.
The defendants explanation is that this bus is new, some four or five months old. It is the
ordinary Zanzibar type bus with double tyres on each rear wheel. The inner tubes have been
changed but the tyres which burst had been used on the bus continually. He described the tyres as
not new at the time of the accident but good tyres with the treads still on them. He had no reason
to believe that there was any fault in them. The plaintiff has not led any evidence to show that the
tyres on inspection after the accident were found worn smooth and thin and hence a warning to a
reasonably careful bus operator that they were a potential danger. I am left with the evidence of
the second defendant, which I accept, that he had no reason to believe that the tyres were not
safe. He has done his duty of safety to the public by satisfying himself that they were good tyres
with the treads still on them. I do not think that in present conditions in Zanzibar he is required to
conduct a routine inspection for hidden weaknesses as was laid down in Barkways case.
Barkways case is peculiar to the U.K. having regard to the evidence therein of what is the
practice of other omnibus companies in regard to a system of tyre inspection.
8.
In my opinion the second defendant was not driving at an excessive speed having
regard to the conditions and user of the road. There is evidence that bursts can be caused by
sharp things on the road. It is quite probable that the rough solid stone under the road near where
the tyres burst was the immediate cause. I have given serious thought to the fact that both tyres
burst at the same time and whether I should not draw an inference adverse to the defendant.
There is no evidence on the point to guide me. I assume that both tyres having been in use on the
same side of the bus for equal periods would be equally worn and develop equal weaknesses.
When the same cause of bursting operated on both I assume that there is no significance in both
tyres bursting together. I consider that the defendant has discharged the burden of showing how
the accident could reasonably happen without negligence on his part. It follows that the plaintiff
fails on the question of liability.
As remarked by the learned judge, the appellant sued as a poor person, but he was represented in
the proceedings in the High Court, an advocate having been assigned to him for the purpose. The
appeal to this court was also in forma pauperis, but the appellant was unrepresented, no
application having been made under r. 82 (5) of the Eastern African Court of Appeal Rules, 1954,
for assignment of an advocate to him. It may be added that it would seem unlikely that an
application for assignment of an advocate under that rule could have been successful.
The first three grounds of appeal complain that the learned judge erred in disbelieving the
appellant and his witnesses and claim that he ought to have held that the accident was due to
excessive speed and the failure of the second respondent as driver to keep a proper look-out. This
also was the substance of appellants address to the court.
As to this, it is sufficient to say that matters of credibility are peculiarly matters for the trial judge
and that, in the absence of evidence as to the state of the tyres at the time of the accident, the
distance the bus travelled after the blow out of the tyres, and other relevant facts noted by the
learned judge in his judgment, it is quite impossible for this court to say that the learned judges
conclusions of fact were wrong. I think those grounds of appeal must fail.
Page 205 of [1960] 1 EA 201 (CAZ)
The last two grounds of appeal read as follows:
4.
That the learned judge wrongly applied the doctrine of res ipsa loquitur by
holding that the burden of proving how the tyre burst was in the appellant.
5.
He ought to have held that the onus to prove how the tyre burst lies on the
respondent and on his failing to discharge the onus ought to have entered judgment against the
respondents.
Mr. Fraser Murray, who appeared for the respondents at the hearing of the appeal, very properly
drew our attention to the case of Moore v. R. Fox & Sons (1), [1956] 1 All E.R. 182, and
conceded that the passage from Salmond set out above can no longer be regarded as an accurate
statement of the law, and that the obligation upon the respondents was not merely to produce an
explanation equally consistent with negligence or no negligence, but to show a probability that
the accident happened without negligence. He referred, inter alia, to Barkway v. South Wales
Transport Co. Ltd. (2), [1948] 2 All E.R. 460, Woods v. Duncan (3), [1946] A.C. 401 and Wing v.
London General Omnibus Co. (4), [1909] 2 K.B. 652, and argued that there would be no liability
on the respondents if they could show either (a) absence of negligence, or (b) probability that the
accident happened without negligence, or (c) that the accident was due to circumstances not
within the respondents control. He contended that the learned judges findings of fact
established each of these propositions in favour of the respondents.
The passage in the judgment of Sir Raymond Evershed, M.R., in Moore v. R. Fox & Sons (1) to
which Mr. Fraser Murray referred is at p. 189 of the report, and reads as follows:
So, in The Kite Langton, J., said ((1933) P. at p. 168)
When they (the defendants) have given that explanation one has still to see whether negligence
has been proved. The explanation may be disbelieved; the explanation may not at all exclude
negligence, but the explanation may leave the matter still in some doubt as to exactly how the
occurence did happen, but leave an equal possibility that it happened without negligence as with
negligence.
If, by the passage which I have last quoted, Langton, J., meant to lay it down that in a case of
res ipsa loquitur, that is to say a case in which the onus has been cast on the defendants, it is
sufficient to discharge that onus for them to show that the accident might have occurred for more
than one reason some of which reasons are consistent with the absence of negligence, then it
seems to me that the conclusion is not justified and is in conflict with the formulation of Asquith,
L.J., in Barkway v. South Wales Transport Co. Ltd. and the language of Lord Radcliffe in Esso
Petroleum Co. Ltd. v. Southport Corpn. I must not be taken to be suggesting that The Kite was
therefore wrongly decided. That was a case in which the plaintiffs, owners of cargo loaded in a
barge, sued the owners of the tug which was towing the barge for negligent navigation on the
part of the tug master since the barge containing the plaintiffs goods had, in the course of the
tow, come into collision with an arch of a railway bridge, and the goods were thereby damaged.
The tug master gave evidence which the judge believed. The effect of that evidence was that, at
the critical time, the barge containing the plaintiffs goods swung outwards from the barge to
which it should have been made fast, and that the collision was, in the tug masters view, due to
that fact. It was accepted by the judge that the navigation by the tug master was in no sense
careless and, if so, the swinging out of the barge containing the plaintiffs goods was attributable
Page 206 of [1960] 1 EA 201 (CAZ)
to the fact that it had not been properly made fast to the adjacent barge, a circumstance which
was wholly outside the tug masters control and for which, therefore, his company was in no
sense responsible. In other words, as I follow the facts and findings in The Kite, the defendants
there proved by the tug masters evidence, as was proved in Woods v. Duncan by the evidence of
Lieutenant Woods, that, whatever in fact was the cause of the accident, there had been no fault or
want of care on the part of the party sued.
In Barkway v. South Wales Transport Co. Ltd. (2), Asquith, L.J., at p. 471 of the report, said:
The position as to onus of proof in this case seems to me to be fairly summarised in the
following short propositions. (i) If the defendants omnibus leaves the road and falls down an
embankment, and this without more is proved, then res ipsa loquitur, there is a presumption that
the event is caused by negligence on the part of the defendants, and the plaintiff succeeds unless
the defendants can rebut this presumption. (ii) It is no rebuttal for the defendants to show, again
without more, that the immediate cause of the omnibus leaving the road is a tyre-burst, since a
tyre-burst per se is a neutral event consistent, and equally consistent, with negligence or due
diligence on the part of the defendants. When a balance has been tilted one way, you cannot
redress it by adding an equal weight to each scale. The depressed scale will remain down. This is
the effect of the decision in Laurie v. Raglan Building Co. Ltd., where not a tyre-burst but a skid
was involved. (iii) To displace the presumption, the defendants must go further and prove (or it
must emerge from the evidence as a whole) either (a) that the burst itself was due to a specific
cause which does not connote negligence on their part but points to its absence as more probable,
or (b) if they can point to no such specific cause, that they used all reasonable care in and about
the management of their tyres: Woods v. Duncan, The Thetis.
It may be noted that Barkways case was considered by the learned judge in his judgment.
In Woods v. Duncan (3) at p. 439 of the report, Lord Simmonds said:
I will add first a few words upon the question of the liability of Lieutenant Woods. I will assume
against him, though I doubt whether the assumption is justified that this is a case in which the
principle of res ipsa loquitur may be applied. But to apply this principle is to do no more than
shift the burden of proof. A prima facie case is assumed to be made out which throws upon him
the task of proving that he was not negligent. This does not mean that he must prove how and
why the accident happened: it is sufficient if he satisfies the court that he personally was not
negligent. It may well be that the court will be more easily satisfied of this fact if a plausible
explanation which attributes the accident to some other cause is put forward on his behalf; but
this is only a factor in the consideration of the probabilities. The accident may remain
inexplicable, or at least no satisfactory explanation other than his negligence may be offered: yet,
if the court is satisfied by his evidence that he was not negligent, the plaintiffs case must fail.
The paragraph in Wing v. London General Omnibus Co. (4) relied on by Mr. Fraser Murray
appears in the judgment of Fletcher Moulton, L.J., at p. 663 of the report:
. . .Without attempting to lay down any exhaustive classification of the cases in which the
principle of res ipsa loquitur applies, it may
Page 207 of [1960] 1 EA 201 (CAZ)
generally be said that the principle only applies when the direct cause of the accident, and so
much of the surrounding circumstances as was essential to its occurrence, were within the sole
control and management of the defendants, or their servants, so that it is not unfair to attribute to
them a prima facie responsibility for what happened. An accident in the case of traffic on a
highway is in marked contrast to such a condition of things. Every vehicle has to adapt its own
behaviour to the behaviour of other persons using the road, and over their actions those in charge
of the vehicle have no control.
In the light of the dicta set out above I accept Mr. Fraser Murrays propositions that the
respondents can avoid liability if they can show either that there was no negligence on their part
which contributed to the accident; or that there was a probable cause of the accident which does
not connote negligence on their part; or that the accident was due to circumstances not within
their control. And I feel bound to agree that on the learned judges findings of fact the
respondents have succeeded in establishing these propositions. The learned judge found on the
evidence that the tyres of the bus were good tyres with the tread still on them, that the second
respondent had no reason to believe they were not safe, and that he had done his duty of safety to
the public by satisfying himself that they were good tyres with the tread still on them. He found
also that the speed of the bus at the time of the accident was around 30 m.p.h. It was not
suggested at the trial that 30 m.p.h. was an excessive speed in the particular circumstances of the
case: the appellants case was that the speed of the bus was far in excess of 30 m.p.h., but that
contention was not accepted. Finally, the learned judge found that a probable cause of the
accident was rough solid stone under the road. The evidence on this point had been that at the
place of the accident
the sub-surface of road was solid stone which caused a bump in the surface of the road.
I do not accept Mr. Fraser Murrays proposition that the mere fact that the immediate cause of the
burst tyres was the rough surface of the road established that the accident was due to
circumstances not within the respondents control. The speed of a vehicle in relation to the
particular road conditions is a most material factor and one which normally is within the control
of the driver of the vehicle, and there is certainly a duty on a driver to keep a proper look-out to
ascertain the condition of the road and to adapt the speed of the vehicle to it. In the instant case,
however, the learned judge expressly found that the second respondent was not driving at an
excessive speed having regard to the conditions and user of the road.
For these reasons, and on the basis of the cases cited, I think the respondents have discharged the
onus thrown on them by the application of the principle of res ipsa loquitur, and that the appeal
must be dismissed.
Sir Kenneth OConnor P: I agree. The appeal is dismissed. As the appellant has leave to appeal
in forma pauperis, there will be no order as to costs.
Gould JA: I also agree.
Appeal dismissed.
For the appellant:
Lakha & Co., Zanzibar

For the respondents:
Fraser Murray and A. A. Lakha.
TRAFFIC OFFENCES
Kamau s/o Muga v R
[1963] 1 EA 172 (SCK)
Division:
HM Supreme Court of Kenya at Nairobi
Date of judgment:
26 October 1962
Before:
Rudd Ag CJ and Edmonds J
[1] Street traffic Evidence Mechanically propelled vehicle Causing death by dangerous
driving Evidence of mechanical defect in steering mechanism of vehicle Accused under
influence of drink Defence that accident caused by mechanical defect Whether onus of proof
shifts to the defence Traffic Ordinance, 1953, s. 43 and s. 44 (K.).
[2] Criminal law Practice Mechanically propelled vehicle Whether indictment should
contain both charge of causing death by dangerous driving and charge of driving under influence
of drink.
Editors Summary
The applicant was convicted in the magistrates court on three counts, namely, causing death by
dangerous driving, driving under the influence of drink and driving an unlicensed public service
vehicle and now appealed against the conviction and sentence on the first count. At the trial,
evidence was adduced that there was a mechanical defect in the steering mechanism of the
vehicle and also that the appellant was under the influence of drink to such an extent
Page 173 of [1963] 1 EA 172 (SCK)
as not to be capable of proper control. The appellants defence was that the accident which gave
rise to the charge in the first count was caused by the mechanical defect. On appeal, it was
argued for the Crown that even if the steering became defective, a defence based on such a
mechanical defect could not succeed unless it was the only possible cause of the accident, in
other words, that if the evidence were such as to indicate that the accident could have been
caused by dangerous driving the existence of the mechanical defect would be of no assistance to
the accused. Crown Counsel also invited the attention of the court to the English case of R. v.
McBride, [1961] 3 W.L.R. 549 and requested a direction in similar terms to that given by the
Court of Criminal Appeal on the advisability of joining a count of driving when under the
influence of drink with a count of causing death by dangerous driving.
Held
(i)
generally speaking an indictment containing a charge of causing death by
dangerous driving should not include a charge of driving under the influence of drink but a
charge of driving under the influence of drink may properly be coupled with a charge of
dangerous driving if the evidence regarding the influence of drink upon the driver is such as to
justify it. Dictum in R. v. McBride, [1961] 3 W.L.R. 549, approved.
(ii)
the fact that a person may be under the influence of drink and may not thereby be
capable of having proper control of his vehicle is a factor by itself, and if no other factor
intervenes may clearly be the cause of his driving dangerously, but if another factor intervenes,
such as a mechanical defect of which the driver had no knowledge or no reason to suspect its
presence or likelihood, then the question must inevitably arise as to whether even if he had not
been under the influence of drink he could have so controlled the vehicle as to avoid driving
dangerously.
(iii)
in such circumstances the onus is upon the Crown to establish affirmatively and
beyond reasonable doubt that the persons dangerous driving was due to a cause which was
within his control:
R. v. Spurge, [1961] 3 W.L.R. 23 applied.
(iv)
the prosecution had not proved that the erratic movement of the vehicle was due
to a cause or causes other than the mechanical defect, in other words, that the appellant was
driving dangerously irrespective of the defect and that the death of his passenger was not caused
by that defect but was caused by reason of dangerous driving.
Appeal allowed. Conviction and sentence on the first count set aside.
(1) R. v. McBride, [1961] 3 W.L.R. 549; [1961] 3 All E.R. 6; 45 Cr. App. R. 262.
(2) R. v. Spurge, [1961] 3 W.L.R. 23; [1961] 2 All E.R. 688; [1961] 2 Q.B. 205.
Judgment
Rudd Ag CJ: read the following judgment of the court:
The appellant was convicted on the following three counts under the Traffic Ordinance, 39/1953:
Count 1: Causing death by driving, contrary to s. 44 (A) of the Traffic Ordinance, 1953, as
amended by Ordinance 14/58.
Particulars of Offence: Kamau s/o Muga, on December 23, 1961, at about 8 p.m. on
Nembu/Mutati road near Mutati Town in Kiambu district within
Page 174 of [1963] 1 EA 172 (SCK)
the Central Province caused the death of Ndungu s/o Kabue by driving motor vehicle Ford pickup Reg. No. KFJ. 939 in a manner dangerous to the public having regard to all circumstances of
the case.
Count 2: Driving when under the influence of drink, contrary to s. 43 (1) of the Traffic
Ordinance, 1953.
Particulars of offence: Kamau Muga, on December 23, 1961, at about 8 p.m. at Nembu/Mutati
road in Kiambu district of Central Province, drove a Ford pick-up motor vehicle No. KFJ. 939 on
a road, when under the influence of drink to such an extent as to be incapable of having proper
control of the vehicle.
Count 3: Driving unlicensed public service vehicle, contrary to s. 92 of the Traffic Ordinance,
1953.
Particulars of Offence: Kamau Muga, on December 23, 1961, at 8 p.m. at Nembu/Mutati Road in
Kiambu district of Central Province, drove a public service vehicle, a Ford pick-up KFJ. 939
when there was not in force in relation to such vehicle a P.S.V. licence issued under the
Ordinance.
The appellant was sentenced to six months imprisonment on the first count and three months
imprisonment on the second count, to run concurrently, and to a fine of Shs. 50/- or fifteen days
imprisonment in default of payment on the third count. Additionally the appellant was
disqualified from holding a driving licence for twelve months. He now appeals against
conviction and sentence on the first count.
Before dealing with the grounds of his appeal we would first allude to the subject of the joining
of a count of driving when under the influence of drink under s. 43 (1) of the Ordinance with a
count of causing death by driving under s. 44 (A). Learned counsel for the Crown invited our
attention to the case of R. v. McBride (1), [1961] 3 W.L.R. 549, and a request was made that this
court should give a direction in similar terms to that given by the Court of Criminal Appeal on
the subject of joining these counts. There appears the following passage at p. 552 of the
judgment of that court in R. v. McBride (1):
In the course of the argument before this court a request was made by counsel for the
prosecution that some guidance should be given on the question whether a charge under s. 6 . . .
[Driving when under the influence of drink] . . . of the Road Traffic Act, 1960, should be
preferred in addition to a charge of dangerous driving, assuming that there is evidence to justify
such additional charge. Without wishing to give any general direction this court is of the
following opinion: (a) an indictment containing a charge under s. 1 of the Act (causing death by
dangerous driving) should not include a charge under s. 6. This view is in accordance with the
practice under which an indictment charging manslaughter has not included a count alleging
driving under the influence of drink. (b) A charge under s. 6 may properly be coupled with a
charge of dangerous driving under s. 2 if the evidence regarding the influence of drink upon the
driver is such as to justify it.
We desire respectfully to associate ourselves with this general direction for the guidance of the
courts in this colony.
However, in regard to the relevance or otherwise of the condition of the driver due to drink to the
question of whether he was driving dangerously the Court of Criminal Appeal had this to say, at
p. 551:
In the opinion of this court, if a driver is adversely affected by drink, this fact is a circumstance
relevant to the issue whether he was driving dangerously. Evidence to this effect is of probative
value and is admissible
Page 175 of [1963] 1 EA 172 (SCK)
in law. In the application of this principle two further points should be noticed. In the first place,
the mere fact that the driver has had drink is not of itself relevant: in order to render evidence as
to the drink taken by the driver admissible, such evidence must tend to show that the amount of
drink taken was such as would adversely affect a driver or, alternatively, that the driver was in
fact adversely affected. Secondly, there remains in the court an overriding discretion to exclude
such evidence if in the opinion of the court its prejudicial effect outweighs its probative value. It
is impossible to lay down any general rule as to the way in which this discretion should be
exercised, as each case must be considered in the light of its own particular facts, but in the
opinion of this court, if such evidence is to be introduced, it should at least appear of substantial
weight.
We are of the opinion that in the case before us the evidence as to the appellants condition in
regard to drink was clearly of substantial weight, and the learned trial magistrate was right to
exercise his discretion in admitting that evidence. We are of this opinion despite the fact that we
do not think that, in the result, the prosecution discharged the burden upon it of proving beyond
reasonable doubt that the accident which resulted in the death of a passenger in the appellants
vehicle was due to the factor of dangerous driving and to no other factor.
The appellants defence to the first count was that the accident was caused by a defect in the
steering mechanism of his vehicle. In a cautioned statement which he made to the police on the
day following the accident the appellant made no mention of this defect, but five days later he
appears to have asked to be allowed to add to that statement and he then said, again under
caution:
. . . when the vehicle fell down the steering had already broken, and I think that was the cause of
the accident.
However, to the police officer investigating at the scene of the accident soon after it had
occurred, the appellant said the accident was due to the fact that his steering had broken. The
vehicle was not mechanically examined until January 9, 1962, some seventeen days after the
accident, and evidence of the examination is given by a mechanic to whose workshop the vehicle
had been taken and who was called as a defence witness. His evidence, which was not
challenged by the prosecution, was as follows:
The nut on the steering rod had fallen off. It connects the steering arm and the tie rod. If this nut
comes off, the vehicle cannot be steered. If it can come off the retaining split pin is lost. This pin
can come off by itself. It can also come off in a comparatively new vehicle.
A vehicle inspector who was called by the prosecution gave this evidence, which is in some
support of the evidence of the mechanic:
The drag link and a steering arm are a vital part of the steering. They are connected by a drop
arm drag link connection. It is unlikely for the connecting pin to fall off but it may break and
cause loss of control over the vehicle.
As long as the retaining nut on the pin is in place, the vehicle can be controlled. The nut can get
loose quicker on a rough road.
In his evidence at his trial the appellant spoke of the steering wheel spinning in his hands just
before the accident.
In dealing with this defence and the evidence in regard thereto the learned magistrate said
merely:
Page 176 of [1963] 1 EA 172 (SCK)
I do not believe that the accident was caused by a mechanical defect in accuseds vehicle.
We do not think that this was adequate consideration of the evidence as to the defect nor do we
think that the learned magistrate appreciated fully the significance of the rough sketch which was
put in by the prosecution. In referring to this he says that:
. . . on a section of the road as shown in exhibit 3 (the sketch) he swerved about hitting the road
bank on the offside several times and eventually overturned.
We think that the use of the words swerved about are not an accurate description of the course
of the vehicle. The rough sketch shows that the vehicle appears suddenly to have veered to its
right and struck the bank running along the side of the road. It then came away from the bank
and swung into it again a distance of 52 feet 6 inches further on. It again came away from the
bank and then swung back into it only 18 feet further on. It did the same thing again and again
striking the bank 39 feet further on, then 15 feet further on, then 67 feet further on, then 20 feet
further on, and again 32 feet further on when it overturned. At no time during this distance of
approximately 243 feet did the vehicle return to the middle or its left of the road to justify the
description that it was swerving about. In our opinion the course of the vehicle involving these
repeated turns into the bank are not inconsistent with faulty steering; or the least that may be said
is that the behaviour of the vehicle is consistent with a faulty steering equally as it is with
dangerous driving or the driving by a person who through the influence of alcohol has no control
over his vehicle.
However, learned counsel for the Crown argued that even if the steering became defective, a
defence based on such a mechanical defect could succeed only if it was the only possible cause
of the accident, in other words, that if the evidence were such as to indicate that the accident
could have been caused by dangerous driving the existence of the mechanical defect would be of
no assistance to the driver. This contention seems to us to go right against the principle that a
charge must be proved beyond reasonable doubt. However, counsel relied on the case of R. v.
Spurge (2), [1961] 3 W.L.R. 23, where at p. 25 Salmon, J., who delivered the judgment of the
Court of Criminal Appeal, said:
If, on a prosecution under s. 11 (1) . . . [dangerous driving] . . . the Crown proves that a motorvehicle driven by an accused in fact endangers the public, that is strong evidence and, indeed, in
any but the most exceptional circumstances, is likely to be regarded by the jury as conclusive
evidence that the accused was driving in a manner dangerous to the public. If, however, a motorcar endangers the public solely by reason of some sudden overwhelming misfortune suffered by
the man at the wheel for which he is no way to blame if, for example, he suddenly has an
epileptic fit or passes into a coma, or is attacked by a swarm of bees or stunned by a blow on the
head from a stone, then he is not guilty of driving in a manner dangerous to the public: Hill v.
Baxter. It would be otherwise if he had felt an illness coming on but had still continued to drive,
for that would have been a manifestly dangerous thing to do. It is true that in the examples given
above it may be said that in a sense the man at the wheel was not driving at all, and therefore not
driving dangerously. Indeed, that was the view expressed by the Divisional court in Hill v.
Baxter, a view with which this court entirely concurs. But it is also true that the sudden
mischance suffered by the man at the wheel totally prevented him from controlling the
movements of the motor-car, and that no fault
Page 177 of [1963] 1 EA 172 (SCK)
of his in any way contributed to the danger. On that ground also, it seems to this court that even
if the man at the wheel could in any sense be said to be driving, he would not be guilty of driving
in a manner dangerous to the public. There does not seem to this court to be any real distinction
between a man being suddenly deprived of all control of a motor-car by some sudden affliction
of his person and being so deprived by some defect suddenly manifesting itself in the motor-car.
In both cases the motor-car is suddenly out of control of its driver through no fault of his.
Supposing a man is driving a motor-car at a slow speed close to his near side of wide road,
keeping a proper lookout and exercising all due care and skill, he is clearly driving in a safe
manner. He turns the steering wheel to negotiate a gentle bend, but owing to a mechanical defect
in the steering mechanism of which he has and could have no knowledge, the steering suddenly
fails completely and the wheel turns helplessly in his hands so that the motor-car careers across
the road into an oncoming vehicle. In these circumstances clearly the motor-car endangers the
safety of the member of the public driving the oncoming vehicle. Nevertheless, it could not truly
be said that this danger was created by the manner of the driving of the motor-car which had
gone out of control. There would be nothing in the driving which created the danger. It is quite
true that if the motor-car had not been driven on the road, no danger to the public would have
occurred. It is equally true that if the oncoming vehicle had not been on the road and no member
of the public had been in the vicinity, there would have been no danger to the public. The driving
of neither vehicle, however, would be the cause, but the driving of each would be the occasion,
of the danger. As Lord Goddard, C.J., said in Simpson v. Peat: It is by no means impossible, and
indeed must on occasions happen, that a situation of danger arises in which a motorist is
involved but it cannot be said that he caused it by driving dangerously . . . Whether the charge is
under s. 11 or s. 12, the offence can be committed although no accident takes place; equally
because an accident does occur it does not follow that a particular person has driven either
dangerously or without due care and attention: but if he has, it matters not why he did so.
Suppose a driver is confronted with a sudden emergency through no fault of his own; in an
endeavour to avert a collision he swerves to his right it is shown that had he swerved to the left
the accident would not have happened; that is being wise after the event and, if the driver was in
fact exercising the degree of care and attention which a reasonably prudent driver would
exercise, he ought not to be convicted, even though another and perhaps more highly skilled
driver would have acted differently.
The learned judge then added these words:
This court desires to emphasise that cases in which a mechanical defect can successfully be
relied upon as a defence to a charge of dangerous driving must be rare indeed. This defence has
no application where the defect is known to the driver or should have been discovered by him
had he exercised reasonable prudence. To drive a motor-car in such circumstances is manifestly
dangerous. The essence of the defence is that the danger has been created by a sudden total loss
of control in no way due to any fault on the part of the driver.
We do not think that that case supports the contention for the Crown. Each case, of course,
depends for decision upon its own facts and circumstances, but in our opinion the decision turns
solely on the question:
Was the sudden total loss of control in no way due to any fault on the part of the driver.
Page 178 of [1963] 1 EA 172 (SCK)
The fact that a person may be under the influence of drink and may not thereby be capable of
having proper control of his vehicle is a factor by itself, and if no other factor intervenes may
clearly be the cause of his driving dangerously. But if another factor intervenes, such as a
mechanical defect of which the driver had no knowledge or no reason to suspect its presence or
likelihood, then the question must inevitably arise as to whether even if he had not been under
the influence of drink he could have so controlled the vehicle as to avoid driving dangerously. In
such circumstances the onus is upon the Crown to establish affirmatively and beyond reasonable
doubt that the persons dangerous driving was due to a cause which was within his control. The
question of whether the onus in such circumstances ever shifts to an accused person was
considered in R. v. Spurge (2). At pp. 27 28 of the report there appears this passage:
It has been argued by counsel for the Crown that even if a mechanical defect can operate as a
defence, yet the onus of establishing this defence is upon the accused. It is of course conceded by
the Crown that this onus is discharged if the defence is made out on a balance of probabilities. In
the opinion of this court, the contention made on behalf of the Crown is unsound, for in cases of
dangerous driving the onus never shifts to the defence. This does not mean that if the Crown
proves that a motor-car driven by the accused has endangered the public, the accused could
successfully submit at the end of the case for the prosecution that he had no case to answer on
the ground that the Crown had not negatived the defence of mechanical defect. The court will
consider no such special defence unless and until it is put forward by the accused. Once,
however, it has been put forward it must be considered with the rest of the evidence in the case.
If the accuseds explanation leaves a real doubt in the mind of the jury, then the accused is
entitled to be acquitted. If the jury rejects the accuseds explanation, the jury should convict. It
has been suggested by counsel for the Crown that the onus of establishing any defence based on
mechanical defect must be upon the accused because necessarily the facts relating to it are
peculiarly within his own knowledge. The facts, however, relating to a defence of provocation or
self-defence to a charge of murder are often peculiarly within the knowledge of the accused since
often the only persons present at the time of the killing are the accused and the deceased. Yet
once there is any evidence to support these defences, the onus of disproving them undoubtedly
rests upon the prosecution: Wollmington v. Director of Public Prosecutions. There is no rule of
law that where the facts are peculiarly within the knowledge of the accused, the burden of
establishing any defence based on these facts shifts to the accused. No doubt there are a number
of statutes where the onus of establishing a statutory defence is placed on the accused because
the facts relating to it are peculiarly within his knowledge. But we are not here considering any
statutory defence. It is most important that the summing-up should contain a careful direction as
to the onus of proof. It is equally important that the jury should be clearly told the narrow limits,
laid down in this judgment, within which a defence based on sudden mechanical defect can
operate.
In the case before us the facts undoubtedly disclose that there was a mechanical defect. They also
disclose that the appellant was under the influence of drink to such an extent as not to be capable
of proper control of his vehicle. They also disclose that the passengers became anxious by reason
of the erratic movement of the vehicle. The prosecution, however, did not prove that this erratic
movement was due to a cause or causes other than the mechanical defect, in other words, that the
appellant was driving dangerously irrespective of the defect and that the death of his passenger
was not caused by that defect but was caused by reason of dangerous driving.
Page 179 of [1963] 1 EA 172 (SCK)
For these reasons we are of the opinion that the conviction of the appellant on the first count on
the evidence that was adduced was wrong. His conviction and sentence on that count are
accordingly set aside. There was no appeal against the convictions and sentences on the second
and third counts and they are maintained.
Appeal allowed. Conviction and sentence on the first count set aside.
For the appellant:
NJ Desai
NJ Desai, Nairobi
For the respondent:
F Mallon (Crown Counsel, Kenya)
The Attorney-General, Kenya
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
1
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.
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:
1.
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.
2.
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.
3.
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
(1)
Whenever it is provided by law that the court may presume a fact, it

may either regard such fact as proved, unless and until it is disproved, or
may call for proof of it.
(2)
Whenever it is directed by law that the court shall presume a fact, it shall
regard such fact as proved, unless and until it is disproved.
(3)
When one fact is declared by law to be conclusive proof of another, the

court shall, on proof of the one fact, regard the other as proved, and shall
not allow evidence to be given for the purpose of disproving it.
1. PRESUMPTIONS OF FACTS:
(DISCRETIONARY PRESUMPTIONS)
They are inferences that may be drawn. Section 4 (1).

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 guilt 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
(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 doing so 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.
2.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

(a)
declared by law to be admissible as evidence of any particular fact; and
(b)
Substantially in the form, and purporting to be executed in the manner, directed

by law in that behalf; and
(c)
Purporting to be duly certified by a public officer.
(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
(a)
that the document is genuine;
(b)
that any statements as to the circumstances in which it was taken, purporting to be

made by the person signing it, are true; and
(c)
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
(a)
London Gazette, the Edinburgh Gazette, or the official Gazette of any country in
the Commonwealth.
(b)
A newspaper or journal;
(c)
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
(a)
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
(b)
the document shall be admissible for the same purpose for which it would be
admissible in England.
Section 89t3 (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.
(2)
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.

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,
1.
There are people who would likely to have heard from that person in that period.
2.
That those persons have not heard from the person;
3.
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.
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,
1.
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)
2.
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.ReTaplin
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 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.
3.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.
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.
PRESUMPTIONS
Proof of life or death
113. When the question is whether a man is alive or dead, and it is shown that he
was alive within thirty years, the burden of proving that he is dead is on the person who
affirms it.
....................................
114.
Notwithstanding the provisions of s.113 of this Act, when the question is
whether a man is alive or dead, and it is proved that he has not been heard of for
seven
years by those who would naturally have heard of him if he had been alive, the
burden of proving that he is alive is on the person who affirms it.
.......................................
These two sections, and s.115, are based upon the presumption that things once
proved to have existed in a particular state are to be understood as continuing in that state
until the contrary is established by evidence, either direct or circumstantial. SARKAR, p.
929. Section 114 is, in effect a proviso to s.113. SARKAR says on p.929:In view of the above presumption of continuance of life, it was thought
necessary to provide for the counter-presumption where a persons death would seem more
likely from the nature of circumstances of the case than the continuance of life. so it has
been ruled that where a person is continually absent from home for a period of seven years,
unheard of by persons (if any) who would have naturally received intelligence from him, he
is presumed to be dead, and the burden of proving that he is alive is shifted to the person
who affirms that he is not dead. It is a rebuttable presumption ..... S.108 does not require
that the court should hold the person dead at the expiration of the seven years therein
indicated, but merely provides that the burden of proving that he is alive at the time of the
suit is shifted to the person who affirms it. S.108 is an exception to s.107. If a case comes
within the four corners of s.108, it is taken out of s.107.
RATANLAL at p. 228 summarizes the sections as follows:......if it appears that a person, whose present existence is in question, was
alive within thirty years, and nothing whatever appears to suggest the probability of his
being dead, the Court is bound to regard the fact of his still being alive as proved. But as
soon as anything appears which suggests the
probability
of
his
being
dead,
the
presumption disappears, and the question
has to be determined on the balances of
proof.If a person has not been heard of for seven years, there is a presumption of law that
he is dead, and the burden of proving that he is alive is shifted to the other side. But at
what time within that time is not a matter of presumption, but of evidence, and the onus of
proving that the death took place at any particular time within the seven years lies upon
the person who claims a right to the establishment of what fact is essential.
The
presumption that he died at the end of the first seven years, or at any particular
date or at any subsequent period.
When a person absconds from justice in order to evade trial on a charge of murder, the
presumption in s.114 does not apply, as he would naturally not communicate with his
relations. SARKAR p. 934, citing East Punjab v Bachan, A1957 Pu.316.
It should be noted that s.171 P.C. dealing with bigamy provides that the section shall
not extend to any person who contracts a marriage during the life of a former husband or
wife if such husband or wife, at the time of the subsequent marriage has been continually
absent from such person for the space of seven years, and has not been heard of by such
person as being alive within that time.
A problem also arises as to who would be placed in the category of those who
would naturally have heard of him if he had been alive; does this extend beyond
immediate family, and if so to whom?
The section has been severly criticised by SARKAR (p.930) on the grounds that the
period appears to be unduly long in view of the conditions of the present time relating to
swift and easy means of communication and of inquiry.
If a person leaves by an aircraft which does not arrive at its destination long
after it was due and there is no trace of it on account of a crash somewhere
on
mountain or into the sea, should not his death be presumed before the end of seven years
because his body was not found?
Even if his life was spared by some fortuitous
circumstance, he could have communicated the fact to his relations or friends within a
few days. In such and other special cases, the law should allow presumption of death
before the lapse of seven years and courts should be invested with such a discretion.
It should be noted that the Report of the Commission on the Law of Marriage and
Divorce, Recommendation No.86 proposes a change in the present law.
The
Recommendation reads:We recommend that sections 113 and 114 of the Evidence Act and section
22(2) of the Matrimonial Causes Act be replaced by a single provision raising a rebuttable
presumption of death where a person has not been
heard of for seven years by those
who might be expected to have heard from him if he were alive.

Paragraph 231 of the Report discussing the reasons for the Recommendation says:-
Section 113 and 114 of the Evidence Act deal with the burden of proof
when
the
question arises whether a person is alive or dead. Section 113 provides ...... This is subject
to section 114, which provides ..... There is also
presumption
under
the
Matrimonial Causes Act, (Cap.152,s22(2)) that a petitioners spouse is dead if he or she has
been absent from the petitioner
for at least seven years and the petitioner has no reason
to believe that he or she has been alive within that time.
Apart from these specific
provisions, we have no doubt that the court would use its more general powers under the
Evidence Act, to be satisfied by circumsntial evidence of death after a much shorter period,
where there is evidence that points sufficiently strongly towards it, as, for example, where a
ship has been lost at sea. (1) We think these provisions are unnecessarily comples and
confusing, and although it might appear that a decree presuming death can be obtained
more easily and matrimonial than in other proceedings, we think that in practice the
courts requirements would be the same. We think that section 119 of the Evidence
Act sufficiently empowers the court to make a finding of death where it is satisfied that the
evidence points sufficiently strongly towards it, andwe suggest that all that is required is a
single provision raising a
rebuttable presumption of death where a person has not been
heard of for seven years.
If the draft Law of Matrimony Act, 196 is, in fact, enacted as recommended in the Report,
ss. 113 and 114 will be deleted (see Second Schedule), and the following will be inserted
after s.118:Presumption 118c.
Where it is proved that a person has not been heard of for
of death seven years by those who might be expected to have heard

if he were alive, there shall be a rebuttable
(1)
of him
presumption that he is dead.
Note how the Commissioners felt that a court would use its general powers
under the Evidence Act and be satisfied by circumstantial evidence of death in

circumstances which were criticized by SARKAR, p.55.
In the Estate of Harold Raymond Shuttleworth, Deceased, (1943), 20 K.L.R. (2) 37, the
Court Held that on its being certified by the Air Ministry that the testator previously
reported missing had beenofficially presumed dead and exhaustive enquiries concerning
him having been made without result, the probate of his will was granted, the case having
arisen during World War II.
k.
Disproving apparent special relationship

115. When the question is whether persons are partners, landlord and tenant, or
principal and agent, and it has been shown that they have been acting as such, the
burden of proving they do not stand, or have ceased to stand, to each other in those
relationships respectively, is on the person who affirms it.
....................................
The substantive law concerning agency, landlord and tenant, and partnership are
beyond the scope of this work, however, they are directly affected by the Evidence Act in
that those claiming either that they do not stand in these relationships, or have ceased to be
so related have the burden of proving such; if this is proved, then the relevant substantive
law is not applicable to the parties. Brief definitions of the terms are:Partnership - the relation which subsists between persons carrying on business in
common with a view to profit, but excluding an incorporated company. The rights of the
partners between themselves are covered by a partnership agreement.
Landlord and tenant - the relationship depends upon contract and is created by the
landlord allowing the tenant to occupy his premises or land for a consideration termed
rent.
Agent - a person employed to not on behalf of another. The act of an agent, done
within the scope of his authority, binds the principal who has employed the agent.
As in the case of ss.113 and 114, this section deals with a presumption of
continuance. Once this legal relationship has been established by proof, the law presumes
that the relationship continues as before, and until the contrary is proved. i.e. untilthe
relationship has been shown to have ceased to exist.
Examples:A and B are partners. As regards third person, the act of each partner binds his copartner within the ordinary scope of business whether the partner authorised the act or
not. A and B become partners in 1956 in a small shop selling fabrics of all kinds. Generally
the shop handled only the inexpensive types of fabric such as cotton. In 1966 B orders 1000
yards of expensive silks from C, an importer. The bill is not paid and C sues A and B as
partners for his money due to owing. A alleges in defence that the partnership was
dissolved in 1965 so that B has no authority to bind him and he is not liable for the debt.
The burden of proving that A and B have ceased to stand in the relationship of partners is
on A, the person who affirms this fact.
A rents a house to B under a written lease which provides that the lease may be
terminated providing that B fails to maintain the promises in good condition with A
obligated to give one months written notice of termination to B. B fails to maintain the
promise in good condition and A terminates the lease. B fails to leave the promises and A
sues for eviction. The burden of proving that A and B no longer stands in the relationship
of landlord and tenant because the lease was properly terminated is on A, the person who
affirms the fact.
A is a manufacturer of sewing machines and hires B as an agent for a particular
purpose, to sell his machines in Kenya. B, an exceptionally good salesman, is successful,
and attracts the attention of C, also a sweing machine manufacturer, who hires B to handle
his line of machine. A files suit against B and C alleging that Bs contract contains a clause
that he would not sell produce similar to As during his term of employment. B and C enter
the defence that the contract has expired. The burden of proving that A and B have ceased
to stand in the relationship of principal and agent is on B and C, the persons wh affirm it.
In Ali Mahdi v Abdulla Mohamed, [1961] E.A. 83 (T) the respondent claimed
Workmans Compensation and alleged that the appellant was his employer. One main
issue was whether the respondent was an employee or a partner of the appellant. The
respondent gave evidence that a former partnership had been dissolved, and the appellant
gave no evidence at all.
The Court held thaton the evidence available to the trial
Magistrate it was open to him to find that the respondent was an employee and not a
partner of the appellant. Thus the burden lying on the respondent had been discharged; no
reference was made to the I.E.....
1.
Disproving Ownership
116. When the question is whether any person is owner of anything of which he is
shown to be in possession, the burden of proving that he is not the owner is on the person
who affirms that he is not the owner.
......................................
Ownership is the right to the exclusive enjoyment of a thing, and denotes the
relation between a person and any right that is ousted in him. Absolute ownership involves
the right of free as well as exclusive enjoyment, including the right of using, altering
disporing of or destroying the thing owned.
The term possession in this section denotes actual present possession.
The principle of the section does not apply where the possession has been obtained
by form of fraud. Therefore the section is not applicable in the case of a charge under s.323
P.C. of having in possession or conveying anything which may reasonably be suspected of
having been stolen or unlawfully obtained. See discussion of possession cases under the
subject of presumptions.
Possession is prima facie evidence of title; i.e. ownership and when possession is
proved the burden shifts to the person who wishes to disprove ownership.
m.
Proof of good faith

117. Where there is a question as to the good faith of a transaction between parties,
one of whom stands to the other in a position of active confidence, the burden of
proving the good faith of the transaction is on the party who is in a position of active
confidence.
................................................
In certain influences, two parties may stand in such a relationship to each other that
the confidence which one person has in the other puts the latter in a position to exercise an
influence which may be perfectly natural and proper in itself, but capable of being used
unfairly. This is a position of active confidence, andy may be an informed .... confidential
relationship where the other party res... complete trust in the other, of a formal fiduciary
relationship where one person is legally bound to exercise rights and powers in good faith
for the benefit of the latter for example, as between trustee and beneficiary, the proven for
there benefit who trust was established. The law will not allow persons in a judiciary
position, unless expressly so entitled to make a personal profit or put himself in a position
where his duty to be beneficiary and his personal interests conflict.
In these cases the one proving is bound to act in such a way as to protect the
interests of the other, and persons standing in this confidential relationship cannot keep
benefits which the others have conferred upon them unless they can show to the satisfaction
of the court that the person who gave the benefits had competent and inlepenlet advice
before giving them. Many transactions between these persons would not be suspect if not
such confidential relationship had existed.
Certain instances where the person the person in whom the active confidence has
been has been placed has benefitted from the relationship are automatically subjected to
close scrutiny:Parars (or guardian) and child
For example, in Ott......[1965] E.A. 464 (K), S, the third defendant, signed a
guarantee in favour of the plaintiff bank as further security for advances made by the bank
to a firm of merchangs of which F (Ss father) and M (Ss mother) were the propertors. S
lived and worked with F and M, was entirely dependent on them, and although of age, was
found by the judge to be subject to Fs authority and immature. S had no property of his
own and had no independent advise before signing. S denied liability sued by the bank on
his guarantee claiming that he signed it the undue influence of f. The Court held that on
the evidence he signed the guarantee under the influence of his father and defence of undue
influence succeeded. See also : Patel v Thakore, E.A. 629 (C.A).
Practitioner and client, medical practitioner and patient, trustee and beneficiary, spiritual
advisor and any person to whom he stands in that relationship, and fiance and fiancee are
other such relationship to which the rules apply. (Note that husband and wife is not one of
the situations to which the presumption applies).
ANSONS LAW OF CONTRACT (21st Edn.), p.232 to sea., SARKAR, p. 956 ot seq.,
RATANLAL, p. 233 et seq.
Once it has been shown that the paties stood in one of these special relationship
involving active confidence, the burden of proving the good faith of the transaction in
question is upon the person who was in the position of effective confidence, s.s. the parent,
solicitor, etc.
I.
Conclusive proof of legitimacy

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 after its dissolution, the mother remaining unmarried,

shall be
be
conclusive proof that he is the legitimate son of that man, unless it can
shown that the partners the marriage had no access to each other at any
time when he could have been begotten.
.............................................
Once a marriage relationship is shown to have existed, it is prima facie proved to
continue to exist.
1.
Child born during marriage
When a child is born during marriage, he is the legitimate son of the husband unless
it can be shown that the husband and wife had an opportunity to engage in sexual
intercourse at any time when the child could have been conceived. Evidence that the child
was born during the continuance of the valid marriage is sufficient to establish legitimacy,
and the burden of proof shifts to the person who wishes to establish that the child is not
legitimate.
Examples:A and B are single persons, living in the same village. They see each other daily and
decide to get married. Three months after the marriage a child C, is born. Since C was
born during the continuance of a valid marriage between A and B, this is conclusive proof
that C is the legitimate son of A, for since A and B lived in the same village, it could not be
shown that there was no opportunity for them to engage in intercourse during any period
in which C could have been conceived.
Whenever a child is born in lawful wedlock, there is a conclusive
presumption of legitimacy, unless it is proved to be very reliable evidence
(e.g.. divorce, long and continued separation, illness rendering sexual
intercourse impossible, etc.) that the parties had not or could not have any
access. SARKAR, p.964.
As to the example above, SARKAR on p.965 cites the case of Thandi v Jagannath,
A1937, L. 784 wherein a child born on the 17th August, 1920 to D, a woman who was
married to L on the 7th April, 1920, was legitimate as the presumption is quite irrespective
of the fact whether the mother was married or not at the time of conception.
2. Had no access to each other.
Example:A and B are single persons living in the same village. They decide to get married,
and A leaves for a 9 months course in the U.K. After his return A and B are married. Five
months later a child, C, is born. The fact that C was born during the continuance of a valid
marriage between A and B is not conclusive proof of legitimacy in that the parties to the
marriage had no access to each other at any time when C could have been begotten.
Access and non-access mean presence or absence of opportunity for sexual
intercourse. Existence of opportunist for sexual intercourse is not merely physical presence
at the requisite time, but must be taken in the sexual sense. Thus not only absence, but
physical impotency, malformation, illness, etc. may result in non-access. What has to be
proved is the husbands non-access, and not proof that he wife had intercourse with other
men besides her husband. access is a question of fact, may be proved by both positive or
direct evidence or circumstantial evidence, and evidence that although opportunity existed,
nonetheless there was no sexual intercourse ad therefore the child is not that of he husband
must be very strong. See discussion, SARKAR, pp. 966-967.
3. Within two hundred and eighty days, etc.
If a child is born after 280 days have elapsed since the dissolution of the marriage,
the presumption of legitimacy disappears, and the question is decided merely on the
evidence for or against legitimacy.
Example
A is born 260 days after the death of his father in an automobile accident. This is
conclusive proof that he is the son of that man unless it can be shown that the parties to the
marriage had no access to each other during the period before the fathers death when he
could have been begotten.
A is born 281 days after the death of his father in an automobile accident. No
presumption in favour of As legitimacy is raised, and the question as to whether he is
legitimate of illegitimate is decided simply on the evidence for or against legitimacy.
The controlling point is the time of the birth of the child, not the time of conception.
Thus:A commits adultery with W, who is then divorced by H. C, the child, is born during
the marriage of A and W, who married after the divorce form H. C is the legitimate son of
A since he had access to W, and C was born during he continuance of the valid marriage
between A and W.
Same facts, but A does not marry W after the divorce. C is born within 280 days
after the divorce. C is the legitimate son of H unless it can be proved that he had no access
to W at any time that C could have been begotten.
4 Commission Recommendations.
The Report of the Commission on the Law of marriage and Divorce
says in
paragraph 230:..................... Since that Act ( the I.E.A.) was passed, considerable
scientific progress has been made and t is now possible in some cases to
prove by blood tests that the husband of a woman could not have been
the father of her child. (Citing Re L.. [1967] 2 All E.R. 11110; [1968] 1
All E.R. 20; F.v.f.,
[1968] 1 All E.R. 242.) In these circumstances, we think the
ADDENDUM TO S. 118
Seif bin Ali Bauni and Others v. Hamed bin Ali El Bajune. (1945), 7 A.L.R. 137 involved a
situation where a child was born 10 months after the
alleged father divorced the mother. The father had prepared the following document: Ali bin Makame bin Ali declares I married Msyasa Binti Hamadi. I
lived with her and then I divorced her. She observed Iddat for three
months and then I took her to her parents and told her You are no
more my wife and you have not to observe Iddat. She stayed at home
for a period 1320, and this child was no born until 15 Safar 1325
(March 30, 1907). Then hte child was born. Therefore if this child shall
ever file a suit, the Hakim should consider whether a child born after
three (six) years can be ones child. The hakim should consider this.
Written by Ali bin Makame with his own hand, 15th Safa, year 1325.
The child later filed a claim as heir and the material issue was whether the child was born
10 months or 5 years after the divorce. After holding that the document was properly
rejected as evidence under s.32(5) Evidence Decree (s.33(c) K.E.A. equivalent), the Court
discussed the relationship of ss. 112 and 114 Evidence Decree (s. 118 and 119 K.E.A.) at pp.
135-6.
The relevant section of the Evidence Decree is, in my opinion,
section 114. Section 112, which refers to what may be termed the 280
days rule, merely enacts that if a child is born within 280 days after the
dissolution of the marriage, the mother remaining unmarried, and
there being no evidence of non-acess on the part of the husband, that

fact shall be conclusive proof that he is the legitimate son of the
husband.
As section 4 of hte Decree shows in cases of conclusive proof the
court shall not allow evidence to be given for the purpose of disproving it.
But, in the words of the Decree, the court may presume legitimacy in other
cases than those mentioned in section 112. Those cases come within the orbit
of section 114, which enacts that 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.... in their relation to the facts of a
particular case.
The Court then discussed the cases of Gaskill -v- Gaskill, (1921), P. 425 and Bowden -vBowden, (1917),, 62 Sol. J. 105 involving periods of gestation, and continued:In this case, there is no evidence to suggest misconduct on the
part of the plaintiffs mother despite the fact that ten months elapsed
between her divorce and the birth of her child.
As said by Lord
Lyndhurst in Morris v. Davies, (1837( 4 C.. & F. 265, the presumption

in favour of legitimacy is a strong one and one which is not lightly to be
repelled.
It is not to be broken in upon by a mere balance of
probability; the evidence for the purpose of repelling it must be strong,

distinct, satisfactory and conclusive.
Here, the period of pregnancy may have been unusual, but in the
present state of medical knowledge it cannot be said to have been
impossible. In the absence of any evidence containing the slightest
suggestion of adultery on hte part of the mother, I am satisfied that the
evidence proves that the plaintiff is the legitimate son of Ali in
makame.
Note how the court, since the child was born more than 280 days after the dissolution of the
marriage, decided the case on the available evidence to which the presumption in S. 119
applied, since the presumption of legitimacy under s.118 disappeared after 280 days had
elapsed. Presumption of legitimacy should be a rebuttable one.
If the Recommendation (No. 85 is followed and the Law of Matrimony Act, 196 enacted,
s.118 will be amended. (see Second Schedule to the proposed Act) to read: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 after its dissolution, the mother remaining
unmarried, shall raise a rebuttable presumption that he is the
legitimate son of that man.
The Report also recommends two additional sections:Presumption of validity of registered marriage.
118A. The fact that a marriage has been registered under the Law of
matrimony Act, 196- or any written law previously in force providing
for the registration of marriages shall raise a rebuttable presumption
that such marriage was valid.
Presumption of marriage.
118B. Where it is proved that a man and a woman have lived together
for one year upwards, in such circumstances as to have acquired hte
reputation of being husband and wife, there shall be a reputable
presumption that they were duly married:
Provided that no such presumption shall be drawn in any
criminal proceedings for bigamy, adultery or enticement or in any civil
proceedings for damages for adultery or enticement or in any

matrimonial proceedings.
C. Presumptions.
many facts are presumed to be true until the contrary is proved.
OSBORN, THE CONCISE l..w DICTIONARY, DEFENCES presumption as follows:presumption. A conclusion or inference as to the truth
of some fact in question, drawn form other facts proved
or admitted to be true.
Presumptions are of three kinds.
Irrebuttable or conclusive
presumptions.... are absolute inferences established by law; evidence is

not admissible to contradict them......... Irrebuttable presumptions are
more properly called rules of law.
Rebuttable presumptions of law..... are inferences which the law
requires to be drawn from given facts, and which are conclusive until
disproved by evidence to the contrary; e.g. the presumption of the
innocence of an accused person which makes it necessary for the
prosecutor to begin in a criminal trial.
Presumptions of fact... are inferences which may be drawn from
the facts, but not compulsorily.
Section 4K.E.A. under the heading presumptions of fact deals with these presumptions in
slightly different terms, but hte legal result is the same.
4.
(1) whenever it is provided by law that the court may presume a fact, it may either
regard such fact as proved, unless or until it is disproved, or may call for proof of it.
(2) wherever it is directed by law that the court shall presume a fact, it shall regard
such fact as proved, unless or until it is disproved.
(3) When one fact is declared by law to be conclusive proof of another, the court
shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to
be given for the purpose of disproving it.
..........
The words by law in o.4 makes the section applicable not only to those instances in the
Act where sections include reference to presumptions, but to those instances where
provisions for or directions as to presumptions are contained in any other Act in force
in Kenya.
Note the difference between the words. may as used in subs. (1) and shall as
used in subs. (2) and (3). Use of the word may given the court discretion either to do or
not do something, whereas shall is a mandatory direction and the court has no option but
to do what is directed to do.
Subs.(2) deals with rebuttable presumptions of law, inferences which the law requires to be
drawn form a given fact and which are conclusive until disproved by evidence to the
contrary.
in addition to the presumption of innocence, other examples of rebuttable
presumptions are s.14(2) P.C.:A person under the age of twelve years in not criminally responsible for an
act or omission, unless it is proved that at the time of doing the act or making
the omission he had capacity to know that he ought not to do the act or make
the omission.
and s.11 P.C.:Subs. (1) deals with irrebuttable presumptions of law, for example s.14(1)
P.C.:A person under the age of eight years in not criminally responsible for any act or
omission.
Subs. (1) deals with rebuttable presumptions of fact, as does .s. 119 K.E.A., which
reads: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.
...................
Under S..109 (proof of a particular fact) and s.118 (conclusive proof of legitimacy),
no option is given to the court as to whether it will presume a fact or not. Where there is a
specific direction given in the act that a burden of proof will lie on a particular person, the
court is bound in every case to presume against that person. s. 119, however, deals with
rebuttable presumptions of fact, dependent upon hte common course of natural events,
human conduct and public and private business in their relation to the facts of a particular
case, but under s.4, the court may call for proof of the fact or my regard it as proved unless
or until it is disproved. (subs. (1). Consequently, what may be presumed in one case need
not be presumed in a case with almost similar facts; the option is with the court.
The terms of s.119, therefore , are such as to take a number of presumptions in
English law and reduce them to the status of maxims which hte court may then apply or
not. The illustrations. to s.114 I.E.A., nine in number, are some of the more important of
these maxims, and have been referred to by the course on numerous occasions.
------------------the Court may presume(a) that a man who is in possession of stolen goods on after the theft is either the
thief or has received the goods knowing them to be stolen, unless he can account for his
possession.
The relevant penal code sections are sec. 322 and 323:322.
(1) An person who receives or retains any chattel,.... or other property
whatsoever, knowing or having reason to believe the same to have been feloniously
stolen, taken, extorted, obtained or disposed of, is guilty of a felony....
(2) Any person who... knowing or having reason to believe the same to have
been unlawfully taken, obtained, converted or disposed of in a manner which
constitutes a misdemeanour, is guilty of a misdemeanour...
(3) Any person who assists in concealing or disposing of or making away with
any property which he knows or has reason to believe to have been stolen or
obtained in any way whatsoever under circumstances which amount to felony or
misdemeanour is guilty...
(4) No person shall be convicted of an offence under this section unless it is
first proved that the property which is the subject-matter of the charge has in fact
been stolen, or feloniously or unlawfully taken, extorted, obtained, converted or
disposed of.
323. Any person who has been detained as a result of the exercise of the powers conferred
by section 26 of the Criminal Procedure Code and is charged with having in his possession
or conveying in any manner anything which may reasonably be suspected of having been
stolen or unlawfully obtained, and who does not give an account to the satisfaction of the
court of how he came by the same, is guilty of a misdemeanour.
Owing to the different requirements concerning proof of guilty under the sections,
application of the presumption and the burden of proof in each instance will be discussed
separately.
1. Receiving.
S.322(4) sets forth the condition precedent to conviction that it must be proved that
the property which is the subject matter of the charge must be proved to have been stolen,
etc. COLLINGWOOD note., on p.268: On a charge of receiving stolen property, the prosecution must prove (I) a
theft or obtaining in by some other felony, (ii) the receipt of the stolen
property by the accused (who is not the thief or a party to the theft), and (iii)
the accuseds guilty knowledge at the time of receipt.
On a charge of
retaining stolen property, the same elements must be proved, except that the
guilty knowledge may exist after the receipt.
Thus the burden of proof remains upon hte prosecution throughout and does not shift.
Mzalia bin Luziro v. R., (1944), 7 Z.L.R. 9 shows is its holding how this burden affects the
application of the resumption:Hold: that in a charge of receiving stolen property, as in a charge of any
other offence, the burden of proving every fat which is essential to constitute
the offence is upon the prosecution and it is incumbent upon them to prove
each one of the facts beyond all reasonable doubt.
... that when an accused person is found in possession of property recently
stolen and offers an explanation as to how he came by it, it is for the
prosecution to prove either that the explanation is not true, or that, even if it
is true, it is inconsistent with innocence or that it affords no defence to the
charge. (emphasis added).
See also Semanda v. R., (1955), 7 U.L.R. 162, and Circular to Magistrates NO.20 of 1947
(1947), 22 K.L.R. (2) 135, which said:... On many occasions in this Court and in the English decisions it has been
pointed out that on a charge of receiving the enus always remains on the
prosecution, and that it is only in the absence of an explanation by an
accused person of the way in which the goods came into his possession which
may reasonably be true that it is safe to convict.
Where an explanation is tendered which is not demonstrably false the effect

must be that the prosecution has in fact failed to establish the guilt of the
accused person beyond reasonable doubt.
See also: G.E. Komorowski v.R., (1948), 1 T.L.R. (R) 322. (a) Scope and limitation of the
presumption
It is not the law that proof of possession of recently stolen articles will
necessarily or in every case justify an inference of guilty; what constitutes
recent possession depends upon the nature of the property and the
circumstances of the particular case... Jagat Singh v- R., (1953), 20 E.A.C.A
283, 286.
This case is indicates the direction which the court should give to itself, and is quoted in
Abdullah Ibrahim v. R. [1960] . E.A. 43, 45 (T) As the time between the theft and the
evidence that the stolen articles are in the possession of the accused lengthens, the
presumption becomes weaker. In Shabani s/o Juma V. R., (1953), 20 E.A.C.A. 199, two
months after the theft the accused was found wearing some of the stolen articles, and was
found not guilty of entering and stealing, but guilty of receiving stolen goods. The Court of
Appeal in dismissing the appeal said:
Even in the case of receiving, we think an interval of two months in the case
of articles such as those raised not too strong a presumption against the
appellant.
and in Abullah Ibrahims case, supra it was held that possession of an article of common
use such as a tyre pump seven months after a burglary could not raise the presumption
that the appellant was guilty of burglary and stealing. In its decision the Court quoted
form KENNEYS OUTLINES OF CRIMINAL LAW (15th Edn.), p.392:-
As to what time is near enough to be recent, no general rule can be given for
the period within which the presumption can operate will vary according to
the nature of the article stolen. Three months has been held sufficiently
recent for a motor car, and four months for a debenture bond. But for such
articles as pass from hand to hand readily, two months would be a long
time.*
Illustrative of the circumstances which may raise or not raise an inference of receiving with
guilty knowledge are R.V. Rajabali s/o (a) Ibrahim, (1942), 20 K.L.R. (1) where the accused
was found in possession of a motor car tyre a few days after the theft, where the inference
was drawn, and Panachal v.r., (1941), 19 k.l.r. (2) 84 where the inference was not drawn
when the accused was found in possession of a ring stolen fifteen months earlier. See also
Idi s/o Waziri v.r, [1967] E.A.. 146 (T), and Njoroge v.R.,[1963] E.A. 624 (T) See also: Yege
s/o Kitam v.R., (1937), 4 E.A.C.A. 25, 26. (b) 20 K.R=L.R. (1) 70. It has been stated in this
connection that:In the notes to (S.114 I.E.A, illus. (a) it is pointed out that the mere fact of
recent possession of stolen property is in general evidence of theft, not of
receipt of stolen goods with guilty knowledge. I may say that the English law
of evidence is identical with the provisions of the Indian Evidence Act on this
point. It appears to me to be only in accordance with common sense that
recent possession of stolen property will give rise to a presumption of theft
much more readily than to one of receiving stolen property knowing it to
have been stolen.
Francis Barrallen V. R:- (1920) , 8 E.A.L.R. 119, 120.
Certain problems which arise when it is sought to prove crimes other than receiving
are covered in para.(3) on p.67, infra.
2. Person suspected of having or conveying stolen property.
(a) the presumption does not apply.
Although cases involving s.323 P.C. are, at first sight, similar to those involving
receiving, the presumption in illus. (a) does not apply, for here the goods nee not be proved
to have been stolen, but need only be reasonably suspected of having been stolen or
unlawfully obtained.
(b) Conditions precedent to a finding of guilty.
COLLINGWOOD at pp. 276-277 summarises the findings which a magistrate must make
under s.323 or its equivalents which were set forth in the case of Kiende Hamise v.R. [1963]
E.A. 209 (T); there must, of course be evidence led by the prosecution which establishes
each of these points:
1. that the accused was, in fact, detained in the exercise of powers conferred by the
relevant section of the C.P.C.;
2. that at the time when he was detained, the accused was in the course of a journey,
whether or not in a street, or on private land or in a building;
3. that at the time when he was so detained, the accused had in his possession, i.e.
with him, a particular thing;
4. that the thing was of such a nature, or the circumstances were such, that it might
reasonably be suspected of having been stolen or unlawfully obtained; and
5. that he accused had refused to give an account to hte court of how he came by the
thing, or gave an account which was so improbable as to be unreasonable, or gave an
account which was rebutted by the prosecution.
(c) the burden of proof
In the absence of proof by the prosecution that the article in question is the property
of someone else, a reasonable explanation as to how he came into the possession of the item
is sufficient grounds for discharging the accused. This is different. form requiring the
accused to establish that the item belongs to him, i.e. placing an onus upon the accused that
he owns the item, which was held in Tenywa v. Uganda [1967] E.A. 102 (U) to have been a
misdirection as to the law.
Ismail Abdulrchman v.r., (1953), 20 E.A.C.A. 246 considered the shifting of the onus
to the accused in a case involving the (then) s.319 P.C. where similar language had been
incorporated into the section dealing with unlawful possession of Government stores. After
setting forth (p.248) the elements of the offence, the court said: If and when these ingredients have been established, then the onus shifts to
the accused person of giving an account to the satisfaction of the Court as to
now he came by the thing in question. It is important to keep in mind that it
is only in connection with the nature or quality, whether innocent or
criminal, of the accuseds possession that the onus shifts and that there is no
shifting of the onus in respect of the fact of possession. It follows therefore
that as regards that fact the general rule will apply, that is to say, that at the
close of the case for the prosecution, there must be evidence of possession
which, if unregutted, the Court is left with a reasonable doubt, the accused is
entitled to b acquitted. A Fortiori if the Court is satisfied that he was in fact
never in possession. (emphasis added).
As set forth in Kiendi Hamisis cse, the burden of proof resting on the accused once the
onus has shifted to him to give an account of his possession to the satisfaction of the court is
something less than satisfying the court on a balance of probabilities, citing R.V. CarrBriant, [1943] 2 ALL E.R. 156, R.V. Dunbar, [1957] 2 ALL E.R. 737, and R.V. Patters on,
[1962] 2 q.b. 429. Thus the burden of proof in these cases is ht e same as those discussed in
section h(2) of this Chapter, for here, as in the situation noted earlier, the burden has been
placed on the accused by statute; see pp. 44-47 supra. See also Chebusit AKalia v- R.,
[1963] E.A. 448, 451 (K) where the court noted that cases under s.10(1) of the Stock and
Produce Theft Ordinance were analagous to those under s.323 (then 324) P.C..
(d) Examples of similar provisions in other Act
Other acts contain provisions similar of penal Code provisions relating to
possession; e.g in Vithaldas Kayabhai Lodhia V.R., (1954), 2. T.L.R. 103 the Court dealt
with a charge under s.8 of the Gold Trading Ordinance (Cap. 127) of Tanganyika, and held
that the finding of a prohibited substance or item in the possession of a person raised a
prima facie
case against him and the burden of proving that the possession was lawful
was then placed upon him. The Court also noted that a good defence to a charge of
possession was to prove or raise a reasonable doubt that the accused did not know of the
presence of the prohibited substance. Similarly in Suleman Juma Mazrui v..r. (1951), 8
Z.L.R. 139 where the defendant was charged under hte dangerous Drugs Decree, s.9 of
Zanzibar and claimed that the drug, bhang, was placed on him without his knowledge, the
Court held that the burden of proving this by some evidence tending to show form the
surrounding circumstances that the drug was on his person law on the accused
3. Proof of possession constituting proof of other crimes.

The fact that an accused person is found in possession of recently stolen goods may
be evidence o proof of crimes other than those constituting receiving or the theft of the
goods. For example, R. V. Yego s/o Kitum, (1937) , 4 E.A.C.A. 25 where the possession by
the accused soon after a murder, of property of the deceased was strong evidence that he
stole the property, and with other circumstances of the case led to the irresistible conclusion
that he also murdered the deceased. Yegos case was applied in R. V. Ngunjiri s/ Mugi
(1939). 6 E.A.C.A. 90 and considered in R. v. Salimu Sogere and Another, (1939), 6
E.A.C.A. 147. See also R.v. Maseu s/o Kitundu, (1948), 15 E.A.C.A. 129. Here possession is
in the nature of circumstantial evidence pointing towards the guilt of the accused, and the
Court of Appeal held in R.v. Bakari s/o Abdulla, (1949), 16 E.A.C.A. 84 if all the
circumstances of a case point to other reasonable conclusion, the presumption can extend
to any charge, however penal; the Court was here considering whether the trial judge was
justified in extending the presumption to cover a charge of arson. The presumption,
however, is less strong than that raised as to whether the possessor is the thief or a receiver,
see
Abdullah Ibrahim v.R.
[1960] E.A. 43, 45 (K), quoting from OUTLINES OF
CRIMINAL LAW (15th Edn.), p.391

The problem which exits in extension of the presumption crimes other than the theft
or receiving is the requirement that the theft itself must be proved beyond reasonable
doubt. In Andrea Obonyo v.R. [1962] E.A. 542 (C.A) where the deceased had been found
dead after a raid by a gang and there was no direct evidence identifying the accused except
that the accused were all found in possession of articles stolen during the said, the Court,
after considering the application of the presumption on the problem of whether hte accused
is a thief or receiver (see s.1(b) supra) citing Kantilal Jivrajs case, D.P.P. v- Meiser AND
R.V. hassani s/o Mohamed (see p.65), said:- (pp., 549-550)
But where it is sought to draw an inference that a person has
committed another offence from the fact that he stole certain articles, the
theft must be proved beyond reasonable doubt. If, in such a case, a finding
that he stole the articles depends on the presumption arising form his recent
possession of the stolen articles, such a finding would not be justified unless
the possibility that he received the articles has been excluded. The inference
that he stole the ordinary principles which must be followed when an
inference of guilt depends on circumstantial evidence. This is a murder
charge. As to the standard of proof required in criminal cases DENNING,
L.J. (as he then was), had this to say in Bater -v- Bater, [1950] 2ALL E.R. 458
at p.459.
it is true that by our law there is a higher standard of proof in
criminal cases than in civil cases, but this is subject to the
qualification that there is no absolute standard in either case. In
criminal cases the charge must be proved beyond reasonable doubt,
but there may be degrees if proof within that standard. many great
judges have said that, in proportion as the crime is enormous, so
ought the proof to be clear.
The result, then, is that if a person is found in possession of recently stolen articles and the
presumption is applied that he is either hte thief or hte receiver, unless hte evidence is such
so as to convince the court beyond reasonable doubt that he was not the receiver but the
chief, the presumption cannot be extended to other offences.
It would also follow that
there must be a definite finding that the possessor was the thief before the presumption is
extended.
-------------------
The Court may presume(b) that an accomplice is unworthy of credit, unless he is corroborated in material
particulars;
That accomplices are competent witnesses is set forth is s.141:- 141. an accomplice shall be
a competent witness against an accused person; and a conviction shall not be illegal
because it proceeds upon the uncorroborated evidence of an accomplice.
----------------A. What is an accomplice?
The leading decision, on which the Courts in East Africa rely, is Davies v- Director
of Public Prosecution, [1954] A.C. 378, in the House of Lords, wherein the following
authoritative definition of accomplice was given:.............the following persons, if called as witnesses for the prosecution, have
been treated as falling within the category:
(1) on any view, persons who are participes criminis (participants in a
crime) in respect of the actual crime charged, whether as principles or
accessories before or after the fact (in felonies) or persons committing,
procuring, aiding and abetting (in the case of misdemeanours). This is surely
the natural and primary meaning of the term accomplice. But in two cases,
persons falling strictly outside the ambit of this category have, in particular
decisions, have been held to accomplices for the purpose of the rule: viz.
(2) Receivers have been held to be accomplices of the thieves from
whom they receive goods on a trial of the latter for larceny.
(3) When X has been charged with a specific offence on a particular
occasion. and evidence is admissible, and has been admitted, of his having
committed crimes of this identical type on other occasions, as proving system
and intent and negativing accident; in such cases the court has held that in
relation to such other similar offences, if evidence of them were given by
parties to them, the evidence of such other parties should not be left to the
jury without a warning that it is dangerous to accept it without

corroboration.
The above quotation was quoted in apart in MNduyo M,Kanyoro v- R., [1962] E.A. 110
(C.A.) at p.112, where the Court emphasized on p.113 that the Davies case now controlled
hte definition of accomplice in Kenya.
1. Principles
The definition of principal offenders is found in s.20 P.C., and includes:a.
every person who actually does the act or makes the omission which
constitutes the offence.

b.
every person who does or omits to do any act for the purpose of
enabling or aiding another person to commit the offence;
c.
every person who aids or abets another person in committing the

offence; and
d.
any person who counsels or procures any other person to commit the
offence.
Therefore those categories in the Davies case of accessory before the fact and persons
commiting, procuring, aiding or abetting in misdemeanours re principal offenders under
the Kenya Penal Code.
It Kamau v.R. [1965] E.A. 501, 504 (C.A.) it was said: it is not sufficient to constitute a person a principal in the second degree
that he should tactly acquiesce in the crime, or that he should fail to
endeavour to prevent the crime or to apprehend the offenders, but it is
essential that there should be some participation in the act, either by actual
assistance or by countenance or
2 Extent of participation or complicity in crime
As will be seen, the determination as to whether a witness was an accomplice governs the
rules concerning corroboration; therefore the problem arises as to how much complicity in
the commission of a crime will suffice to brand one an accomplice. The present decisions
would, for example, certainly be at variance with such cases as Kichingeri nd Others v.R.
(1908), 3 E.A.L.R. where it was held that certain Africans having publicly assisted in
putting a suspected witch doctor to death according to tribal custom thinking they were
concerned in a legal and meritorious action, their evidence was not tainted in the same
manner as that of an ordinary accomplice in a crime
As noted in hte quotation form Zuharis case, there is a distinction between................. in a
crime, passively witnessing the ommision of an offence. In [1965] E.A. 501 (C.A) the
accused was jointly charged and convicted with one N of murdering her husband, and the
main evidence against her was that of their mother who testified that she saw the accused
striking the deceased on hte back of hte neck with a panga. In holding that a passive
attitude while a crime is being committed or following the commission of a crime will not
ordinarily make a person a principal offender in the former case nor in accessary after the
fact under s.396P.C, in the latter, the Court said at p.504.
It follows form whose authorities, in our view, that what a person who aids
and sheets the commission of a crime or assists the guilty person who merely
acquiesces in what is happening or who fails a report a crime is not normally
an accomplice but that the weight to e given to such a persons evidence will
vary according to hte reason for hte acquiescience. If it was apparently
based on approval of the crime, the evidence will be treated as no better than
that of an accomplice; if it was based on indifference, the evidence will be
treated with considerable caution; but if, for example, it was the result of
fear, there is no reason why hte evidence should not be relied on.
The lion man cases for example R. v. Munduli s/o Chui and Others, (1948),
E.A.C.A 47, and Sita v.R. [1957] E.A. 306 extent capable of classifying prosecution
witnesses as accomplices without raising them to the status of principal offenders. In
Mundulis case the Court noted that both prosecution witnesses were privy to the crime
and took some part in its preparation (p.48), while in Sitas case the evidence implicating
one of the appellants was given by a witness who himself stood charged with consipirac to
murder, and was therefore a principal.
3. Accessories after the fact.
The definition of accessory after the fact is found in hte Penal Code as follows:396. (1) A person who receives or assists another who is, to his knowledge, guilty of
an offence, in order to enable him to escape punishment, is said to become an accessory
after the fact to the offence.
(2) A wife does not become an accessory after the fact to an offence of which her
husband is guilty by receiving or assisting him in order to enable him,
to escape
punishment; or by receiving or assisting in her husbands presence and by his authority

another person who is guilty of an offence in the commission of which her husband has
taken part in order to enable that other person to escape punishment; nor does a husband
become an accessory after the fact to an offence of which his wife is guilty by receiving or
assisting her in order to enable her to escape punishment.
Prior to the Davies case the courts in East Africa did not acknowledge that
accessories after the fact were necessarily accomplices; see, for example, R.v.
Kinyangabwaru, (1942), 9 E.A.C.A. 90, followed in R.v. Nanta s/o Ndimi, (1944) , 11
E.A.C.A 119. R.v. Erunaani Sokoni s/o Eria and Another, (1947), 14 E.A.C.A. 74 in effect
followed these decisions, which also held that they may be special circumstances in a
particular case where the court should look for corroboration before acting on the evidence
of such a witness; see editorial note. See also R.v. Ali Saleh, (1948), 23 K.L.R. (1) 40.
In 1956, however, in hte case of Githae s/o Gathigi and Another v.R., (1956), 23,
E.A.C.A. 440, 441 the Court of Appeal noted that the rule had been put beyond doubt by
Davies, and that any previous decisions tot he contrary were no longer good law, reiterated
in Boota Singh R. R., [1960] E.A. 638 (C.A.)
(a) Compulsion.
In certain types of cases the question arises as to whether a person forced to assist a
principal offender becomes an accessory after the fact even though the assistance may be
rendered only under complusion. This was the type of question presented in Gitahes case
where the witnesses had assisted in carrying away a body under threat of death, however
they were held to be accessories and the question of compulsion or motive was not
examined. There are, however, a series of cases arising out of hte Emergency and the
illegal administering of oaths. The last in the line was MNduyo MKanyaoro v.R., [1962]
E.A. 110 (C.A.) where the defendant stood charged with administering an unlawful oath
and the witnesse were those who participated in the ceremony.
Neither witness had
reported the incident to the police and therefore could not rely on compulsion as a defence
to the charge of taking an unlawful oath had they been charged, to the charge of taking an
unlawful oath had they been charged, see s.63 P.C. If they had reported as required they
would, upon being charged, have been entitled to a defence of compulsion. The magistrate
did not treat the witnesses as accomplices. The Court of Appeal, supporting the earlier
decisions in Bedan Mugo s/o Kimani v.R., (1951) , 18 E.A.C.A. 139 and R.v. Mukwate and
Another,
Kenya Sup. Ct. Emergency Cr. case NO. 64/1955 (unreported), held that a
prosecution witness who had been compelled unwillingly to take an oath and is not in fact
an accomplice, is not, when he is a witness in the prosecution of another person for the
offence of administering that oath, to be treated as an accomplice; this even though were he
to be charged with an offence, he would be statutory presumed (under hte then s.63A) to
have consented to the administration of the oath, and the defence of compulsion would be
curtailed under s.63 P.C.. Contrast this with the situation in Philip Muiga s/o Churia v.R.,
(1953), 26 K.L.R. 100 where the witness admitted he had taken an oath at a meeting but
had not reported. There was nothing in this case to suggest that the oath had been taken
under compulsion, and he was treated as an accomplice whose evidence required
corroboration.
(b) Motive
The motive with which assistance is given may be a determining factor in a decision
as to whether the assisted was an accessory after the fact. For example, in Gathitu s/o
Kiondu v.R., (1956), 23 E.A.C.A. 526 two of the witnesses for the prosecution had assisted
in burying a body and had not informed the police. The witnesses claimed they had acted
from fear of the murders, who were Mau mau, and denied that they had any wish to help
the murders. On appeal the Court held that the question whether assistance given to a
murderer after the crime makes the assister an accessory after the fact depends not on
intention, but on the motive with which the assistance is given,
and that the direction of
the trial judge that the witnesss were not assisting persons who were, to their knowledge,
guilty of an offence, to escape punishment was correct i.e. the witness were not
participates criminis within the meaning of the Davies case. as to motive; the Court said
that that was a matter of fact for the decision of the learned trial Judge. It was similarly
held in a lion man case, R.v. Duloo d/o Cidakungu and Another, (1947), 14 E.A.C.A. 132,
that the failure of prosecution witnesses to report he plan of murder to the authorities did
not constitute them accomplices as there was ample evidence that their silence was induced
by fear.
Motive is also relevant in determining whether a person who invites the commission
of an offence is to be treated as an accomplice, i.e the police spy or police trap cases.
The general rule was set forth in R.v. John Fernandez, (1917), 1 Z.L.R. 546, where it was
held that a police agent who entraps a suspected person by inviting him to commit an
offence which it is believed he is intending to commit is not an accomplice but a spy, if his
purpose in obtaining the commission of hte offence is
simply to serve the public by
deceiving the suspect, and not to create an offence. His evidence, therefore, does not
require corroboration This is if the witness (viz. police spy) has made himself an agent for
the prosecution before associating with the wrongdoes, or before the actual perpetration of
the offence, but he may be an accomplice if he extends no aid to the prosecution until after
the offence is committed. See also R. v. Sirasi Kiboya an Ibuliamu, (1918), 3 U.L.R. 294. It
is for the court to decide in each particular case what weight it will attach to evidence of
this kind, the decision depending on hte character of the particular witness and the
circumstances surrounding the setting of the trap; Baji Daya v.r., (1944), 1 T.L.R. 274.
which also held:
it is desirable in the nature of the case that the movements and actions of
the decoy should be subject to control and surveillance by a responsible
police officer for the purpose of checking and authenticating his activities.
he reason for the rule is, as was pointed out in Habib Kara Vesta and Another v.R., (1934),
1 E.A.C.A 191, 195, that the complicity extends only the...................an not to the mens rea
The Court did also none that if the constigater of the offence is not employed by the public
authorities and did not communicate with them until after the offence had
been
committed. This may be ground for a cautious examination of his evidence. As here
where one Lees, taking it upon himself he suppress the drug traffic in Mombasa induced
the accused to supply a drug.
Similarly in r.v. hasham Jiwa, (1949), 16 E.A.C.A. 90; one Njoroge attempted to
purchase rationed foodstuffs without the require coupons. The defendant quoted prices
which Njoroge thought to be too high. so he went to consult with the .C.s clerk, who
reported to the D.O, to make the purchase, and the defendant was then arrested for his
black market operations. Njoroge gave evidence. and on appeal it was held that while
there were grounds for saying that it was originally the intention of the witness to carry
through the illegal transaction for his own profit, that intention completely disappeared
when he hear the price at which hte defendant wished to sell the goods, and form that
moment ceased to be accomplice and became a police spy before any offence had been
committed by the defendant.
Habibs case and that of R.v. parentis, (1937), 1 T.L.R.(R) 208 were both discussed
in R.v. Dalpatram Harishanker Mehta, (1946) the court examined the character of the
witness, the nature and extent of his participation in the acts of the accused and the motive
which induced him. and, acting that the evidence of a person who take part in a police trap
stands on a higher plane then the ordinary accomplice, nonetheless said that the judge was
entitled ot hold that the witness required corroboration, as in Parentis case,. See R.v.
Katemi and another. (1910). 3 E.A.L.R. 79.
4 Other situations involving accomplices.
Examination of the following cases will illustrate how the rules concerning
accomplice evidence have been applied in different situations.
Bhimji Nathoo v.r. 91941) , 19 K.L.R. (2) 90, where the accused was charged under a
section of the Game Ordinance with having purchased two leopard skins without a permit,
the court held that the sellers of the skins. Who appeared as witness for the prosecution,
were accomplices.
Davda v.r. [1965] E.A. 201 (C.A) . Charge under the Prevention of Corruption Act.
s.3(1) of Tanganyika. Intermediary corruptly solicits for money for a third party. Both
intermediary and third party charged. avie v. D.P.P. applied. Held that there was ample
evidence that he person solicited and his brother were not accomplices; see discussion
pp.207-9.
Circulars to magistrates NO.13/1947, (1947), 22 K.L.R. (2) 80. Fact situation to
determine whether part played by one witness in charge of stealing and possession of stock
implicated him as an accomplice.
R.v. Awath him Ali and Others, (1918) 3 E.A.L.R. 82 - conspiracy, evidence of a
statement by one of several conspirators in reference to the common design is relevant for
showing parts taken by other conspirators. Witness held accomplice.
Haji Moledina v.R. [1960] E.A. 678 (U). witness not an accomplice on count no. 1,
demanding money with menaces, as the offence was complete when the demand was
uttered and there was no evidence establishing him as an accessory after the fact; on court
no.2 witness was accomplice (corruption) since he had bargained as to the amount of the
gift and other evidence materially corroborated his evidence.
D.R. Khetani v.R.,
[1957] E.A , application of principles of Davis v. D.P.P. to fact
situation to determine whether certain prosecution witnesses were accomplices and

required corroboration.
Abdulrasul s/o Jivraj v. R., (1931), 1 T.L.R. 667. When a witness admits he was
cognisant of the offence and took no steps to communicate his knowledge with a view to
preventing the commission of the projected offence, he must ordinarily be taken to be in
sympathy with the criminals and so to be a witness upon whose evidence a count will act
only after the closest scrutiny. Here the court drew no inference form hte silence f an
unsophisticated and presumably uneducated African who heard a European or an Indian
instigating the commission of an offence.
Presumably the courts today might take a
different view.
Israeli Kasukolse and Others v. R., (1956), 23 C.A. 521, 524,. It is well-settled that
an extra-judicial confession is to be treated as accomplice evidence and no weight is to be
given to it as against any person other than the party making it unless it is corroborated by
independent testimony; a fortiori when the confession has been retracted. (See chapter on
Confessions, s.32 K.E.A., infra.)
Mohamed Farah Musa v.R., (1956), 23 E.A.C.A. 469. Appellant had been convicted
on three counts, the first and second of harbouring, contra Emergency Regs. 8(E) (2), and
the third of withholding information contra Reg. 27. The witnesses knew of the harbouring
but their mere knowledge did not make them accomplices. Thus even if they and been
accomplices of the appellant on the charge of withholding information, so that
corroboration was necessary, that fact would not make them accomplices as regards the
first two counts, even though the offences were related.
Hilda Laperte and Another v. R, (1952), 25 K.L.R. 147, 151:- ... there mere
fact that a person addresses an illegal demand to another does not make hte
latter an accomplice in the offence constituted by the illegal demand.... we
refuse..... to admit that a person who is the victim of an illegal demand can be
said to be an accomplice to it. Of course... it is the law in Kenya that when a
person to whom a demand is addressed complies with it and gives a
pecuniary consideration which is taken, both the giver and the taker have
committed offence: And when money is said by a witness to have been given
in response to an illegal demand, his evidence as to the giving should be
regarded as the evidence of an accomplice.
Receiving. Charge of receiving stolen property. Evidence of thief.
Held that the evidence of a self-confessed thief, as an accomplice, required
adequate corroboration. George Migwa Wambugu v.R.., (1950), 24 K.L.R.
(1) 91. See also R.v. Bhaiji Murbhai, (1939), 6 E.A.C.A. 110. approved in
R.v. Taibali Mohamedhabi,
(1943), 10 E.A.C.A. 60. See also Murdin Ali
Rhemtulla and Another v.R., (1956),23 E.A.C.A. 430. For application to fact
situations, see Circular to magistrates No. 32/1946, (1946), 22 K.L.R. (1) 94;
Joseph Mbebi s/o Mati v.R. [1957] EA. 426 (K)
R.v. Fataki Sakhair,
(1920), 8 U.L.R. 11. Adultery.
Wife was held to be an
accomplice though not liable to prosecution and the evidence should not be accepted
without corroboration. (Note: if the recommendations in the Report of the Commission on
the Law of marriage and divorce is implemented, s.168 of the Law of Matrimony Act 196
will provide that adultery is an offence, and this rule may well become applicable in
Kenya.)
5 Corroboration
(a) Principles behind the requirement of corroboration in accomplice cases.
The Court in R.V. Hasahm Jiwa, (1949)
16 E.A.C.A 90, 94, quoted with approval
WOODROFFES LAW OF EVIDENCE, (9th Edn.), p. 952 which sets forth the reasons
why evidence of an accomplice must be treated with special rules:Principle - The testimony of accomplices, who are usually interested, and
nearly always infamous witnesses, is admitted from necessity, it being often
impossible, without having recourse to such evidence to bring the principal
offenders to justice. But the practice is to regard the statements of such
persons as tainted because, from the position occupied by them their
statements are not entitled to the same weight as the evidence of an
independent witness. Accomplice evidence is held untrustworthy for three
reasons.(a) because an accomplice is likely to swear falsely in order to shift the
guilt form himself;
(b) because an accomplice is a participator in crime, and consequently
an immoral person, is likely to disregard the sanction of an oath; and
(c) because he gives his evidence under promise of a pardon, or in
expectation of an implied pardon, if he discloses all he knows against these
with whom he acted criminally, and this hope would lead him to favour the
prosecuted.
See also R.v. Asumani Legeni s/o Muza, (1943), 10 E.A.C.A. 92 where the same principles
are reiterated.
(b) definition of corroboration.
The leading decision defining corroboration is R.v. Baskervile, 91916), 2 K.B. 658,
found in, for example, R.v. Manilal Ishwerlal Purchit, (1942), 9 E.A.C.A. 58, 61, where the
Court summarised the definition by saying:...the corroboration which should be looked for is, as laid down in R. v.
Baskerville... some additional evidence rendering it probable that the story of
he accomplice is true and that it is reasonably safe to act upon it. It must be
independent evidence which affects the accused by connecting him or ending
to connect him with the crime, confirming in some material particular not
only the evidence that the crime has been committed but also that he accused
committed it. It is of course not necessary to have confirmation of all the
circumstances of the crime corroboration of some material particular
tending to implicate the accused is enough and whilst the nature of the
corroboration will necessarily vary according to the particular circumstances
of the offence changed, it is sufficient if it is merely circumstantial evidence of
his connexion with the crime.
Corroboration may also be found in the
conduct of the accused.

It is obvious, of course, that it is not necessary that everything which the accomplice says be
corroborated or confirmed by other independent evidence, for if this were the case, the
evidence of the accomplice would not be necessary at all.
(c) findings and direction required
The first duty of the court is to make a finding that the is, in fact, an accomplice. As was
said in R. v. Ndaria s/o Kariuki and Seven Others, (1945), 12 E.A.C.A. 84, 86,: A paint which is sometimes lost sight of in considering accomplice evidence
is that the first duty of the Court is to decide whether the accomplice is a
credible witness. If the Court, after hearing all hte evidence, feels that it
cannot believe the accomplice it must reject his evidence, and unless the
independent evidence is of itself sufficient to justify a conviction the
prosecution must fill. If, however, the Court regards the accomplice as a
credible witness, it must then proceed to look for some independent evidence
which affects the accused by connecting or tending to connect him with the
crime.... But in every case the Court should record in its judgment whether
or not it regards the accomplice as worthy of belief. (emphasis added).
It should be kept clearly in mind the distinction between the need for a finding as to
whether the accomplice is worthy of belief and the basing of a conviction on
uncorroborated accomplice evidence. The words used continuously by the courts that it is
unsafe to convict (see below) on uncerroborated evidence do not mean that such a
conviction is illegal - see s. 141. In Uganda -v- Shah, [1966] E.A. 30, 31 (C.A.) the Court
said: It was argued for the respondent that hte learned resident magistrate in his
judgment, after directing himself correctly on the principles to be applied,
erred in his approach to the evidence of accomplices in that he reached he
decision that he witnesses were to be believed before he looked for
corroboration of their evidence.
The learned judge who heard the first
appeal upheld this submission, holding that the learned magistrate had put
the cart before the horse by first deciding that he believed the three
accomplies and then looking for corroboration. With respect, we cannot
agree and we think that there was nothing wrong in the learned magistrates
approach.
The absence of corroboration or he inadequacy of the
corroboration of the evidence of an accomplice is not of itself a reason for

disbelieving that evidence but merely preludes the court (save in exceptional
circumstances) from basing a conviction on it. Of course, quite apart from
any question of corroboration, a court should never accept or reject the
testimony of any witness or indeed any piece of evidence until it has heard
and evaluated all the evidence in the case. At the conclusion of a case, the
court weighs all the evidence and decides what to accept and what to reject.
When it accepts the evidence of an accomplice, it then, save as aforesaid,
looks at the other evidence which it has accepted to see if it affords

corroboration of the evidence of the accomplice.
Again in the headnote to R.v. Kipkering Arap Koske and Another (1949), 16 E.A.C.A. 135
where it was held that:........whether by law or practice corroboration is needed or not, the
testimony of a witness may be so utterly unreliable that no reliance whatever
can be placed on his evidence, and in such case no amount of corroboration
can render it safe to rely upon his evidence in support of a conviction. When
a witness is of this character, a conviction can only be had on entirely
independent and reliable evidence from another witness or other witnesses
proving the accused guilty of the offence.
After making - and recording - a finding that a witness is an accomplice, and whether he is
worthy of belief, if he is so worthy the court must make and record a direction to itself or
the assessors that it is unsafe to convict unless the evidence of this witness is corroborated
in some material particular. A sample warning is found in the guide to practical procedure
on p.82, infra The requirement of corroboration, while a rule of practice, has practically
attained the status of a rule of law, and it is only in exceptional circumstances that a
conviction based upon uncorroborated accomplice evidence will be upheld. (See (d) below).
When a court is in doubt as to whether or not witnesses are, in fact, accomplices and
use the same procedures as in cases where there is no doubt as to their status; as was done
in Kanyumbi s/o Katungi and Another, (1954), 21 E.A.C.A. 336. See also R,v. Ndaria s/o
Kariuki, (1945), 12 E.A.C.A. 84.
(d) Unsafe to convict in the absence of special circumstances.
The Court of Appeal in Ganisio s/o Walwa v. R., (1956), 23 E.A.C.A. 453 discussed
at length pre -Davies cases which suggested that a court should never convict on
uncorroborated accomplice evidence in the absence of special or exceptional
circumstances. and on p.456 said :-
It is moreover, to be noted that any rule of law requiring special or

exceptional circumstances to be proved in order to justify a conviction on
uncorroborated accomplice evidence would as seems sometimes to be
overlooked, be inconsistent with section 133 of hte Indian Evidence Act (s.
141, K.F.A.), which provides without exception or limitation that a
conviction is not illegal merely because it proceeds upon he uncorroborated
testimony of an accomplice.
The Court called this the practical desirability of, as opposed to the legal necessity for,
evidence corroborating that of an accomplice. (p.457)
In Davies v. D.P.P. said that the true rule had been accurately formulated in three
proposition:First proposition.
In a criminal trial there a person who is an accomplice gives evidence
on behalf of the prosecution, it is the duty of the judge to warn the jury that,
although they may convict upon his evidence, it is dangerous to do so unless
it is corroborated.
Second proposition:
This rule, although a rule of practice, now has the force of a rule
of law.
Third proposition:
Where the judge fails to warn the jury in accordance with this rule,
the corroboration of the evidence of the accomplice, unless the appellate
court can apply the proviso to section 4(1) of the Criminal Appeal act, 1907.
(Note: for a Kenya case applying the equivalent section of the C.P.C, s. 381(c) (now 382),
see Kantibhai C. Patel v.R., [1957] E.A. 890, 892 (K). However hte Revised Supplement,
1964, deleted the references to misdirection, both subs. (c) and hte word misdirection in hte
provise when jury trials were abolished. Patels case involved a trial before a magistrate
without jury or assessors, and it is submitted that application of the (then) s.381(c) was
technically incorrect. It is an arguable proposition that the section as it now reads is not
statutory authority for an appeal court upholding a conviction where there is a

misdirection on corroboration even though the section contains a reference to irregularity
in the judgment, although the practice of the Court of appeal is will to quash a conviction
and allow the appeal unless there is overwhelming evidence of corroboration which would
irresistably have led to the same conclusion despite the lack of direction.
Departure from the general practice of not convicting on uncorroborated evidence
is, however, justified in what the Court in Canisios case called exceptional cases. The
Court at p.458 set forth the determining factors as follows:... there are exceptional cases in which a departure from that general
practice is justified. The critierion as to whether such an exceptional case
has arisen is the credibility of the accomplice or accomplices combined with
the weight to be attributed to the facts to which they testify. The principal
factors to be considered when assessing their credibility are not only their
demeanour and quality as witnesses but also their relation to the offence
charged and the parts which they played in connection therewith, that is to
say, the degree of their criminal complicity in law and in fact. A departure
from the general rule of practice is only justifiable where, an applying the
criterion in that manner, is clearly appears that the accomplice evidence is so
exceptionally cogent as to satisfy the Court beyond reasonable doubt, and
where accordingly the judge or judges of fact, while fully conscious of the
general inherent danger of any such departure, is or are convinced that in the
particular instance concerned the danger has disappeared. (emphasis
added).
As to the degree of complicity see general discussion, para.(2) p.70), in R.v. Wanjara, (1944,
11 E.A.C.A. 93, the Court held that the witness was only an accomplice in a very
secondary sense owing to the circumstances of her complicity in the crime, and that
whilst corroboration of her evidence was desirable it was not essential.
Other examples of exceptional cases are Kichingeri and Others v.R.
(1908), 3
E.A.I .R 1 where the degree of complicity of villagers who assisted in putting a witchdoctor
to death (see p. 70 was held to be such that their evidence was not tainted in the same
manner as that of an ordinary accomplice in a crime. Cases which may be examined to
show circumstances where the courts have held it unsafe to convict, there being no
special circumstances justifying upholding the appeal are Wawa s/o Kilonzo v.R., (1950), 17
E.A.C.A. 152, R.v. Taihali Mohamedbhai (1943) , 10 E.A.C.A 60; r.v. Asumani Logoni s/o
Muza, (1943), 10 E.A.C.A. 92; Mohameddi s/o Saidi and Others v.R., (1944), 11 E.A.C.A.
93; R. v. Haji Mohammed Sale Mohamed; (1933), 15 K.L.R. 109, R. v. Thakar Singh,
(1934) 1 E.A.C.A. 110
(e degree of corroboration required may vary.
In Murdin Ali Rhamtulla and Another v. R, (1956), 23 E.A.C.A 430, counsel argued
that these two men are representative of the worst type of accomplice, and that their
evidence requires stronger corroboration than in the case of ordinary accomplices, and that
the learned Judge did not specifically address his mind ot the question that they were
accomplices of the worst type, so that he accepted as constituting corroboration particulars
which in the circumstances of this case were not sufficient, citing authority which held that
an accomplish who changes his story or whose credibility is otherwise strongly suspect
needs to be strongly corroborated. The Court of Appeal accepted this proposition, but held
there that the accomplices did not fall within that category.
(f) corroboration in part corroborates the whole.
Noting that the definition of corroboration in Baskervilles case includes hte words
confirming in some material particular, it should be kept in mind that if an accomplice is
corroborated, not only may that part of his evidence which is corroborated be relied but
also that apart which is not corroborated, the corroboration if a material part being a
guarantee of the truth of his evidence as a whole. See R. v s
Taichai Magamedbhai,
(1943), 10 E.A.C.A 60. see also: Fazel Jaffer v.R,g (1928), 1 T.L.R. 157.
(g) examples of what may or may not be corroboration
In as much as, in the words of R.V. Baskerville, the nature of the corroboration
will necessarily vary according to the particular circumstances of the offence charge., it is
not possible to give examples of corroboration which will cover more than a small variety
of circumstances. Reference to the cases cited on the subject will provide guidance as to the
approach of the courts in various instances, but there are certain cases which have
considered whether certain general kinds of evidence can amount to corroboration.
1 A witness may not corroborate his own evidence
Githae s/o Gathigi and Another, (1956), 23 E.A.C.A. 440, 441. The third item said
to have corroborated (the accomplices) evidence was the fact of his ability to point out to
the police where the deceaseds body had been buried. This involved he erroneous
proposition that a witness can corroborate himself.
In truth the only result of (the
accomplices) ability to disclose the site was to establish his credibility as a witness who
asserted that he took part in the burial; his disclosure of the site was no corroboration in
the true sense of that term, namely, independent testimony which tends to connect the
accused with the crime charged, for neither was it independent of (the accomplices)
testimony, nor did it implicate the appellants.
In R. v. Shah Hirji Popat, (1947), 22 K.L.R. (2) 38, the appellant was convicted of offences
under hte Price Control Regulations, and the evidence against him had been that of two
accomplices. The magistrate found corroboration of the evidence given by hte accomplices
in contemporaneous entries made by one of the accomplices in a personal book, and by the
other accomplice in his firmss cash book. The Court said on p.40:An accomplice cannot properly be held to have corroborated his own
testimony by his previous statement, if admissible, and whether written or
oral, any more than such testimony could properly be held to be
corroborated by the evidence of another accomplice... These previous book
entries written conemporaneously by the two accomplices... did not amount
to independent evidence affecting he appellant by tending to connect him

with the crime.
2. One accomplice cannot corroborate the evidence of another accomplice.
.... the witness Maina cannot be treated as corroborating Wambugu, since one
accomplice cannot corroborate another. Githae s/o Gathigi and Another v.R.,
(1956); 23 E.A.C.A. 440, 441. see also R.v. Atanas s/o Mwamere (1936) 17 K.L.R. (1)
60; R. v. Shah Hirji Popat, (1947), 22 K.L.R. (2) 38, 40.
3 More opportunity, as distinct from exclusive opportunity, will not suffice as
corroboration.
See Circular to Magistrates No. 3/1943, (1943), 19 K.L.R. (2) 93, setting forth the order in
R.v. James Okumbu s/o Ndenina,, Conf. Case 610/1942. Thus if there is evidence which is
independent of the evidence of the accomplice which indicates that the accused was the
only person who had opportunity to commit the offence, this would be sufficient
corroboration, but if it is shown that the accused was only one of several who had hte
opportunity, this would not constitute corroboration of the accomplices evidence.*
1. It is doubtful that the mere fact that an accused person did not deny statements
made by the accomplice is corroboration. It was held in Francis Barrrallon v.R., (1920), 8
E.A.L.R. 119 it was held that non-denial of an accomplices statement may be
corroboration of it. The Court here relied on he case of R.v. Feigenbaum, (1919), 14 Cr.
App. R. 1. In R. v. Juma s/o Mara, (19430, had been doubted in R.v. Keeling, 28 Cr. App.
App. R. 121, but neither of the East African decisions has been referred to since decided.
Similarly, in R. v. Gas Ibrahim, (1946), 13 E.A.C.A. 104, the accused was one of nine army
deserter. To avoid detection he killed a woman, and evidence against him was given by two
of the other deserters who had gone on their way without attempting to assist the woman.
The Court there held that although the witnesses were not accomplices to the act, yet in
these special circumstances they required corroboration, noting also that although nondenial of material facts by the accused when deposed to by the prosecution witnesses could
in certain cases constitute corroboration, lack of corroboration could not be remedied by
the mere fact that an accused puts up a false and perjured defence. Although neither of the
earlier cases were referred to in Ibrahims
case, the query remains as to whether there
would be a distinction between non-denial of statements made by an accomplice and nondenial of statements made by one not an accomplice but still requiring corroboration?
5. Circumstantial evidence may be corroboration.
The Court in Baland Singh v.R., (1954), 21 E.A.C.A. 209, 211 noted the distinction
between circumstantial evidence as corroboration and the basing of a conviction on
circumstantial evidence (see discussion,, Introduction, p. vii-ix supra):... circumstantial evidence, although not wholly inconsistent with innocence,
may be of great value as corroboration of other evidence. It is only when it
stands alone that it must be inconsistent with any hypothesis other than
guilt.
6. A lie told by the defendant may be corroboration.
From Bassan and Baukobia v.R., [1961] E.A. 521, 530 (C.A.):... a lie told by the appellant to a police offier was also capable of being
corroboration. in the latter connection the Lord Chief Justice (in Crodland v.
Knowler, 35
Cr. App. R. 48) said:
... one has to look at the whole circumstances of the case. What may afford
corroboration in one case may not in another. It depends on the nature of the
rest of the evidence and the nature of the lie that was told.
7. A statement made by an accused person, whether amounting to a confession or

not, may in a proper case amount to corroboration of accomplice evidence, even if the
statement is retracted by the accused after it was made.
See Bassam amd Watboa v. R., [1961] E.A. 521 (C.A.); S.G. patel v. R., [1957] E.A. 881 (K)
; R.v. Ndaria s/o Kariuki and Others, (1945), 12 E.A.C.A 84; Obeli v. Uganda [1965] E.A.
622 (C.A). If the accomplice is a co-accused. The rules re different; see discussion on s.31
K.E.A. in chapter of confessions. Although generally corroboration is required in the case
of retracted confessions; see Tuwamoi v. Uganda, [1967] E.A 84 (C.A.), in Bassans case it
was held that while it is true that, as a general rule, evidence which itself requires
corroboration
cannot
provide
corroboration
of
other
evidence
also
requiring
corroboration, retracted statements are not of the same quality as accomplice evidence,
therefore, a statement made by an accused person, whether amounting to a confession or
not, say in a proper case amount to corroboration of accomplice evidence.
8. A refusal to give evidence on oath cannot amount to corroboration of accomplice
evidence, which must itself be corroborated.
in Omari s/o Hassani, (1956), 23 E.A.C.A. 580 it was held that while a judge is entitled to
take into account a refusal to give evidence on oath, such refusal cannot be used to belster
up a weak case or to relieve the prosecution from proving its case beyond reasonable doubt,
nor can such a refusal amount of itself to corroboration of evidence which itself requires
corroboration, citing Jacksons case, 37 Cr. App. R. 43 at 48. See also Lubege v. Uganda,
[1967] E.A. 440 444 (C.A.).
9. A hearsay statement may not amount to corroboration.
In Lubeges case, supra, it was held that the trial judge had gone beyond what was allowed
by s. 155 U.E.A. (s. 165 K.E.A. - proof of consistency of former statements) by allowing the
evidence of one prosecution witness concerning what another prosecution witness had told
him to corroborate the evidence of the other witness.
10 Expressions of intention prior to the crime may afford corroboration.

In R.v. Okecha s/o Olilia, (1940), 7 E.A.C.A. 74 it was held that the evidence of a previous
threat, being an expression of intention, went beyond mere motive and tended to connect
the appellant with the killing. Similarly, Byamungu s/o Rusiliba v. R.,
(1951), 18
E.A.C.A. 233, where hte Court, citing Okechas case, said on p.235 that evidence of a prior
conspiracy to kill the deceased, although evidence of something antecedent to the crime,
with, if believed, afford good corroboration in law.
11 First report as corroboration.
See discussion under s. 165 K.E.A., infra, where evidence of a first report corroborates a
witnesss later testimony as to the same facts in the sense of showing consistency. See, for
example, Majabu Kizito v. R., (1955), 22 e.a.c.a. 458.
12 Evidence equally as consistent with the defence case as with the prosecution case
is not corroboration.
r.v. Munyambo s/o Mumo, (1939) 18 K.L.R. (2) 164 involved a charge of official corruption
where the accused had made entries in his register purporting to show that three women
were dead, whereas in fact they were alive, and he was alleged to have received a bribe in
connection with each entry. His defence was that he entered the register in accordance with
information given him by a headman, and that if it was incorrect, it was not his fault.
Evidence was given by witness held by the court to be accomplices. The court said on p.
165: Were the evidence supported by the entry in the register showing that a
woman who was alive was entered as dead and the entry was in the accuseds
handwriting then, in the absence of an explanation that might reasonably be
true, that would be corroboration of the accomplies evidence. But where, as
in this case, the register is or may be consistent with the defence that the
entry as made on representation of the headman Kitati that the woman was
dead, then the position is different, for the register in such a case does not
corroborate the commission of hte offence charged in any way.Fashinder
Rai v. King Emperor, I.L.R. Patna, Oct. 1939, part X, 704 cited as authority,
wherein it was said:Even, however, could (the evidence) have been accepted, it did not amount to
corroboration, because it was equally consistent both with the version of the
prosecution and with that of the defence.
There are a number of other situations where corroboration is
required, for
example corroboration of the evidence of children, on examination of those instances and

cases cited will provide additional examples of the application of the general rules.
For the relief regarding the requirement for corroboration of the evidence of a thief in
trials for receiving (see p.63 et seq.) see Joseph Mbati s/o Mati v. R.,[1957] E.A. 426 (K),
and Gecree Kigwa Wambugu v. R., (1950), 24 K.L. R. (1) 91. In the reverse situation, a
trial for theft when the receiver is a witness, although the receiver was (before Davis v.
D.P.P.) not an accomplice of the thief unless he participated in hte theft (whereas the thief
was an accomplice in the crime of receiving), his evidence was considered no better than
that of an accomplice, and the general rule that it is generally unsafe to convict in the
absence of corroboration was applied; Mikidadi s/o urari and Another v. r., (1952), 1 T.L.
(R) 368.
(h) Procedural notes,
When the Indian C.P.C. was in effect, under s. 337 a court could tender a pardon to
a person accused, on the condition that he make a full disclosure of the.. of his knowledge
concerning the circumstances of the offence, and it was held that the evidence of a witness
suspected of being an accomplice should not be accepted until the pardon was tendered and
his evidence was freed from the suspicion of being dictated by self-interest; R. v. Ouma s/o
Achoda, (1915), 2 U.L.R. 152, although the person so pardoned was still on accomplice and
it was unsafe to convict in the absence of corroboration; R.v. Bagunda Lwakikara and
Others, (1920), 3 U.L.R.1. The present C.P.C. in effect contains no similar provisions for a
tender of a pardon, but is interesting to contrast this approach with the present decisions
on procedure.
In R.v. Umari bin Abdalla, (1942), 20 K.L.R. (1) 81, the Court noted that if there
were two accused charged with the same offence, and hte first pleads guilty, the second
pleading not guilty, and then the first gives evidence against the ............. it is desirable that
sentence be passed on the first accused before the trial of the second accused,. Similarly in
R.v. Sabakaki and Lewe, (1919), 2 U.L.R. 308, there was a joint trial for theft and receiving.
The second accused pleaded guilty and was then examined by the magistrate, giving
answers which implicated the first accused as a thief. The second accused was then
convicted and sentenced and evidence was aken from him and recorded in the same file,
and on this hte first accused was convicted. The Court held that hte first accused should
have been discharged at the conclusion of the case for the prosecution, and if it had even
desired to proceed with the case against him a new trial should have been instituted, in
which the second accused could have been called as a witness.
A practical procedure for use when dealing with accomplice evidence.
The following procedure, in outline form, with reference to pages of the text where
the substantive law if found, should be of assistance in ensuring that the attention of the
magistrate is drawn to the requirements of the law and that the case record accurately
reflects these requirements.
1. Determine whether a particular witness is an accomplice (definition,p.69,) or should be
treated as an accomplice.
2 Make a finding that the witness is an accomplice or should be treated as an accomplice
and record that finding on the cs record. (Para.5(c), p. 75).
3. make a finding that the witness is an accomplice or should be treated as an accomplice
and record that finding on the case record. (Para.5(c). p.75).
3. make a finding as to whether the accomplice is unworthy of belief, and reasons for this
should be given), disregard his evidence and indicate on the case record that you are doing
so.
4. If you decide that the accomplice is worthy of belief, proceed to lack for corroboration of
his evidence (definition, para. 5(b), p. 75).
6. If you find corroboration for the evidence of the accomplice, record this fact on the case
record and explain what this corroboration is.
7. If you do not find corroboration for the evidence of the accomplice, record this fact
on the case record.
8.If the evidence of the accomplice is the only evidence upon which hte accused could be
convicted, and if you do not find
corroboration for his evidence, you should warn yourself
on the case record in words similar to the following:I now warn myself that since A in an accomplice, even though I have found
him to be worthy of belief, and though I am aware that s.141 K.E.A. provides
that a conviction shall not be illegal because it proceeds upon the
uncorroborated evidence of an accomplice, nevertheless it is dangerous to
convict in the absence of corroboration unless there are exceptional
circumstances which provide strong reasons for doing so.
9. Examine the criteria laid down in Canasics case, s.70, and determine whether you have
strong reasons for convicting. Record there are strong reasons in the case record. It would
be well to cite Canacids case ...................................
10 If you do not have strong reasons for convicting despite the lack of corroboration, state
on the case record that after reviewing the criterion in Canicis case, the required
exceptional circumstances do not exist and acquit.
In all instances of doubt the authorities cited should be consulted before making a decision.
The Court may....
(c)
that
bill
of
exchange,
accepted
or............................................................................
Consideration is defined in OSBORN:-
or
endorsed,
was
accused
A valuable consideration in the sense of the law may consist either in some
might, interest, profit or benefit accruing to the party, ow some appearance,
detriment, less or responsibility given, suffered or undertaken by the other.
The Kenya law on bills of exchange is found in the Bills of Exchange act, (Ca.270. It is
important that he negotiability of bills of exchange be preserved, therefore, since these
financial instruments are solemnly executed and because hte existence of consideration can
reasonably be inferred, the law raises a presumption in favour of the instrument.
Application of hte presumption, although not specifically mentioned as falling under
s. 114 I.E.A or illustration (c), may be mean in the following cases. Note also how this
presumption affects hte procedure and burden of proof.
Nanalal Vrajadas v. Chnilal Dhanji Mehta, (1946), 13 E.A.C.A. 58. Enishi merhiji Dhanani
v. Amratlal hirachand Ltd., 91953), 26 K.L.R. 18. S.S. Rawal and another v. Rataan
Sinma Thakkar Singh,(1956), 29 K.L.R. 98
Patel Brothers v. H.D. Hasmani, (1952), 19 E.A.C.A. 170
It should be noted that s.30(1) of the Bills of Exchange Act contains the presumption of
value and good faith, under which the above cases were decided.
The Court may presume (d) that a thing or ... of that things which has been shown to be in existence within a
period shorter than that within which such things or states of things usually cease to exist,
is still in existence.
Example
It is proved that a river ran in a certain course five years age, but it is known that
there have been floods since that time which might have changed its course. Does the
maxim apply?
Application of this presumption is illustrated in Kanji and Kanji v. R., [1967] E.A.
411, 415 416 (C.A.) , wherein the appellant had been convicted under ss. 23(1) and 75 of the
Factories Ordinance (Cap. 297, now the factories act, Cap. 514) of Kenya, of causing bodily
injury to a person by failing o fence securely the feed aperture of a sisal decorating
machine. The magistrate made a finding upon hte condition of hte machine on the date of
the accident from the evidence of a Factory Inspector who had inspected hte machine about
five months after the accident. On appeal the appellant company argued that the machine
might have been securely fenced at the time of the accident and that the magistrate should
not have acted upon a report that it was not fenced five months later.
The Court, after
citing the section, said: Illustration (d) of the illustrations set out to the section is relevant to this case and
it reads:(quoting illustration (d)
The learned author of SARKAR ON EVIDENCE (10th Edn.) at p. 901 remarks that
s. 114 crystallises the principle of ordinary common sense. At p.910 he says, in
relation to illustration (d):
This illustration is founded on the presumption in favour of continuance or
immutability. It is a very general presumption founded on the experience of
human affairs, that states of mind or things once proved to have exited
previously or subsequently in a particular state are to be understood as
persisting or continuing in that state until the contrary is established by
evidence either direct or circumstantial..... The presumption of continuance
which is one of fact and not of law, will, however weaken with the remoteness
of time, and only prevails till the contrary is shown, or a different
presumption arises form the nature of the case... The limits of time within
which inference of continuance possesses sufficient probative force to be
relevant, must obviously vary with each case - always strongest at the
beginning, the inference steadily diminishes in force with the lapse of time at
a rate proportionate to the quality of permanence belonging to the fact in
question... So far then as the interval of item is concerned, no fixed rule can
be laid down; the nature of the thing and the circumstances of the particular
case must control....
The Court accepted these statements as a correct statement of the law in
relation to the case, and, distinguishing between Indian cases and English law
(HALSBURYS LAWS OF ENGLAND(3rd Edn.), vol.15, p.283) said:We see nothing in hte wording of s.114 to justify the proposition (that
s.114 did not allow a court to presume backwards) and are of opinion
that in a proper case a retrospective presumption may be drawn form
a proved fact.
Applying the law as stated above to the facts of the instance
case, we are quite unable to say that the learned magistrate was
wrong in law to presume that hte machine in question was in the same
condition in April as it was in September. It is true that a substantial
period of time intervened, but, as the learned judge said, a piece of
machinery is unlikely to undergo physical change in a matter of
months. In addition, the evidence in fact provided some support for
the presumption that the condition of the machine had not changed...
In the absence of any suggestion that some difference existed, we think
the learned magistrate was entitled on the evidence to same that there
had been no material change in the condition of the machine,(p.417.
Another example of application of the presumption in this context is D.P.P. Tanzania
v. Nathani, [1966] E.A. 13 (C.A.). here the accused was charged with forging with intent to
deceive an E.A.A. air ticket purporting to have been issued in Zanzibar. The accused was
licensed to issue such tickets form Zanzibar, but not from Dar-es-Salaam, form where it
was alleged the ticket had actually been issued. In proving that the dar-es-salaam office
was not licensed the prosecution introduced a cyco-styled loose-leaf volume as an official
agency list issued by the International Air Transport Association on February 1, 1965. The
Court said on p.16:It was urged by counsel for hte respondent that, even if the document was
admissible, nevertheless it did not prove the position as to any date other
than February 1, 1965. This submission, of course, goes to the weight of hte
evidence of the document as opposed to its admissibility, and the question of
its weight depends on a number of factors. The dates charged in the counts
were either shortly before or shortly after February 1, 1965, and in no case
was the period longer than forty days. (Counsel) stated that, in spite of
repeated requests by the respondent for approval of the Dar-es-Salaam
office, it had not been approved. It is only if it had been approved that it
would be listed and it was not suggested by the respondent that the Dar-essalaam office had either been approved or listed. In hte circumstances it
seems to us that the resident magistrate was entitled to presume under s.114
of the Evidence Act that the position was the same on each date charged in
any count as that shown in the agency list on February 1, 1965 (See kanji v.
R.). We consider, accordingly, that the resident magistrate was justified in
coming to hte conclusion that the Dar-es-salaam office was neither approved
nor listed at the relevant dates.
-----------------The Court may presume (c) that judicial and official acts have been regularly performed.
Example:- a judicial act, the regularity of which is in question, was performed under
exceptional circumstances. Does the maxim apply?
Generally speaking, as a matter of public policy, where there is general evidence of
things having been properly and regularly done, courts will not require proof of
circumstances which are required for the acts to be valid, but which probably were done.
Where, however, under an act, certain things are required to have been done before any
right or obligation is incurred, such as the giving of a notice, no presumption can be made
in favour of the act having been done, and it must be proved to have been done.
In Commissioner of Income Tax v. Armstrong, [1963] E.A. 505, 513 (C.A.) , a
direction had been made by the Commissioner in proceedings involving a tax assessment.
The taxpayer appealed the assessment.
There was no evidence in the case that the
Commissioner had considered whether the assessment was just and reasonable. The Court
in discussing the application of the presumption said :... but in any event, in my view, the matter is put beyond doubt by
illustration (e) .. this section (s. 114 1E.A.) authorities the presumption that
an official act, which is proved to have been performed, has been performed
regularly; and this is a presumption which is not lightly over-ridden. Here
there is no doubt that the official act, that is, the making of a direction, has
been performed and the only question is whether it has been performed
regularly. On that question it seems to me that the court should, under s.114,
presume that it has been performed regularly; that is, that the Commissioner
has considered that the adjustments which he directed to be made were both
just and reasonable as well as appropriate in the absence of any evidence
that he failed to consider such matters.
In A-g V. Shivji Naran Punja, [1961] E.A. 652, 668 (C.A.), NEWSOLD, J.A., speaking in
dissent in an immigration case made this observation:His passport shows that a re-entry pass, valid till December 12, 1953, was
granted on December 13, 1951, and that he re-entered Kenya on November
17, 1952. as there was no evidence relating to the circumstances in which the
re-entry permit was grated, it must under s.114 of the Indian Evidence act, as
applied to Kenya, be presumed to have been lawfully granted unless it was
granted directly or indirectly by reason of a misrepresentation or nondisclosure of a material fact.

a.When is the presumption applied?
There must be evidence to show that the act has been performed before the
presumption will be applied. An example involving he situation where a magistrate refused
to apply the presumption when requested to do so by the prosecution is R. v. Kitha, [1961]
E.A. 568 (U). Here the magistrate had refused to presume that a Chief Secretary was
acting under authority conferred by the Governor under s.16 of the Interpretation and
General clauses Ordinance when he made rules. After discussing the Uganda equivalents
to s. 4 and 119 and quoting form WOODROFFE ON THE LAW OF EVIDENCE (9th
Edn.), p.126:this section (.4) renders it is judicial discretion to decide in each case
whether the fact which under s.114 may be presumed has been proved by
virtue of that presumption. Circumstances may, however, induce hte court to
call for confirmatory evidence.
and holding certain cited English authorities not applicable, the Court again quoted
WOODROFFE, p.808:This section (s.114) authorises the presumption that a particular judicial or
official act, which has been performed, has been performed regularly; and
the presumption can only be overturned by a strong evidence. But it does not
authorise the presumption without any evidence that the act has been
performed.
and continued:- (p.571)
Reading the two sentences together and attempting to apply the principles
therein set out to the facts of the instant case, it would appear that had there
been evidence of a direction by the government under s. 16 of the

Interpretation ordinance, the court would have been entitled to presume that
the direction had been properly given, but that it would not be entitled to
presume that a direction by the Governor had been given in the absence of
evidence of that fact. I am fortified in this view by the construction which
the courts in India have placed upon s. 114 of hte Evidence Act.
The application of s.4 of the at may sometimes be lost sight of, and once hte act has been
proved, it is within the discretion of hte court ... either regard such fact as proved, unless
or until it is disproved, or... call for proof of it.
in the majority of instances the
presumption will, of course be applied, but it is submitted that the matter was incorrectly
stated by hte Court in E.A. Power Co. v. Dandora Quaries, [1967] E.A. 728, 733 (K) where
it was said:There is a well known maxim ominia praesumuntur rite esse acta which
requires me to presume that all ats, especially judicial and official acts, are
rightly an regularly done. The substance of this maxim is incorporated in s.
119 of the Evidence act. There is no evidence to rebut the presumption. I
presume therefore the 1922 licence was renewed in proper time and that the
1962 renewal was also made in accordance with the procedure laid down by
law. (emphasis added)
This is putting the matter too high when the discretion given to a court by virtue of s.4 is
considered, and it is submitted that the decision should have reflected instead that once hte
act was proved, the court had a discretion to apply the presumption,, and that, having so
applied it, and there being no evidence to the contrary, the acts were presumed to have
been proper.
-----------------The Court may presume -
(f) that the common course of business has been followed in particular cases.
Example The question is whether a letter was received. It is shown to have been posted, but
hte usual course of deliveries was interrupted by serve floods in Nyanza. Does the maxim
apply?
Once a course of business has been proved, it is within the discretion of the court to
presume or not presume whether that usual course of business was followed in a particular
case. Facts showing the course of business are relevant under s. 16: sec. p.23.
Questions concerning the operation of the presumption in connection with the
posting of a letter arose in The Bugosa Miller & Industries Ltd. v. P.C. Patel, (1955); 22
E.A.C.A. 348. Here the question was whether a certain communication making a demand
for production of a certificate had been received. The Director of the Company sworn that
he had never received a communication. A clerk for hte respondent Patel produced a copy
of a letter making a demand and a postage book which he said showed that a letter was
posted to the Company on that date. He added that if the letter was returned by the Post
Office it would be filed. These facts were admitted in evidence without objection. The
Court of Appeal discussed hte presumption relating to posting of letter in the course of
business as follows- (p.350)
There may of course be a presumption that a letter correctly addressed and
dispatched by the usual course of post will be received by the addressee but
there is in fact in the instant case no evidence that the letter was correctly
addressed. The postage book, exhibit 3, has unfortunately disappeared and
we do not know whether it showed how the envelope was addressed, but I
would not be prepared to hold that the address as shown on exhibit A was
sufficient. (Exhibit a was a copy of hte letter;
The Court then went on to discuss the inefficiently of the address and came to the
conclusion that in this instance proof of posting was not sufficient to justify the
presumption of delivery, although the case was decided on other grounds.
The course of business referred to may be either public or private business, but
the inferences which may be drawn from the course of business followed will depend upon
hte circumstances of each case, for there is a great deal of difference in the way in which
procedures are followed in a large public office such as the Post Office, or a bank or
mercantile firm with set procures, and those followed by an individual engaged, for
example, in the retail trade.
Whether sufficient regularity in a particular course of
business exists to make it probable that the customer or procure would be carried out in
every instance depends upon the facts.
--------------------The court may presume(g)
that evidence which could be and is not produced would, if produce, be
unfavourable to the person who withholds it.

Example the prosecution fails to call a witness those evidence is important in unfolding the sequence
of events in the commission of an offence.
RANTALAL notes, p.252: The conduct of the person withholding the evidence may be attributed to a
supposed consciousness that the evidence, if produced, would operate against
him. in a criminal case failure to give evidence of relevant facts leads to the
presumption that evidence which could be produced and is not produced
would, if produce, be unfavourable to the person who withholds it. Though
the prosecution is not bound to call all available witnesses irrespective of
considerations of number or reliability, witnesses essential to the unfolding of
the narrative on which the prosecution is based must be called by the
prosecution, whether in the result the effect of their testimony is for or
against the case for the prosecution.. In order to entitle the Court to draw
inferences unfavourable to the person withholding evidence; the opposite
party must satisfy the Curt that such evidence was in existence and could be
produced.
A question may arise as to when someone is, in fact, withholding evidence. In Ali
K. Virni v. united Africa Co., [1958] E.A. 204, 210 (C.A) it was said:The cross-examination of Mr. Waller was mainly directed to the issues of
fraud and illegality and Mr. Grimble still remained wholly in the dark. in
these circumstances it would be quite wrong to apply against his clients the
presumption permitted by illustration (g) to s. 114 of the Indian Evidence act.
There was no withholding of any evidence by them in this case, but merely a
failure to appreciate the desirability of calling it.
The presumption, when applied against an accused, must not be used either to fill
in the gaps in a prosecution case or considered to shift the normal burden of proof from
the prosecution, for example, in
R.V............................................................. the accused,
charged with murder, told A story that he had seen he deceased lying in the road, having
arrived after he had been assaulted, and that he then went up to the deceased and picked
up the sworn with the had been killed. At the police station the accused id not tell this
story, it being related only at the trial. The Court at p.102 said:This failure to report what he had seen as soon as he arrived at the station
strikes us as significant and inexplicable.
If his story were true the obvious thing for him to do would be to tell it to hte
Police at once however distraught he might be. If he had done, he could have
given evidence to that effect and the Police witnesses could have been crossexamined to support him. As it is put in hte Indian case of Isar Singh v.
Emperor,
24 I.C. 585, refered to in WILLS ON CIRCUMSTANTIAL
EVIDENCE, 7th Edition, page 109, when no prima facie case has been
made against the accused, it is open to the accused to rely safely on the
presumption of innocence or on ht infirmity of the evidence for the
prosecution. But when a prima facie case is made out and the presumption
of innocence is displaced, then the force of circumstantial evidence is
augmented whenever the party attempts no explanation of acts which he may
reasonably be presumed to be able and interested to explain. That is to
some extent an application of illustration (G) to s.114 of the Indian Evidence
Act which provides... This presumption cannot be used by the prosecution in
a criminal case to fill up gaps in their evidence but it is reasonable to draw an
inference against the accused when, as here, a strong case has been made cut
against him an he omits to adduce evidence of his having done the one thing
which one would have expected him to do if his story as to finding his
cuonded friend and rushing to report is ture, such evidence being evidence
which, if in fact he did so report, it was easily within his power to produce.
(App. 101-1-2, emphasis added).
In Laila Jhina Mawji and another v. R., (1955), 22 E.A.C.A. 524, the wife of the accused
threw away a clock, which was not recovered and was, therefore, not available for
identificaiton as stolen property, although there was evidence that the clock had been seen
on the wall of the appellants house. The court not only supported the application of the
presumption by the magistrate: Nor can we say that the magistrate made a wrong use of the presumption because
there was evidence which made it so highly probable that the clock seen on the wall
was the complainants clock, that its non-production in evidence consequent on the
male appellants act, rendered it safe to apply the presumption that had the clock
been in evidence its production would have been adverse to the defence. (p.529).
but held that the presumption applied against both the wife, who threw the clock away, and
the husband who had adopted the wifes act, making the default as much his as hers.
The presumption can be applied to an accused only where he fails to call witnesses
who are available to him and are not prosecution witnesses. Abdi Elmi and Others v. R.,
(1956), 23 E.A.C.A. 568 at p. 569 where the Court in support of the proposition cited
WOODROFFE, (9th Edn.) p. 814:If the prosecution does not discharge its duty of producing all its available
evidence, it is no answer to say that the accused, who has no such duty cast
upon him, might have produced that evidence. No inference unfavourable to
the accused can be drawn in such a case against him.
The relation of the resumption and the onus of proof was discussed in Abdul Ali Kassum v.
R., (1955), 22 E.A.C.A. 530, 532 where the appellant argued that the judge on first appeal
had misdirected himself.
Referring to the absence of any evidence to support he
appellants explanation and, in particular, to the failure to call two witnesses who,
according to the appellant, had originally required the coffee which the appellant was
accused of having received with guilty knowledge; the judge had said:Section 114 (of the Indian Evidence act example (g) has to be used
cautiously, but I consider that the learned magistrate was entitle to draw an
adverse inference against the appellant, especially bearing in mind the
special onus on an accused in a case of this nature, an onus which is not
present in most criminal proceedings.
Counsel contended that if hte judge meant b onus what in law is meant by the word, it
was a patent misdirection an could only be defended by saying that he did not mean what
he said. The Court said:The passage is certainly very unhappily worded but we think, taking the judgment
as a whole and bearing in mind that the learned Judge had shortly before been
considering the presumption which may be drawn form recent possession of stolen
goods, he meant nothing more than to say that that presumption, if drawn, would
justify a conviction unless the accused person can put forward an explanation which
may reasonably be true; and that, when such an explanation is put forward, it is
reasonable for the court to expect that, if there are available witnesses who might be
expected to support it, if true, they will be called; and if they are not called the court
may take this circumstance in to consideration when assessing the reasonableness of
hte explanation.
----------------------The Court may presume (h) that, if a man refuses to answer a question which he is not compelled to answer
by la, the answer, if given, would be unfavourable to him.
As concerns the credit of a witness, this presumption should be read with. 2.157(3):(3) The court may, if it sees fit, draw form the witnesss refusal to answer, the
inference that the answer, if given, would be unfavourable t the witness.
This presumption is much like hte presumption in (g) above, but it does not
contemplate the case of witnesses who are not compelled to answer on the grounds of
privilege; see discussion ss. 129-136 infra.
----------------The Court may presume(I) that when a document creating an obligation is in the hands of the obliger, the
obligation has been discharged.
Example A borrows money form B and gives him a signed note. At the time of the trial where
B is suing A for non-payment of the debt, the signed note is in the possession of. A. The
presumpitn is that the loan has been repaid. But what is the case if the circumstances are
such as to indicate that a may have stolen hte note form B?
-----------------
Some presumptions have been embodied in statutes; see, for example the
presumption of sanity, s.11 P.C., the presumption of value and good faith under s.30(1) of
the Bills of Exchange Act (Capl27), see p.83. Other presumptions have been applied in
various circumstances by the Courts, and an illustrative list for examination is given
below:Bishen Singh Chadha v. Mohinder Singh and Another (1956, 29 K.L.R. 20 - no
presumption of advancement arises in Kenya in favour of a Sikh son of Sikh father by
reason of the father having paid the purchase price of property situated in Kenya and
taken a transfer thereof in the name of the son.
Stjernholm v. Stjernholm, (1955), 28 K.L.R. 183 - divorce, presumption of
acquiescience from excessive delay in filing petition.
Dar-es-Salaam v. Twentsche, [1967] E.A. 224 (.) - no presumption of dedication of
public street. But see also Ngambo Estate v. Sikh Saw mills, {1957] E.A. 537, 539 (C.A.)
Joosab Jacob and Others v. Administrator-General of Zanzibar, (1946), 13 E.A.C.A.
38 - presumption of ownership.
R.v. Allibhai Mitha, (1945), 12 E.A.C.A. 54 - presumption under s.78 U.E.O. that
evidence recorded was evidence given; see s.84 K.E.A.. infra.
Wanjiku v. macaria, [1968] E.A. 216 (K) - presumption of validity of marriage;
evidence of ceremony followed by cohabitation; what evidence to the contrary required to
rebut presumption.
It should be noted that ss. 83-96 K.E.A. deal specifically with presumptions as to
documents, and are covered in the chapter on Documents, infra.
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: 1.
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;
2.
Where statutes decree that certain things be judiciary noticed e.g. certain certificates
that judges will decree should be taken judicial notice of;
3.
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.
4.
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.
Sections 60 enumerates matters that the court should take judicial notice of.
60.
(1)
The courts shall take judicial notice of the following facts:-
(a)
All written laws, and all laws, rules and principles, written or unwritten,
having the force of law, whether in force or having such force as aforesaid
before, at or after the commencement of this Act, in any part of Kenya;
(b)
The general course of proceedings and privileges of Parliament, but not

the transactions in their journals;
(c)
Articles of War for the Armed Forces;
(d)
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;
(e)
The accession to office, names, titles, functions and signatures of public

officers, if the fact of their appointment is notified in the Gazette;
(f)
The existence, title and national flag of every State and Sovereign
recognized by the Government;
(g)
Natural and artificial divisions of time, and geographical divisions of the

world, and public holidays;
(h)
The extent of the territories comprised in the Commonwealth;
(i)
The commencement, continuance and termination of hostilities between

Kenya and any other State or body of persons;
(j)
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;
(k)
The rule of the road on land or at sea or in the air;
(l)
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.
(m)
The meaning of English words;
(n)
All matters of general or local notoriety; (things that everyone knows)
(o)
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 contentions 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;
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.
FACTS NOT REQUIRING PROOF JUDICIAL NOTICES

There are certain instances when facts need not be formally proved.
a. Facts Admitted in Civil Proceedings.
61. No fact need be proved in any civil proceeding which the parties thereto or their
agents agree to admit at the hearing, or which before the hearing they agree, by
writing under their hands, to admit, or which by any rule of pleading in force at the
time they are deemed to have admitted by their pleadings.
Provided that the court may in its discretion require the facts admitted t be proved
otherwise than by such admission.
..........
The duty of the court is to resolve issues on which the parties disagree. If both parties
in a civil suit agree on certain facts, it is only common sense that the time of the court not be
taken up with requiring the parties to prove that about which there is no dispute. Indeed in
certain cases all the facts are agreed upon, and the only matter before the court is the
application of the relevant law.
One of the rules underlying the rule is the necessity for determination of the "facts in
issue" (s.3) so that the evidence can be directed towards the issues which must be determined
by the court, and not towards irrelevant matters. In NOKES at p. 31 it is said:"In civil proceedings the facts in issue are determined partly by the substantive law
regulating the claim, and partly by the written pleading of each party, which is served
on the other side before the hearing. Thus, in an action for breach of contract for the
sale of goods by sample, the plaintiff's allegations will usually depend upon the rule of
law that there is an implied condition that the bulk shall correspond with the sample in
quality, which includes state or condition.
His statement of claim .... will allege, among other things, the making of the contract, its
material terms, the quality of the sample and that the goods delivered in purported
performance did not correspond in quality with the admitted quality of the sample. The
written defence may admit all these allegations except the last. Then the principle fact in issue
will be whether the bulk correspond in quality with the admitted quality of the sample. The
paintiff's evidence will be mainly directed to this fact, though evidence may also be necessay to
prove the amount of the damages."
Every allegation of fact in the complaint, if not denied specifically or by necessary
implication, or stated to be not admitted in the pleadings of the defendant, shall be taken to be
admitted.
The procedures folowed by parties in civil suits are found in the Civil Procedure
(Revised) Rules, 1928, as amended, specifically as to the above in Orders VI and VII.
The section does not apply to criminal procedings. Just before enactment of the
K.E.A. in 1963 the case of Selemani v. R., [1963] E.A. 442 (T) noted that the application of the
section to criminal proceedings had not been argued before the Court, however the inclusion
of the word "civil" in the section as enacted definately precludes its application.
b. Judicial Notice.
59. No fact of which the court shall take judicial notice need be proved.
........
60.(1) The courts shall take judicial notice of the following facts (a) all written laws, and all laws, rules and principles, written or unwritten, having
the force of law, whether in force or having such force as aforesaid before, at or after the
commencement of this Act, in any part of Kenya;
(b) the general course of proceedings and privileges of Parliament, but not the
transactions in its journals;
(c) Articles of war for the Kenya Military Forces;
(d) (deleted by L.N. 22/1965)
(e) the public seal of Kenya; the seals of all the courts of Kenya; and all seals which
any person is authorized by any written law to use;
(f) the accesson to office, names, titles, functions and signatues of public officers, if
the fact of their appointment is nofied in the gazette;
(g) the existence, title and national flag of every State and Sovereign recognized by
the Government;
(h) natural and artificial divisions of time, and geogtraphical divisions of the world,
and public holidays;
(i) the extent of the territories comprised in the Commonwealth;
(j) the commencement, continuance and termination of hostilities between Kenay
and any other State or body of persons,
(k) the names of the members and officers of the court and of their deputies,
subordinate officers and assistants, and of al officers acting in execution ofits process, and also
of all advocates and other persons authorized by law to appear or act before it;
(l) the rule of the road on land or at sea or in the air;
(m) the ordinary course of nature;
(n) the meaning of English words;
(o) all matters of general or local notoriety;
(p) all other matters of which it is directed by an written law to take judicial notice.
(2) In all cases witin subsection (1) of this section, and alsoon all matters of public
history, literature, science or art, the court may resort for its aid to approriate books or
documents of reference.
(3) If the court is called upon by any person to take judicial notice ofany fact, it may
refuse to do so unless and until such person prduces any such book or document as it
considers necessary to enable it to do so.
If a fact is one of which the court may take judicial notice, as set forth in s.60, it need
not be proved (s.59) as defined in subs. (2) and (3) of s.3. Judicial notice merely dispenses with
proof, but the notice itself is not conclusive, and the fact may be disputed by the opposing
party.
SARKAR (pp.564 - 5) notes that the list of matters enumerated in s.60 is by no means
exhaustive, it being impossible to make a complete list.
"Moreover, the framer of the Act, Sir James Stephen himself, says in his Digest, Ìt
may be doubted whether an absolutely complete list could be framed, as it is
practically impossible to enumerate everything which is so notorious in itself, or so
distinctly recorded by pubic authority that it would be superfluous to prove it' (Steph.
Dig. notes to Art. 58)".
The following are illustrative of instances in which the courts in east Africa have taken
judicial notice of various facts:-
Commissioner of Customs v. S. K. Panachand, [1961] E.A. 303, 318 (C.A.), see p. 30 for
discussion under s. 110 K.E.A.:It may be that the court might take judicial notice of the distance between Nairobi and
The Hague and infer that the bringing of a witness to Nairobi from the Hague in
relation to this particular case would be unreasonable."
Katikiro v. A.-G., [1959] E.A. 382, (C.A.).
"I think that the court is entitled to look at the whole agreement. Moreover, the 1955
Agreement was directed, by s. 2(1) of the Buganda Agreement Order-in-Council, 1955,
to be published in the Uganda Gazette and it was so published. I think that on that
ground we could take judicial notice of it: see the commentary on s. 57 of the Indian
evidence Act (from which s.55 of the Uganda Evidence Ordinance is taken) in
WOODROFFE & AMIR ALI'S LAW OF EVIDENCE (9th Edn.) at p. 489 and
PHIPSON ON EVIDENCE (9th Edn.) at p. 23 and p. 349."
Saleh Mohamed v. R., (1953), 20 E.A.C.A. 141. On laws in force:- (from p. 142).
"Two points have been taken on this appeal:(a) That the Magistrate wrongly took judicial noice of the fact that that sugar was
found in a prohibited area. ...
The Appellate Court below dismissedthe first point on the ground that a Court is
entitled to take judicial notice of all the Ordinances and Regulations enacted in Kenya. That
is a correct applicaation of section 57 (1) of the Indian Evidence Act which applies to Kenya,
viz:`The Court shall take judicial notice ... of all laws or rules having the force of law now
or therefore in force, or hereafter to be in force. ...'
(Counsel) ... has argued, however, that declaration by the Governor of the Colony
made in pursuance of section 14 of the Sugar Ordinance is neither an Ordinance nor a
rule or regulation.
this submission cannot succeed because of the definition of
Òrdinance' in section 2 of the Interpetation and General Clauses Ordinance (Cap. 1,

Kenya Laws, 1948). By that definition the term Ordinance is made to include àny
order, proclamation, rule, regulation, or by-law made under the authority of an
Ordinance: and in force'. It is impossible to argue that a notice published in the
Gazette which declares certain districts in the Colony to be prohibited areas for the
purposes of the Sugar Ordinance is not an Order issued by the Governor in pursuance
of the authority bestowed on him by section 14."
Note: this problem is alleviated by the words of s.60(1)(a) - "all written laws, and all laws,
rules and principles, written or unwritten, having the force of law ...". The Interpretation and
General Provisions Act (Cap. 2) no longer contains a definition or "Ordinance".
Also on judicial notice of a Government Notice see Thurman Singh v. R.,
(1951), 1
T.L.R.(R) 345. As to whether a court may take judicial notice of customary laws, see Chapter
of Determination of Customary Law, infra.
Saleh Mohamed's case on "geographical divisions":"Under section 57(a) a Court shall take judicial notice of the `geographical divisions of
the world' bt there is nothing else in that section which supports the Learned Judge's
proposition (that a Magistrate was entitled to take judicial notice of the location of all
towns and villages in Kenya.) We think, therefore, that it would have been better had
the prosecution produced evidence as to the whereabouts of the place ... because it was
ofthe eswence of this particular charge that the sugar had been found in the appellant's
possession at a place which lay within a prohibited area."
This view was, however, questioned by the Privy Council in Kuruma s/o Kaniu v. R., (1955),
22 E.A.C.A. 364, 366:-
"A report of (Saleh Mohamed's) case was not before the Board and their Lordships
have no wish to criticize a decision that theyhave not read but with all respect to the
Court of Appeal it appears to them that this was perhaps an unduly narrow view to
take. We think it may well be that when an indictment alleges that a particular offence
was committed at a particular place and no challenge or issue is raised at the trial on
that point the cout may assume or at least take judicial notice that the place is situate
where the indictment states it is or that the maxim omnia praesumuntur rite esse acta
(that all things are presumed to have been done rightly) would apply".
On judicial notice of "notorious" trade usages see C.A. Harilal & Co. v. Standard Bank Ltd.,
[1967] E.A. 512,516 (C.A.), supra, p. 139.
Nazir Ahmed v. R., [1962] E.A. 345, 349 (C.A.)
"It is relevant thatthe part of Magadi Road in question is remote, unfrequented and at
a material distance from Nairobi, facts of which all Nairobi courtswould take judicial
notice."
Mwaitige v. R., [1961] e.A. 470 (C.A.) at pp. 474-475:"There was no evidence to show who produced the coffee, and likewise there was no
evidence to show where the coffe came from. It might, for all that is known, have come
from a district other than the Rungwe or Mbeya district. Learned Counsel has
submitted that the Magistrate was entitled to takejudicial notice of the fact that if it
hadnot come from the Mbeya district `the only place he could have got it is in the
rungwe district'. There is no evidence to this effect and we do not agree that this is a
matter of which judicial notice could be taken."
Ryde v. Bushell, [1967] E.A. 817, 821 (C,.A.0, in a case involving the requirements for a
successful plea of Act of god, absolving a party from liability for damage suffered following
performance of part of an obligation:"The judge merely described the coffee as being washed away by `heavy rains'. He
made no finding as to its extraordinary nature, ... The defendant asks this court,
which is a court of an agricultural country, to take judicial notice of the norma
intensity of rainfa and of the eresive effect of heavy rain. I am prepared totake judicial
notice in a broad way of both these facts; but I cannot do so to the extent of coming to
a conclusion, unaided by any evidence, thatthe rainfall in question was of so
extraordinary a naturethat it could not reasonably have been foreseen and that no
precuations which the defendant could reasonably have taken would have prevented
or reduced the effect ofthe rain."
1. Appropriate books and documents of reference.
In addition to those instances involving books and documents which contain
statements made under special circumstances (see discussion of ss. 37 - 41 and the Chapter on
Documentary Evidence, infra), s.60(2), authorising the court to resort to appropriate books
and documents of reference and the proviso to s.63(2) are relevant.
63.(1) Oral evidence must in all cases bedirect evidence.
(2) ...
Provided that the opinion of an expert expressed in any treatise commonly offered for
sale, and the grounds on which such opinion is held, may be proved by the production of such
treatise if the author is dead or cannot be found, or has become incapable of giving evidence,
or cannot be called as a witness without an amount of delay or expense which the court
regards as unreasonable.
........
A distinction must be made between situations where the court resorts to appropriate
books or documents of reference which, under s.60(3) it may refuse to do unless and until the
person calling upon the court to take judicial notice of a fact produces such book or document
as it considers necessary to enable it to do so - and the use of treatises as expert evidence.
The leading East African case on the subject is Sharmpal Singh v. R., [1960] E.A. 762
(C.A.). The Court, in determining the use to which medical treatises could be used under s.57
E.E.A.(s.60 K.e.A.) discussed the matter on p.770 as follows:"Under English practice and law of evidencethere is no doubt that medical textbooks
are not evidence per se, though if passages from them are put to a medical expert he
may refresh his memory from them or describe them as representing his own views.
(citing authority)...
Counsel for the appellant submitted thatunder the Indian Evidence Act ... greater
latitude is permitted. Section 57 and s.60 of the Act were referred to. Section 57 enumerates a
number of facts of which courts must take judicial notice and continues:
(quoting subs. (2) of the present s.60)
We do not think that this seciton, taken alone, would assist the appellant's argument.
As is stated in the commentary upon it in SARKAR ON EVIDENCE (9th Edn.), p.
492:
`But obviously, itcannot be meant that the court is to take judicial notice of all facts
mentioned in all books of public history, literature, etc. Only books of accepted or
recognized authority may be resorted to and for obtaining information regarding ohly
undisputed and notorious facts.'
On page 499 it is said:
`S.57 however does not intend to make books or documents of reference themselves
evidence. What is obviously meant isthat the court may use the books of reference in
appraising the evidence given and coming to a right understanding the conclusion
upon it. It has been held that the court can dispense with evidence only of what may
be regarded as notorious facts of public history.'
The section is not intended, in our opinion, to enable or require a court, to solve for itselfby
rference to textbooks, difficult and perhaps controversial questions in medical or other
science." (emphasis added).
The Court went on to discuss the use of treatises under s.60, noting that I.e.A. had changed
the applicable English law:- (pp.770 "Section 60 of the Act however goes further and thereisunanimity among legal
textbook writers on the subject that it effects a change from the English law. It should be read
with s.45 which is as follows:(quoted)
Section 60 so far asit is relevant reads:
(quoted)
The proviso last quoted has effected a change from the principles followed under
English law. In WOODROFFE'S LAW OF EVIDENCE (9th Edn.), p. 516, is the following
passage:
`... The treatise in order to be admissible must be one commonly offered for sale, and
the author of it must notbe producible within the meaning of the section. Strictly the
burden of proving these facts will be upon the person who desires to give such treatise
in evidence.
Section 45, ante, (s. 48 K.E.a.) refers to the evidence of living
witnessesgiven in court. this section makes scientific treatises and the like, commonly
offered for sale, evidence, if the author be dead, or under any of the circumstances
specified in s.32 (s.33 K.E.A.), which render his poduction impossible or

impracticable.'"
The dangers of the over-free use of textbooks and treatises and their proper function was
stressed in the following passage from Grande Venkata Ratnam v. Corporation of Calcutta,
(1919), A.i.R. Cal. 822, 864, quoted by Court in Sharmpal singh's case on p. 772:"this section does not justify the court in treating the opinions or deductions of the
authors of such books as evidence in the case whether to supplement or rebut that
already given.
Section 60 however allows the opinion of experts expressed in any treatise commonly
offered for sale and the grounds on which such opinions are held, to be proved by the
production of such treatises in circumstances which no doubt apply in the present case.
The conclusion seems to be that books of reference may be used by the court on
matters (inter alia) of science to aid it in coming to a right understanding of and
conclusion upon the evidence given, while treatises may be referred to in order to
ascertain the opinions of experts expressed in any treatise commonly offered for sale
and the grounds on which such opinions are held, to be proved by the production such
treatise s in circumstances which no doubt apply in the present case. The conclusion
seems to be that books of reference may be used by the court on matters (inter alia) of
science to aid it in coming to a right understanding of and conclusion upon the
evidence given while treatises may be referred to in order to ascertain the opinions of
experts who cannot be called, and the grounds on which such opinions are held. In
these cases the direct evidence on the record, relating to the quality of the ghee in
question consists of the sworn testimony of the analyst, which stands alone and
uncontradicted. I think that we should be very careful to avoid introducing into the
case extraneous facts culled from textbooks, and also to refrain from basing a decision
on opinion, the precise applicability of which to the ghee in question is impossible to
gauge. this is an error which was strongly condemned by the Judicial committee of the
privy council in the case of Sajid Ali v. Ibad Ali. We may however usefully refer to
these booksin order to comprehend and appraise correctly the evidence of the expert,
who has actually analyzed the ghee in question and gives on oath his opinion as to the
result of such analysis. It would, I think, be dangerous to bas thedecision of the court
solely on the evidence ofbooks whether for a conviction or an acquittal."
As to the definition of "treatise", the Court at p. 773 refered to the SHORTER EXFORD
ENGLISH DICTIONARY which defines the word as follows:"A book or writing which treats some particular subject; now always, one containing a
methodical discussion or exposition of the principles of the subject; ..."
and noted that the meaning was wide enough to include a book on a particular subject.
All passages relied upon by the defence in a treatise should be put to the expert witness
for the prosecution for his opinion; Singh's case, p. 773, noting the opinon of WOODROFFE,
J,. in Ratnam's case, supra.
Summary:
1. A treatise may be produced in court and passages there from will be admissible in
evidence, provided that they are relevant, if:
a. it is commonly offered for sale;
b. the author is dead, or not producible owing to the amount of delay or
expense which in the circumstances of the case the court considers
unreasonable.
The burden of proving these facts shall be on the person who desires the introduction of the
evidence.
2. The function of treatises is to enable the court to understand and evaluate the
evidence in the case.
3. If an expert witness for one party refers to as treatise to support his own conclusions,
the treatise should be put to any expert witness for the other party to obtain his opinion of the
opinions contained in the treatise.
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 hirepurchase 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!

1
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.
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
1
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

1
Estoppel by Record
Estoppel by Deed
Estoppel by Agreement
Estoppel by Conduct.
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.
1
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
1
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.
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.
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:
1
It only applies between parties of privies to the deed and only in proceedings on the
deed.
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: 1
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.
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 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
1.
Representation must be made with the intention that it be acted upon, it must be a
wilful intention.
2.
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 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
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
(a)
There must be a clear and unequivocal representation.
(b)
There should also be an intention that it is acted on.
(c)
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.
ESTOPPEL
(Note: This Chapter does not cover estoppel by record (res judicates), dealt with under the
discussion of judgments, infra.)
Estoppel is a rule whereby a party is precluded by some
previous act to which he was party or privy from asserting or
denying a fact. It is rule of exclusion, making evidence of a
relevant fact inadmissible. PHIPSON, p.83
This general definition of estoppel, and the circumstances under which a
party may be estopped, are set forth in s.120 K.E.A.
The equivalent
sections in the other enactments are s.115 I.E.A. and Z.E.D.

120.When one person has, by his declaration, act or omission
intentionally caused or permitted another person to believe a
thing to be true and to act upon such belief, neither he nor his
representative shall be allowed, in any suit or proceeding
between himself and such person or his representative, to deny
the truth of that thing.
There are four general classifications of estoppel:
Estoppel by record (see not above)
Estoppel by deed
Estoppel by agreement (see ss.121 123, infra)
Estoppel by conduct, also called common law estoppel.
In addition, there has developed in recent years a doctrine of promissory estoppel,the

exact limits of which have not yet been defined, which is discussed under the section
dealing with estoppel by conduct.
One of the difficulties encountered in considering estoppel in East Africa is the
tendency of Courts to deal with the doctrine without specific reference to the applicable
sections of the various Evidence Acts, but to rely instead upon reported English decisions
even though the doctrine as enacted originally in s.115 I.E.A. was drawn from Pickard v.
Sears , (1837), 6 A. & E. 469. For example, in Abdulali Jiwaji v. Pandya, [1958] E.A. 523.
523 (U), the Court, after referring to English decisions, said:In my opinion, although the definition of estoppel in our
ordinance differs slightly from the meaning expressed in the
judgments referred to in the above quoted case I think we
should be guided thereon by the English decisions. (Here the
Court had made reference to s.113 U.E.O.).
If this is a course adopted purely for guidance, viewing the English decisions
as persuasive, but not binding, it is undoubtedly justified, but if the terms of
the Acts are at variance with the English decisions, the Acts must prevail.
Another example, illustrative of the difficulties of research on the subject, is
Mulji Jetha Ltd. V. I.T. Comr., [1967] E.A. 50, 59(K). Here the Court said:.. no material distinction is to be drawn between the principle
as illustrated by the English decisions to which I have had
occasion to refer and the principle as applicable in Kenya.
Without ever making reference to s.120 into which the principle (here, equitable estoppel)
had been incorporated by Nurdin Bandalis case, see below. At best, this procedure hinders
research, and it is well to keep in mind in preparing judgments where estoppel, or any
other evidence question is involved, that :
the Evidence Act is designed to cover the whole field of the

law relating to evidence
as was stated by NEWBOLD, J. However since the rules governing estoppel
in England and East Africa are substantially identical, the law as set forth
herein can all be incorporated within he meaning of the applicable K.E.A.
sections.
The distinction between estoppel and waiver
NEWBOlD, J. in Nurdin Bandali v. Lembank Tanganyika Ltd ., [19.. 304 (C.A) at p.314 set
forth the difference between estoppel, which is a rule of evidence, and waiver, which is based
on contract:-
the distinction between waiver and estoppel should be clearly appreciated.

Waiver is based on a contract, express or implied, between the parties. Thus it arises
from a term, express or implied, of a contract, and before any such term can exist a
valid contract must be established. If it is found that a contract is established and it
contains such a term, then that term, like any other term in a contract, may found a
cause of action. Estoppel, on the other hand, is primarily a rule of evidence whereby a
party to litigation is, in certified circumstances, prevented from denying something
which he had previously asserted to be true. Estoppel, whether at common law or
equity, can never found a cause of action, though it may enable a cause of action,
which would otherwise fail, to succeed. The difference between waiver and estoppel is
set out in the judgment of the Privy Council in Dawson Bank Ltd. V. Japan Cotton
Trading Co. Ltd . [(1935) A.L.R.. P.C. 79, 82] as follows:
Estoppel is not cause of action. It may (if established) assist a plaintiff in enforcing a
cause of action by preventing a defendant from denying the existence of some
fact essential to establish the cause of action, or (to put it another way) by
preventing a defendant from asserting the existence of some fact the existence
of which would destroy the cause of action. It is a rule of evidence which comes
into operation if (a) a statement of the existence of a fact has been made by the
defendant or an authorised agent of his to the plaintiff or someone on his
behalf, (b) with the intention that the plaintiff should act upon the faith of the
statement, and (c) the plaintiff does act upon the faith of the statement. On the
other hand, waiver is contractual, and may constitute a cause of action: it is an
agreement to release, or not to assort a right. If an agent, with authority to
make such an agreement on behalf of his principal, agrees to waive his
principals rights, then (subject to any other question such as consideration)
the principal will be bound, but he will be bound by contract, not estoppel.
There is no such thing as estoppel by waiver.
The distinction between common law estoppel and equitable estoppel.
The Indian Evidence Act did not incorporate the doctrine of equitable, or
promisssory estoppel, also called estoppel in pais, and a case within s.115 I.E.A., i.e.
the elements of a common law estoppel, were set forth in Jotha Ismail Ltd. V.s
Somani Brothers, [1969] E.A. 26 (C.A) at pp.29 30, quoting from SARKAR (9 th
Edn., p.913, now found in the 11th Edn. At p.1025):(1)There must be a representation by a person or his authorised agent to another in
any form - declaration, act or omission.
(2) The representation must have been of the existence of a fact and not of promises de
futuro or intention which might or might not be enforceable in contract.
The doctrine of equitable estoppel clearly applies in Kenya.
In
Century
Automobiles v. Hutching Biemer Ltd., [1965] E.A. 304, 320 (C.A.), the Court said:-
There can be no doubt that the doctrine of equitable estoppel applies in

Kenya. There is the clearest authority on Nurdins case. It is true that the judgment
in that case dealt with the law of Tanganyika but the reasoning applies with equal
force in Kenya.
Along a similar line, HARRIS, J. in Mulji Jetha Ltd., supra, at p.59 of the decision
noted that the doctrine of equitable estoppel as innunciated in 1877 in Hughes v.
Metropolitan Railway Co., (1877) 2 App. Cas. 439, is numbered among the doctrines
of equity imported into Kenya by the East Africa Order in Council, 1911, but the
doctrine has now clearly been brought within the ambit of s.120 K.E.A. by virtue of
the above authority. Note, however, as was said in Nurdins case at p.319:In the case of an equitable estoppel, however, the right has never been removed from
the contract, but the owner of the right is prevented on equitable grounds from
exercising it.
Defence of estoppel must be pleaded.
In Balwant Singh v. Kipkoech arap Serem [1963] E.A. 651 (C.A.)the court
said: the facts giving rise to these pleas [either waiver or estoppel] are material facts
and should be pleaded (see Order VI, rules 1 and 5).
There is however, this
difference between the two pleas: Wavier gives rise to a cause of action and if
the claim is based on waiver the facts should be pleaded in the plaint; but
estoppel merely enables an independent cause of action to succeed by
preventing a sentence from being raised and thus the facts relating to estoppel
would normally be pleaded in the reply and not in the plaint.
See also comment referring to the above case in Jinabhai and Co. v. Eustace Sisal
Estates [1967] E.A. 153, 136 (C.A.).
On occasion, defects in the pleadings have been noted, but a decision still
reached that the pleadings were sufficient to raise estoppel, e.g. Dukhiya v. Standard
Bank of S.A.,[1959] E.A. 958 (C.A) at pp.969 970:The only fact necessary to estoppel which was not pleaded is that the appellant relied
upon an assurance from the respondent that the credits had been effected.
When the issues were framed by consent, Issue No.6 was put in terms
sufficiently wide to embrace almost any defence but it must of course be read in
the light of the pleadings.
To my mind the defect of pleading is not a
substantial one and only if the pleading of the missing allegation of fact would
have altered in some way the presentation of the respondents case or its
counsels approach to the evidence..
do I think the appellant should be
debarred from relying on the defence .

See also Balwant Singhs case, supra where there was a defect, but the case was
conducted as if the plea existed, and the court did not think that the appellant was
prejudiced in any way. (p.654 of the decision.)
If the situation does not involve estoppel, even thought the situation is similar
in nature, confusion on the issue of pleading should be avoided. In Vaburgam Soni v.
Dasturi Ram, for example (1938), 19 K.L.R(1) 21, there was a dispute on a settlement
of account, and the respondent, after the disagreement, sent a cheque for 1100/ to the
appellant, with a letter stating it was in full and final settlement of the transaction.
The cheque was presented for payment and paid without communication from the
Appellant, who later filed a civil suit for the full amount less the amount paid. The
Court held that the magistrate was entitled to hold as a fact that the appellant had, by
his conduct, accepted the cheque in full and final settlement, but that it was not
necessary for the respondent to have pleaded estoppel because he was relying on an
agreement to accept the cheque and not on any estoppel, as he has not changed his
own previous position or been prejudiced by anything the appellant had done.
No estoppel on a point of law.

Although admissions generally may act as estoppels, see s.24 K.E.A., an estoppel
cannot be founded on an admission of a point of law; see Nayar v. Sterling
Insurance Co., [1966] E.A. 144, 153 (K); Jetha Ismail Ltd. V. Somani Bros., [1960]
E.A. 26 (C.A.) at p.30.
No estoppel against statute or exercise of statutory discretion.
The Court in Mchanlal Thakrar v. Pinbhai Lalji,[1963] E.A. 497 (u) at p.502
quoted the commentary from WOODOFFE AND AMEER ALI ON THE LAW OF
EVIDENCE APPLICABLE TO BRITISH INDIA (9th Edn.), p.831:It is an absolutely fundamental limitation on the application of the doctrine of
estoppel that it cannot be applied with the object or result of altering the law of
the land. The Law, for instance, imposes fetters upon the capacity of certain
persons to incur legal obligations and particularly upon their contractual
capacity. It invalidates and renders null and void certain transactions on the
ground that they are illegal. It attaches certain incidents to property as, for
instance, by prescribing the mode in which it shall be transferred. This general
law is in no way altered by the doctrine of estoppel. It is not allowed to enlarge
the status or capacity of parties, nor to be a clock for illegality; nor to alter the
incidents of property. The admission exacted must always be of something
which can legally be done by the party from whom it is exacted.
Here the plaintiff/tenant sued for the return of an illegal payment on the grounds that
he was not in pari delicto with the defendant, and it was submitted that he was
estopped from raising the question of illegality. The submission was, however, denied
on the basis of the above authority on the grounds that the payment was illegal, and,
impliedly, that to apply the doctrine would alter the law.
The rule that there is no estoppel against the exercise of a statutory discretion
has been applied in two recent cases. In Income Tax Comr. V. A.K., [1967] E.A. 648
(K) an income tax assessor agreed to accept late notice of objection to reduce the
income assessed to an agreed sum and to issue amended notices of assessment. The
Commissioner, however, repudiated the agreement and filed an .. for recovery
of unpaid income tax, additional tax and penalties based on the original assessments.
Among the defences was the submission that the Commissioner was estopped from
relying on the original assessments. In denying the submission that Court said at
pp.652-653:
I understand the law to be that no estoppel, whatever its nature, can operate to
annual statutory provisions and a statutory person cannot be estopped from
performing his statutory duty or from denying that he entered into an
agreement which it was ultra vires for him to make. A statutory person can
only perform acts which he is empowered to perform.
Estoppel cannot
negative the operation of a statute and it is a public duty to obey the law. It is
therefore not necessary to consider in detail the various authorities to which
counsel for the plaintiff has referred legally illuminating though they are except
to say that generally speaking they decide whether the act complained of which
was performed or refused to be performed was within the scope of statutory
powers (I think the question on which the court must consider is whether
estoppel which is claimed in this case will do violence to statutory provisions.
Under the facts of the particular case, the Court held that the Commissioner was
estopped in that he was not being asked to do anything which was in violence of his
statutory powers; see pp.653 654.
In Tarmal Industries v. Customs and Excise Comr., [1968] E.A. 471 (T),
(decision of the Court of Appeal reported commencing p.484), the company, to
overcome problem of deterioration of componants imported for the manufacture of
soap, imported a substitute. A sample was sent to the Commissioner for examination
for a ruling whether it could be imported duty free. Apparently without making any
analysis the Commissioner ruled by letter that it was duty free, and later confirmed
the ruling by a separate letter. Subsequently a sample was analyzed and a ruling was
made that it was, in fact, subject to customs duty. The Company refused to pay the
customs claimed in the proceeding. On of the issues was whether the Commissioner
was estopped by his initial decision that the substance was not dutiable, or whether he
was bound to correct the matter and levy duty on the basis that the subtance had
always been dutiable. [The appeal was unconnected with estoppel, but L.W, J.A. said
at p.495 that although estoppel had been a ground of appeal it was not pressed by
counsel, whom the Court understood to concede that the decision of the High Court on
the issue was correct].
In defining the fast situation to which the estoppel argument in the High Court
was applied, the Chief Justice clearly stated that the issue was limited to the
application of the doctrine to statutory enactments by saying (p.480):I am satisfied that the Commissioner made the refpresentation. I am satisfied
that the defendant company acted on that representation and that the
Commissioner knew that they would have so acted. I am also satisfied that as a
result of so acting they would suffer loss if called upon now to pay the duty
claimed by the Commissioner. In other words, I am satisfied that this is a case
under which in normal circumstances the doctrine of estoppel would apply.
After quoting extensively from the leading English case of Martime Electric Co. Ltd v.
General Dairies Ltd.,[1937] 1 ALL E.R. 748 and Southend on-Sea Corporation v.
Hodgson (Wickford)Ltd., [1961] 2 ALL to the facts of this case as follows:
In this case there is a statutory duty imposed on the Commissioner of
Customs and Excise by s.105 of the East African Customs Management Act
1952. It is the duty, where the goods can be reasonably classifiable under two
or more names, classes or descriptions, to classify them under the name, class
or description which results in such goods being liable to duty or being liable to
the higher or highest rate of duty, as the case may be . The fact that he
failed to do so, on the authorities above cited, cannot stop him from carrying
out his duty when he discovers the original error.
Indeed, his earlier
classification was in breach of s.105 It was a breach of a statutory duty,

and in that sense it was not lawful and estoppel cannot be raised against him to
prevent him from correcting that act. Naturally one reaches such a conclusion
with a certain measure of reluctance, as it is undoubtedly hard on the
defendant company to be called upon so long after the event to find such a
substantial sum, which would not have been payable but for the plaintiffs
negligence in the first instance in not having the pellets which were sent to him
for examination properly tested. One can well understand, however, that on
the balance, it is preferable that the law should be as it is. It is not in the
interests of consistent application of the law that errors should be sanctified as
principle.
In any event, it should be noted that the final arbitrator of
classification of any substance under the Act is the Court and not the
Commissioner, and to hold that the Commissioner is so estopped from claim
duty because of an erroneous classification and not the court as is clearly
contemplated under the scheme of the Ordinance.
A case in which the doctrine was not specifically ennunciated, but to which it could
easily be applied as showing the rationale behind the decision is Korarji Tricumdass v.
The Official Assignee and Another, (1934), 1 E.A.C.A. 175, which involved a mortgage
given by an insolvent to a moneylender. There was a written admission in the High
Court by the insolvent that he had received money from the appellant. The contention
was that this should have estopped the Official Assignee from called in aid the
Moneylenders Decree in connection with the requirement of a written memorandum.
The Court (pp. 178 179) quoted from In re Van Laun, (1907), 1 K.B. 155, 162:The trustees right and duty when examining a proof for the purpose of admitting or
rejecting it is to require some satisfactory evidence that the debt on which the
proof is founded is a real debt.
No judgment recovered against the bankrupt,
no covenant given by or account stated with him can deprive the trustee of this
right. He is entitled to go behind such forms to get at the truth, and the
estoppel to which the bankrupt may have subjected himself will not prevail
against him.
See also Chatrath v. Shah, [1967] E.A. 93 (C.A) at pp. 96 97, where the Court at p.97
said:The doctrine that there can be no estoppel against a statute simply means that
an estoppel cannot render valid something that the law makes invalid; so that if
a statute declares a transaction to be invalid or expressly declares a transaction
to be invalid or expressly declares that something should not be done then the
doctrine of estoppel cannot be used to override the specific directions of the
law.
Estoppel by conduct.
Although, as seen in (b) above, s.120 embodies both the Pickard v. Sears doctrine
and equitable estoppel, both of which are classified by, for example MORRIS, under
the heading estoppel by conduct (see pp.160 et seq.), we will here cover the two
separately.
For the Pickard v. Sears estoppel by conduct to become operative, it is required
that the conduct should have been 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 his belief, either by
doing something or forbearing to do something, thereby altering his position to his
detriment.
In these circumstances, neither the person whose conduct has resulted in the
change of position, nor his representative in interest, is allowed in any suit or
proceeding between himself and such person (or his representative in interest) to deny
the truth of the thing. (See section (b), p.278 and elements listed in SARKAR, keeping
in mind that the section is limited to the rule in East Africa that equitable estoppel also
falls under s.120, although there is a distinction in application of the two types of
estoppel.)
The doctrine of estoppel by conduct is best illustrated by examination of the
various cases in East Africa in which it has been applied.
In Suyedu Binti Abdulla bin Mohamed El-Javi v. The Waki Commissioners,
Zanzibar, ( 1949), 6 Z.L.R. 227, a Mohammedan created by deed a wakf of a shamba
in which he reserved for himself a life interest which was, in fact, invalid under the
applicable law. His daughter, the Plaintiff, was a beneficiary and eventually, after his
death, became the sole beneficiary, and for a time was the trustee of the wakf in
pursuance of a family agreement to treat the wakf as valid.
This arrangement
appeared at the time to benefit her, since her interest under the wakf was greater than
here interest in her fathers inheritance. Subsequently she challenged the wakfs
validity, and the Court held that though the wakf was at the time of its declaration
invalid under Shafei Law by reason of the reservation of a life interest by the
dedicator, the plaintiff by her conduct and by s.115 Z.E.D. was estopped from alleging
its invalidity.
A similar case is Fatuma binti Abdulrehman bin Mohamed El Ruwohia v.
Abdulla bin Mohammed bins Salim El-Ruweni, (1949), 8 Z.L.R. 244, wherein X and
another jointly made wakfs of their half-shares in a shamba by deed. Later X entered
into a written agreement regarding the wakfs with the plaintiffs, who were
beneficiaries, whereunder he undertook to manage the wakfs and to pay them their
shares. When the plaintiffs later sued him to render accounts and pay them their
sahres, X pleaded that this agreement had been entered into by him without
consideration and under a bona fide mistake as to the interpretation of the wasf deeds,
arrived at through bad advice by the Sheikhs. The Court held that as this was a
mistake of fact it could be pleaded as a ground for avoiding the agreement;

nonetheless the agreement, amounting as it did to a family arrangement, must be
deemed to have been entered into by X for good consideration, and accordingly,
having acted upon it, he was estopped by s.115 Z.E.D. from attempting to upset it.
Note in each case how the declaration and acts of the person estopped caused
or permitted the other party to believe a thing to be true and act upon the belief to his
detriment.
Harnam Singa v. Jamal Pirbhai, (1955), 22 E.A.C.A. 1 (P.C.), involved a
situation where a contractual tenant, upon receipt of a notice to quit, sent by his
advocates a letter in which it was said:- Our client will not vacate the premises in
accordance with your notice, but will remain in occupation as a statutory tenant from
the date of the expiry of the notice (under the relevant legislation. At the trial,
however, he contended that he was a contractual tenant, and it was held that the letter
created an estoppel between the parties and the tenant was estopped from contending
that he was a contractual tenant, and must be taken to be a statutory tenant. In a
similar case, N.M. Dattani v. Ahmei[1959] E.A. 216, 220 (U) the Court, referring to
Harnam Singhs case as authority said By his conduct and by paying this rent for
four years without demur he has admitted that he was a statutory tenant and he is
estopped from so denying..
A number of cases have involved situations where the defalcations of one
person raised the question as to which of two innocent parties should suffer, and
estoppel has been applied in reaching a decision. In Dukhiya v. Standard Bank of S.A.
[1959] E.A. 958(C.A.) a bank clerk who had previously borrowed money from the
appellant offered to deposit money with the appellant Bank repayable on demand.
The clerk then fraudulently debited the ledger accounts of the Banks customers and
by forging cheques credited the appellants account.
The clerk was tried and
convicted, and the lower courts held that the bank was entitled to recover the money
from the appellant since the money had been paid into his account under mistake of
fact induced by fraud. In discussing whether the Bank was estopped through the
appellants having changed his position to his detriment before refund was demanded,
the Court said (p.966):In order to found an estoppel, in the full sense, it must also appear that the alteration
of the appellants position was induced by some representation made by the
respondent with the intention that it should be acted upon. Counsel for the
appellant has argued further that if the alteration of the appellants position to
his detriment was brought about by some breach of duty on the part of the
respondent that is a sufficient defence. For the purposes of this case I see little
difference in principle when the matter is put thus, for if the respondent was
under a duty towards the appellant and if the detrimental alteration of position
was due to the breach of that duty it seems inevitably to follow that the breach
of duty either amounted to or resulted in a representation to the appellant,
either positive or negative.
After deciding that the Bank was under a duty to inform the appellant as to the true
state of his account, and that it breached this duty, causing the detrimental change of
position by the appellant, the Court allowed the appeal on the basis of application of
estoppel applied against the respondent Bank.
Dukhiyas case was applied in Jamal Ramji & Co. v. Lint Marketing Board,
[1962] E.A. 752 (u) where, through the fraud of an accounts clerk and a third party,
cheques from the appellants were applied to the third party's bank account. After
holding that the defendants were not entitled to rely on the defence open to an agent,
the Court said at pp.775 7s56:Can estoppel defeat this claim? Before it can do so the defendants must show some
act or representation of the plaintiffs or some breach of duty on their part to
the defendants.
On the evidence the plaintiffs did nothing to induce the
defendants to believe that [the third party was] entitled to be credited with the
proceeds of the two cheques. They made no representation about [the third
party]. The defendants derived their information about that company from
Barclays Bank, who were not the plaintiffs agents. Contrast Dukhiyas case,
where it was held that the respondent owed a duty to the appellant to inform
him of the true state of his account and if the detrimental alteration of his
position was due to the breach of that duty it followed that the breach
amounted to a representation to the appellant, either positive or negative. The
Plaintiffs as purchasers owed no such duty to the defendants as sellers to
inform him that their statement of account was incorrect. They were both
principals. To hold otherwise would mean that the defendants could rely on an
error in their accounts as a defence to a claim such as this. In the absence of
any representation or duty the defence of estoppel must fail.
Where the defalcation was that of an agent (in this connection, see discussion,
Agency Law in Eat Africa by J. Daley, Legal Publications Limited (1966), the Court
held in Kapadia v. Laxmidas, [1964] E.A. 378 (C.A) that, under the facts, the
Appellant was precluded from denying the authority of his agent to deal with the
goods as he did, and was thus precluded from asserting that the respondent dealt with
the goods wrongfully or was liable to the appellant in conversion, saying at p.383:-
I consider that the true common law principle is that where the true owner of goods,
in breach of his duty to a third party, arms his agent, or knowingly permits his agent
to arm himself. With some indicia of title to the goods and allows the agent to deal
with the goods at if they were his own, then the true-owner is precluded as against this
third party who deals bona fide with the goods and without the knowledge of the
rights of the true owner from denying the authority of the agent to deal with the goods
in the manner in which they were dealt with.
Compare this situation with that in the Bank cases above where it was held that no
agency relationship existed.
A.H. Duder v. W.C.A Basilio, (1952), 25 K.L.R. 27 involved a situation where

the plaintiff sold a car on hire purchase to one L.
The plaintiff gratuitously notified
the Registrar of Motor Vehicles that he had transferred ownership although title
under the agreement did not pass until the last payment had been made. The plaintiff
also notified the Insurance Company that he was transferring the third risk to L. L
did not complete the installment payments, but sold the car to the defendant, who
bought it in good faith without knowing that it was subject to the hire purchase
agreement. The plaintiff then sued the defendant for the return of the car or for the
outstanding payments. In deciding which of the two innocent parties was to suffer, the
Court held that no estoppel arose in respect of the plaintiffs letter to the Registrar
because the defendant was not aware of it at the time he bought the car. The
defendant claimed that the plaintiff was estopped from setting up title to the car
because of his transfer of the third party risk to L. The Court, however, did not think
any presumption of change of ownership could arise from the contents of the letter,
nor did it regard the letter as amounting to the giving of notice of any change of
ownership. Consequently the doctrine of estoppel did not apply, and judgment was
given for the plaintiff.
The Court in Prajapat v. Ashok Cotton Co., [1964] E.A. 378 (C.A.) held that
the plaintiffs conduct in paying increased rent without protest and having his name
registered as the owner of the property after he had learned the correct rental of a
plot in question estopped him from later complaining about the increase.
Note that
the Court quoted from Pickard and Scars on p.317, but made no reference to s.113
U.E.A. in which the doctrine is enshrined.
In Jetha Ismail Ltd. V. Semani Bros., [1960] E.A. 26 (C.A.), the appellants had
represented to the respondents that they had remitted payment on cheques, and the
respondents acted upon that representation to their detriment. After discussing the
elements required to bring the situation within s.113 U.E.O. (see para.(b) p.278), the
Court held that the appellants were estopped by their conduct from denying that they
had, in fact, remitted payment of the cheque, and accordingly their action to force
payment could not succeed.
Matayo Museke v. Alibhai Garage Ltd., [1960] E.A. 31 (U) involved a situation
where the defendant had hired a motor car under a hire purchase agreement to one S,
and gave him possession of the car and the registration book. Having had the car
registered in his name, S defaulted in payment of installments under the hire-purchase
agreement and sold the car to the plaintiff who registered it in his own name. The
defendant later seized the car in terms of the agreement were S, and the plaintiff then
sued for the return of the car or its value. At the trial it was contended that the
defendant, having handed over the registration book to S, was estopped by its conduct
from denying Ss authority to sell the car. Although the relevant suction was not
referred to in the decision, the Court held that the defendant was not estopped by his
conduct, for a registration book is not a document of title, and the book contained a
warning to this effect in bold letters.
The appellant in Abdulali Jiwaji v. Pandya, [1958] E.A. 521 (U) was unable to
bring the respondent within the application of the doctrine. In an earlier case, the
respondent had been used by the Kampala Municipal Council, and the Court of
Appeal had held that he was a statutory tenant, as he had claimed and his advocate
had argued. The question was whether he was estopped from denying that he was a
statutory tenant in this later case. The Court here made reference to the equivalents
to ss.44 and 45 K.E.A. (judgments in rem, and other judgments of a public nature),
and held that application of the sections was fatal to the appellants submission that
the earlier case was in rem. The earlier judgment was held not to have altered the
legal character of the respondent in any of the ways mentioned in [s.44], nor was there
any evidence that the appellant had acted upon the belief that the respondent was a
statutory tenant.
In Gomes v. Singh, [1964] E.A. 756 (C.A), the appellant, being dissatisfied with
construction of her house, hired an architect to inspect the building and report to her.
It was held that she, as owner, was not estopped from later alleging defects in the
construction. The architect was held to have been merely her agent or representative,
without the special attending standing of an architect appointed as such under a
budilging contract, being hired only to report on defects and later to superview work;
she had also not hell herself out as agreeing to be bound by way certificates issued by
the architect.
g. Equitable or promissory estoppel.
The doctrine of equitable estoppel as enunciated in Hughes v. Metropolitan
Railway Co., [1877], 2 App. Cas. 439, 448, quoted in Nurdin Bandalis case at p.318
is: but it is the first principle upon which all courts of equity proceed, that if parties
who have entered into definito and distinct terms involving certain legal results
certain penalties or legal forfeiture afterwards by their own act or with
their own consent enter upon a course of negotiation which has the effect of
leading one of the parties to suppose that the strict rights arising under the
contract will not be enforced, or will be kept in suspense, or held in abeyance,
the person who otherwise might have enforced those rights will not be allowed
to enforce them where it would be inequitable having regard to the dealings
which have thus taken place between the parties.
The court in Nurdin Bandalis case applied the doctrine to a fact the hire-purchase of
a truck. Where the strict rights of the respondent to repossess were generally not
enforced when payments were late. In holding that the doctrine did not apply to the
facts of the case, the Court said at p.329 of the decision: I see nothing in the course of conduct of the respondent which induced the
appellant to act on the belief that he need not make his payments punctually and that
the respondent would not exercise his right to repossess. But even if the respondent
had, by repeatedly accepting late payments as payments duly made under the
agreement, induced the appellant to believe that the truck would not be repossessed on
failure to pay the hire rental on the due date, it would nevertheless be open to the
respondent, by giving reasonable notice to the appellant, to require payment of the
overdue hire rentals and in default of such payment to repossess the truck. It is a
basic equitable principle that he who asks for equity must do equity.
It would
certainly not be equitable for an unalterable position to be created whereby the

appellant could delay as much as he liked in his payments but the respondent had no
effective remedy. If, therefore, the position can be restored to that which existed
before the representation, it is only equitable that the terms of the agreement between
the parties should be enforced.
Thus, if the appellant had failed to pay punctually
because the conduct of the respondent had led him to believe that the respondent
would not repossess on default of punctual payment, it would nevertheless be the duty
of the appellant to pay if the respondent gave reasonable notice requiring payment, in
default of which the right to repossess would be exercised.
Nurdin Bandalis case was applied in Century Automobiles v. Hutchings
biemer Ltd. [1965] E.A 304 (C.A) where, acting upon a representation as to a future
state of affairs, the appellant expended funds on renovation of property leased. (For
full facts see p.226 in connection with s.98, proviso ix). The Court on p.310 of the
decision first quoted from Nirdins case:The precise limits of an equitable estoppel are, however, by no means clear. It
is clear, however, that before it can arise one party must have made to another
party a clear and unequivocal representation, which may relate to the
enforcement of legal rights, with the intention that it should be acted upon and
the other party, in the belief of the truth of the representation, acted upon it.
NEWBOLD, V-P, in his concurring opinion, restated (p.313) his earlier remarks in
Nurdins case, above, by saying:The three elements which must be present are first, a clear and unequivocal
representation; secondly, an intention that it should be acted upon; and thirdly,
action upon it in the belief of its truth.
The problem which faced the Court was whether the alleged assurance could be
regarded as a clear and unequivocal representation, and in this regard, SPRY, J.A.
said on p.311: using the ordinary meaning of the word, it seems impossible to describe as
clear an assurance the terms of which have given rise to such lengthy argument. On
the other hand, the application of the doctrine would be whittled down to nil if
assurances given in the course of ordinary conversations were required to have the
precision that a lawyer would desire I entertain no doubt that if the conversation
was substantially as Mr . V. V. Patel testified, the assurance was intended to be acted
upon. This does not, of course, mean that Mr. Somen necessarily intended or even
contemplated all the legal consequences that would flow from the assurance: what it
does mean is that Mr Somen knew, and must be presumed to have intended, that his
remarks would lead directly to the expenditure by the appellant company of the cost
of the proposed alterations to the suit premises. So quote again from Nurdins case :in the case of estoppel if the representations, by word of (sic) conduct, of the
respondent were such as to induce the appellant to alter his position in the
belief that the respondents rights would not be asserted, then the respondent
may be estopped from asserting those rights even though it never intended to
give them up.
An old case involving equitable estoppel, the doctrine being applied before the
issue as to whether the doctrine did, in fact, fall under s.115 (and not referred to in
Nurdins case), is Abdi Nvri v. I.E.A. Corp. and Rukiya, (1909). 3 E.A.L.R. 12, where
the Court held that where a fraudulent title has been pleaded in court to defeat a
claim, the executor or Wasi of the party who pleaded such fraudulent title is estopped
from thereafter pleading the true title as against a purchaser for value from the holder
of the fraudulent title without notice of the fraud.
Note that no type of estoppel, including equitable estoppel, and be invoked

against a statutory duty; Mulji Jetha Ltd. V. I.T. Comr., [1967] E.A. 50 (K). The
Court here (pp.58 57) in addition to noting that equitable estoppel probably does not
apply only to afford protection against the enforcement of contractual obligations
said:Equitable estoppel is not a principle to be applied by the court in an arbitrary or
mechanical way without regard to the factors which normally influence the
exercise of its inherent discretion in the granting of equitable relief .
The doctrine was recently applied in Commissioner of Lands v. Hussein, [1966]
E.A. 585 (K) where the respondents father at the verbal suggestion of army
authorities, at his own expense erected buildings for a canteen. The father accepted
the suggestion on condition that he was given a lease. He asked for 50 years, but an
army officer present suggested 30 years. Plans were prepared and approved by the
army, and a substantial amount was expended in erecting a building. The Plaintiff
Commissioner eventually brought an action for possession, and the defendant claimed,
in effect, that the plaintiff was prevented from ejecting him on the doctrine of
equitable estoppel, relying on the putting up of the building by his father at the
instigation of the army. The Court, per HARRIS, J., adopted and applied a statement
of LORD KINDSDOWN in Ramsden v. Dyson, (1866), L.R. l H.L. 129 (from P.592 of
the decision):The rule of law applicable to the case appears to me to be this: If a man,
under a verbal agreement with a landlord for a certain interest in land, or,
what amounts to the same thing, under an expectation, created or encouraged
by the landlord, that he shall have a certain interest, takes possession of such
land, with the consent of the landlord, and upon the faith of such promise or
expectation, with the knowledge of the landlord, and without objection by him,
lays out money upon the land, a Court of equity will compel the landlord to
give effect to such promise or exception.
and held that the Commissioner was estopped by acquiescence from claiming
possession of the suit premises.
In Runia Coffee v. Singh, [1966] E.A. 564 (C.A.) the plaintiff, as freehold of a
farm, sued for possession of a combined shop and house erected on it in stone 10 years
previously by and at the expense of the defendants father.
The defendant, in
possession before and after his fathers death, relied on a contractual licence to build
and remain in exclusive possession until compensation was paid according to a
formula agreed to verbally between his father and the managing director of the
plaintiffs first predecessor in title. Among other things the defendant pleaded that
the plaintiff was equitably estopped from terminating the licence without
compensation founded upon his fathers incurring expense in the expectation of being
allowed to stay. In the course of holding that, as a matter of fact, the license was
personel to the father and any equitable estoppel could arise only in favour of the
father and not the respondent, plaintiff, the Court said on pp.568 569:An estoppel is a rule of evidence which may enable a cause of action to succeed but
which can never of itself found a cause of action. (Citing Nurdins case ). The
right to plead an estoppel does not give any title to the thing which is the
subject
matter of the estoppel (See Balwant v. Kipkoech([1963] E.A. 651
(C.A.). Before an equitable estoppel, which may consist of the representation

of a legal relationship, can arise there muwt be a clear and unequivocal
representation (citing Century Auto). Inwards v. Baker ([1965]) 1 ALL E.R.
446) is perhaps the clearest example of a case where the expenditure of money
by a person on anothers land in expectation, by reason of a representation
made by the owner of the land, of being allowed to occupy that land, given rise
to an estoppel precluding the owner from giving any evidence of an act which
would terminate that occupation except in accordance with the representation.
The right to continue in occupation, however, creates no title in the land and
the right is co-extensive with, the dependent upon, a clear and unequivocal
representation. Under s.120 of the Evidence Act, 1963, an estoppel based on

representation operates not only between the parties to the representation but
also, in proper cases, between their representatives.
The Court then discussed the facts of the particular case and, owing to the personal
nature of the license given to the father to remain on the land and the lack of a clear
and unequivocal representation to the son, concluded that the plaintiff was not able to
plead estoppel.
Estoppel by deed
As MORRIS has noted (p.159), the doctrine of estoppel by deed has, in recent
times in England, been much restricted, and if the statement in the deed is acted
upon by the other party, the case can usually be brought within the doctrine of
estoppel by conduct: hence there appears to be little point in preserving the
doctrine as a separate entity or category of estoppel. Nevertheless it has been
recognized in East Africa. In Jenasai Sachoo v. Shamsa, [1957] E.A. 227 (Z), the
deed in question contained in the preamble:And whereas the mortgages has at the request of the mortgager and the surety
agreed to lend to her the mortgagor the sum of Shs.16,000/=
The plaintiffs claim against the second defendant was based on the allegation that he
had been guilty of a breach of warranty as to the identity of the mortgagor, the loan to
her having made at his request, and the deceased having relied on the warranty. The
Court held that the second defendants defence that he did not request the loan to be
made could not avail him because of the recited in the deed, quoted above. The Court
said at p.232:To quote from HALSBURY (3 rd Edn.), Vol. 15 at p.215, a person is bound by the
recitals in a deed to which he is a party whenever they refer to specific facts and are
certain, precise and unambiguous. F.K. Velji set his hand and seal to this deed, and
he is not permitted to deny any matter which he has specifically asserted therein. He
is estopped by deed from so doing, and the fact of his having made the request
referred to in the preamble cannot be denied by him.
However the mere recital of consideration in a deed does not operate as an estoppel;
E.A. Power Co. v. Dandora Quarries, Co., [1964] E.A. 309, 316 (U) referring to Greer
v. Kettle, Re Patent Trust Finance Co. Ltd., [1937] 4 ALL E.R. 396 (H.L.).
Similarly, a date not being a term of a contract, does not result in estoppel; see
Folkes & Co. v. Thakrar, [1959] E.A. 36, 42 (C.A) where it was held that estoppel had
no bearing. Assuming that the contract in question had been signed before it was
dated, the signatories were fully aware of the date on which they had signed, and the
date on the contract was filled in their presence, so there was no possibility of their
being misled as to the true state of signature; in any event estoppel had not been
pleaded although it was argued.
Estoppel of tenant or licensee.
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 such person had a
right to such possession at the time when the licence was given.
The section has been applied in Chatrath v. Shah [1967] E.A. 93 (C.A.) in
determining whether, as an issue in the case, the relationship of landlord and tenant
applied; the Court, after discussing the facts said (pp.97 98):-
I am therefore of the view that the tenancy agreement was a

legal and binding agreement and that whether or not the respondents
are by virtue of the provisions of s.121 of the Evidence Act now estopped
from denying the title of their landlord they are clearly estopped from
denying the tenancy by reason of s.120 of that Act. I am therefore
satisfied on the evidence and pleadings that, at the time of the distress
for rent, the relationship of landlord and tenant did exist between the
respondents and the first appellant.
See also Redseth v. Shaw, [1967] E.A. 833, 835 (K) where counsel failed to take the
section into proper account:I had always regarded it as elementary law that a tenant cannot be
permitted to impugn his landlords title. There may be exceptions and
qualifications to the generality of the rule, but the rule itself is clearly
set out in s.121 of the Evidence Act, which so far as material reads as
follows:
(quoted)
Counsel for the defendant nevertheless argues that at the time
when the plaintiff gave the defendant notice to quit she had no title to
the property. He concedes that nothing had happened to detract from
her title between the commencement of the tenancy and the date of the
notice, and he relies on something which he alleges to have happened
some 10 years before the commencement of the tenancy.
It would be
difficult to imagine a more flagrant disregard of the principle embedied

in the section and I propose to say nothing further about it.
A discussion of the general English law on the subject is to be found in Ravi Bint
Mohamed v. Abdce S. Ahmed, [1957] E.A. 782, 784 (A), although no specific reference
is made to the equivalent section of the Adon Evidence Ordinance.
Other specific statutory estoppels

The Act contains two other specific estoppels, that of an acceptor of a bill of exchange,
and of a .., license or agent. There appear to be no reported East African
decisions under the sections, and they are therefore set forth below without a
comment.
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.
No bailee, agent or licensee shall be permitted to deny that the bailor, principal or
licensor, by whom any goods were entrusted to any of them respectively, was
entitled to those goods at the time when they were so entrusted.
Provided that any such bailee, agent or licence may show that he was compelled to
deliver up any such goods to some person who had a right to them as against his
bailor, principal or licensor, or that his bailor, principal or licensor, wrongfully and
without notice to the bailee, agent or licensee, obtained the goods from a third person
who has claimed them from such bailee agent or licensee.
COMPETENCE & COMPELLABILITY

Competence and compellability is a straightforward area of law. The concern here is who may
given
Competence refers to capability to give evidence and a person is competent if he/she is
conversant with the matters under consideration and the person may legally be called upon to
give evidence of those matters.
A person is compellable on the other hand when he/she can be obliged to go to the witness box
and give evidence at the pain of penalty of imprisonment should he or she fail to give turn up.
There are instances when a competent witness is relieved of the duty to give evidence for
instance where they have a claim to privilege. In that kind of circumstance the person is
competent but law of statute has exempted them to give evidence.
A person can generally be a competent witness or they can be competent in restricted cases. They
may also be totally incompetent.
General competence is dealt with at S. 125(1) Evidence Act.
All persons are competent and it is up to the court to decide whether they have a disability that
renders them incompetent e.g. tender years, extreme old age or a disease of body or mind. The
implication is that it is for the court to decide whether a particular person is competent or not and
the guidelines are given in S. 125(1). The idea is if one is able to give rational answers to the
questions the court is putting forward, one could be 200 years old or a few months, there is no
underage or overage limited.
Under 125(2) even a mentally retarded person or a lunatic is competent witness unless it can be
shown that due to his condition at the particular time he is incapable of understanding the
questions put to him and giving rational answers to them due to his sickness of mind.
Under Section 126 even dumb witnesses are competent witnesses and can give their evidence in
any manner which makes it intelligible. For instance if they can write it down or if they can give
it through sign language. The writing and the signs have to be given in open court because they
are treated as oral evidence for purposes of Section 63.
Hamisi s/o Sallum V. R
This was a trial for murder and the only eye witness was the daughter of the deceased who was a
deaf mute. She came to court with a relative who claimed that she could received information
from the witnesses sign and noises. The Judge overruled the evidence. On Appeal, it was held
that such a person is a competent witness if he or she can be made to understand the nature of an
oath and if intelligence can be conveyed to and from him/her by means of signs. This case is an
authority for the proposition that even deaf and dumb are competent witnesses if the evidence
can be communicated to them through signs.
Apart from cases of general competence there are special cases of competence and these are
cases where competence is derived from statute.
The first instance of special case of competence is derived from the accused person. An accused
person is a competence witness for the defence at every stage of the proceedings whether he is
charged alone or jointly with others. This is provided for at Section 127 (2) the accused has
however to apply to be a witness and he has a right to keep silent. The reason is because before
the UK 1898 Criminal Evidence Act the accused person was not a competent witness at all. The
spouse of an accused person was also not a competent witnesses, atheists and convicts were not
competent witnesses. The 1898 Criminal Evidence Act made these groups of people competent
witnesses. Before that they were deemed to be unworthy of credit.
The second special case of competence is a spouse of an accused person. If a person is a lawful
husband/wife of an accused he/she is a competent witness of the defence at every stage of the
trial. This is also provided for at Section 127(2)
Section 127 (4) provides who is a husband or wife for the purposes of this section. It is to the
effect that it is a husband/wife of a marriage be it in a monogamous or polygamous marriage.
Section 127(1) Spouses are competent witnesses in civil cases and here there is no underscoring
on whose part. It could be for the defence or the other party. There is a change from common
law where spouses were not competent witnesses and now they are competent witnesses.
Section 127(3) it is provided that spouses are competent and compellable witness for the
prosecution or defence in any case where the other spouses charged with
(a)
The offence of bigamy;
(b)
An offence against morality under Chapter 15 of the Penal Code; or
(c)
Where the other spouse is charged with an offence affecting the person or property of
the wife or husband or such person or the children of either one of them and not
otherwise;
Section 127(3) closes the category under which a husband/wife is compellable and it is only in
those 3 instances that a spouse can be a competent witness to testify against the other.
These provisions of the Evidence Act buttress the accused persons against self incrimination.
ACCOMPLICES
Section 141 of E.A
Essentially accomplice evidence is admissible and an accomplice is a competent witness and the
usual practice is to finish with the accomplice case before calling on the accomplice to testify so
that the accomplice does not give evidence in the hope that the court will be lenient with him
depending on his testimony. The statute is clear that it is not necessarily the case that you will
sideline evidence because it is given by an accomplice.
OPPORTUNITY
CHILDREN OF TENDER YEARS

S. 125(1) general competence. Children are competent unless the court considers them incapable
of understanding the questions put to them. What would prevent them would be their tender age
and the Act does not give an age limit below or above which a person can testify. Kibageni V R
COMPELLABILITY
Normally a competent witness is compellable. But where a witnesss competence derives from
statute and this is in instances where a witness was not always a competent witness, then the
statute that makes him a competent witness must also deal with the issue of their compellability.
Section 127 (1) (2) (3) it underscores competence as well as compellability.
If a witness is competent and compellable they decline to give evidence or to be sworn at the
peril of imprisonment.
Section 128:
Under 128 when you go to court as a witness, you must answer the question but the section
cushions the witness because it provides that any answer that a witness gives or is compelled to
give by dint of giving evidence to court shall not subject such a witness to an arrest or
prosecution save for the offence of perjury.
Section 152 of the Criminal Procedure Act provides the procedure to be followed in the case of
stubborn witnesses. It is to the effect that whenever any person appearing in court refuses to be
sworn or (b) having been sworn refused to answer any question put to him or (c) refuses or
neglects to produce any document or thing, which he is required to produced or (d) refuses to
sign his deposition without in any such case offering any sufficient excuse for such refusal or
neglect, the court may adjourn for 8 days putting such person in custody unless he sooner
consents to do that which is required of him. Privilege may constitute a sufficient excuse.
With regard to husbands and wives spouses of accused person, they were not originally
competent, statutes made them competent for the defence at every stage and we only have 3
instances when they are compellable to give evidence
R V. Lapworth
Hoskin V. Metropolitan Police Commissiosner
Hoskin V. Metropolitan
The husband here was charged with inflicting personal injury on his wife. The injury was
inflicted while the woman was cohabiting with the defendant. The woman was reluctant to
testify and the question was whether she was compellable. The court held that s the common law
wife was incompetent to testify against her husband, she cannot be compelled to testify unless a
statute makes a special provision for compulsion. (S. 127(3)) inflicting personal injury.
R V. Kihandika
R V. Blanchard
In the Blanchard case the accused was charged with committing buggery on his wife, the issue
arose as to whether the wife was a competent witness, the court held yes because the offence
involved injury to her person (127(3). The question has arisen as to why you exclude spouse
evidence in some and allow it in others. Some people argue that spouses are one and should not
testify against one another and its only in instances where it would be impossible to sustain a
case if their evidence was not available.
R v Pete
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 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 3 rd 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:
1.
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.
(i)
Cases involving one in the offence of bigamy;
(ii)
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.
(iii)
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 3 rd
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
1. 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
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
1. 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.
2. 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.
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
COMPETENCY, COMPELLABILITY AND PRIVILEGE

The general questions covered in this chapter concern the determination of who
may give evidence generally,
who may be compelled to give evidence, and the
circumstances under which a competent witness may be relieved form giving evidence, i.e.
privilege. These subjects form the foundation for the further specialised rules governing
special classes of witness, e.g. expert witnesses, and those instances where evidence may be
given by a witness who is not actually before the court.
a. Competency - general.
125.(1) All persons shall be competent to testify unless the court considers that they
are prevented form understanding the questions put to them, or form giving rational
answers to those questions, by tender years, extreme old age, disease whether of body or
mind) or any similar cause.
(2) A mentally disordered person or a lunatic is not incompetent to testify unless he
is prevented by his condition from understanding the questions put to him and giving
rational answers to them.
......................................
A person who is fully conversant with some relevant fact, and therefore competent
to give evidence about it form a lay-manss point of view, may nevertheless be incompetent
as a witness in law. An incompetent witness is not permitted to give evidence. A person
who is legally competent cannot always be compelled to give evidence, if he is unwilling to
do so. Competence and compulsion (or compellability are thus distinct topics. yet when a
person is not a competent witness, he is obviously not compellable. Conversely, when he is
competent he is usually computable....
There is a distinction between competence to give evident in general and competence
to give a particular type of evidence. Whether a witness is competent to give expert
evidence, for example, is a mater distinct form the general subject of competence..... the
question of the competence of experts is decided by the judge, and the same rule applies to
the question of general competence. A further distinction may be made between noncomparability and privilege against disclosure.
A witness who is competent and
compellable may nevertheless be entitled to privilege in respect of certain answers, but such
privilege does not affect his obligation to give evidence on other subjects.
Prima facie every person is a competent witness..... NOKES, AN INTRODUCTION

TO EVIDENCE, pp. 377-8
It is necessary to distinguish between the competence, compellability and
privilege of witnesses. a witness is competent to give evidence if his testimony
is admissible. He is compellable if he can be obliged to go into the witness
box, the ultimate sanction being imprisonment for contempt of court if he
refuses to do. A witness who is unwilling to give evidence is obliged to attend
court if a subpoena is served on him and hte appropriate conduct money
paid. When in the witness box, the witness is generally guilty of contempt of
court if he refuses to answer questions that are put to him but he may claim
to be privileged from answering certain questions on the grounds (of
privilege). CROSS AND WILKINS, AN OUTLINE OF THE LAW OF
EVIDENCE, pp. 52-3.
Competency being a condition precedent to the administration of an oath or
affirmation, a determination of competency must be before the oath or affirmation is
administered. Competency, however, is not connected with the administration of hte oath
in that a persons religious beliefs and his belief in the knowledge o the consequences of
falsehood have nothing to do with his competency. For example, an accused is a competent
witness, but need not take the oath (s. 237 C.P.C.). A witness is incompetent only if he is
prevented from understanding the question put to him or is prevented from giving rational
answers to those questions.
The responsibility for determining competency lies with the court, and if a
magistrate for any reason suspects that a potential witness may not be able to understand
the questions or give rational
answers, he should, in the best way possible ascertain
whether or not the witness is, in fact, competent. For example, if a witness is quite elderly,
the magistrate could ask questions to determine the extent of his intellectually capacity and
understanding, and whether he has the ability to remember and describe what he has done
on particular occasions, without, of course, asking questions concerning the testimony
which he may be called upon to give in the particular case.
The same is true in the
instance of a child of ten years, see below, or a potential witness h is suffering form a
disease of mind or body.
As set forth in subs. (2), the more fact that a person is a lunatic or suffering from a
mental disorder does not make him incompetent or preventing him from giving, while in
the witness box a rational account of what he has seen, hear or done on the occasion in
question. It is only when his condition prevent shim, as in the case of other witnesses, form
understanding the questions or giving rational answers that his mental condition results in
a determination of incompetency.
b. Competency in special cases.
1 The accused.
127.(1)...
(2) In criminal proceedings very perosn charged with an offence. .. shall be a
competent witness for hte defence at every stage of the proceedings, whether such person is
charged alone or jointly with any other person:
Provided that(I)
shall not be called as a witness except upon his
own applications;...
(ii)
failure of the person charge... to give evidence shall not be

made the subject of any comment by the prosecution.
These safeguards restate the fundamental principles of the criminal law as

enshrined in the Constitution, Section 21(7) that no person who is tried for a criminal
offence shall be compelled to give evidence at the trial (see p. (v). This section was not
contained in the Indian evidence act. Proviso (iii) prohibiting comment by the prosecution
on the failure of an accused to testify would not appear to conflict with those case here the
presumption contained in illustration (g) to s.119, that evidence which could be and is not
produced would, if produced, be unfavourable to the person who withholds it, for this is a
matter to be taken into consideration by the court based upon the evidence presented; see
discussion pp. 88 et seq.. However in those cases where a burden of proof is placed on an
accused, either by statute or under s.111, legal arguments concerning failure of an accused
to discharge the onus laid upon him when he does not testify certainly lead to the same
result, but it is submitted that these are not the type of comments which, in an
appropriate case would be held to fall within hte purview of the proviso, being instead
those comments which would attempt to equate the failure of the accused to give evidence
with guilt. An inference of guilt predicated upon failure to discharge an onus which has
either been placed upon an accused by law or has been shifted to him, again through the
operation of law in connection with a burden of proof would not, it is submitted, be held to
fall within the prohibition of the proviso.
2 Dumb witnesss.
Merely because a person is unable to speak in order to give his answers to questions
asked does not mean that he is incompetent, so long as, under s.125(1) he is not prevented
from understanding the questions put to him and so long as he can give rational answers to
these questions by some means other than speaking. Section 126 applies:126(1) A witness who is unable to speak may give his evidence in any other manner
in which he can make it intelligible, as, for example, by writing or by signs; but such
writing must be written, and the signs made, in open court.
(2) Evidence so given shall be deemed to be oral evidence.
Hamisi s/o Salum, v.R (1951), 18 E.A.C.A. 217 considered the question arising form
a witness who was both deaf and dumb, deciding that such evidence may be admitted
subject to the discretion of the court to exclude it if the normal requirements are not, in his
opinion, met here the magistrate allowed the evidence of the witness to be given through
the medium of a sworn interpreter, who was in fact her sister, and who claimed to be able
to interpret the signs and noises made by the witness. On appeal, in considering s.119 1
E.A., the equivalent section to s.126 K.E.A., said:At the trial, it emerged that the witness was not only dumb but also deaf. There
does not appear to be any provision of the Indian Evidence Act precisely covering the case
of such a witness, but we see no reason why the principle inherent in section 119 thereof
should not be applied. In England, a person who is a deaf mute is not incompetent as a
witness if he can be made to understand the nature of an oath and if intelligence can be
conveyed to and received from him by means of signs. He may be examined through the
medium of a sworn interpreter, who understands the signs. (See archbold, 32nd edition,
pages 458-9 and authorities there cited.) In hte present case, however, the learned trial
Judge, having tested the proposed method of interpretation, and found it to be of a very
crude type, made an order, as it was entirely within his discretion to do, threat the evidence
of hte girl should be excluded.
3. Accomplices.
141. an accomplice shall be a competent witness against an accused person;...
See discussion, PP. 68-74
4. husband and wife.
(A)definition.
127(4) In this section husband and wife mean respectively the husband and wife
of a marriage, whether or not monogamous, which is by law binding during the lifetime of
both parties unless dissolved according to law, and includes a marriage under native or
tribal custom.
.....................
Prior to the enactment of the K.E.A. in 1963, the dictates of HAMILTON, C.J. in the
High Court of East Africa Criminal Revision Case R.v. Amkoyo, (19170 , 7 E.A.L.R. 14,
distinguishing between marriages contracted under statutory law, which required
monogomy, and polygamous marriages under native law and custom, were controlling in
criminal case, specifically those dealing with the competency of a wife to give evidence
against her husband in criminal cases and communications during marriage. These cases
will be noted under the relevant sections, infar, PP, 105-106 infra.
It should should be noted that the Report of the Commission on the law of marriage
and Divorce has recommended that the definitions of husband and wife in s. 127(4) be
amended to accord with the proposed new law; see para. 226 and the Second Schedule to
the proposed Act. If enacted, the following definition of marriage will appear in s.3(1) of
the Interpretation and General Provisions Act (Cap.2):marriage means a marriage contracted in accordance with or recognised
as valid by he Law of matrimony Act, 196-, and husband, married woman
and wife shall be interpreted accordingly.
Part II, ss. 17-20 deals with the nature of marriage, and thus the definition now found in
s.127(4) as replaced in the propose new legislation will be just as bread as at present.
(b) competency in civil cases.
127.(1) In civil proceedings the parties t the suit, and hte husband or wife of any
party to the suit, shall be competent witnesses.
.............................
Note that subs. (1) contains no reference to the compellability of a husband or wife in a civil
suit, as is contained in s.131 T.E.A., the equivalent section. The Commission Report noted
this deficiency in para. 221 and recommended that this be clarified in hte proposed new
law. If enacted, s.127 will read:127. In civil proceedings, the parties to the suit and their spouses shall be competent
and comellable witnesses;
provided that no person shall be compelled to give evidence to prove that he or she
did or id not have marital intercourse with his or her spouse during any period of time.
(5) competency in criminal cases.
The questions as to the competency of a spouse in criminal proceedings ties in
closely with the subject of compellability of a spouse in criminal proceedings, and is
covered on p.104, infra.
4. Competency of children of tender years.
Children are competent witnesses under the provisions of s. 125(1):
.. unless the court considers that they are prevented form understanding the
questions put to them, or form giving rational answers to those questions, by
tender years...
RATANLAL summarizes as follows:With respect children, no precise age is fixed by law within which they are
absolutely excluded from giving evidence on the presumption that they have not sufficient
understanding.
Neither can any precise rule be laid down respecting the degree of
intelligence and knowledge which will render a child a competent witness. In all questions
of this kind much must depend upon the good sense and discrection of the Judge. In
practice, it is not unusual to receive the testimony of children of eight or nine years of age
when they appear to possess sufficient understanding. As a matter of prudence, Courts are
generally chary of putting absolute reliance on the evidence of a solitary child witness and
look for corroboration of the same form other circumstances in the case. (pp 274-5)
There are two sections of Acts in Kenya which have direct bearing on the evidence of
children:The Oaths and Statutory Declarations Act (Cap.15) 19. Where , in any
proceeding before any court or person having by law or consent of parties authority
to receive evidence, any child of tender years called as a witness does not, in the
opinion of the court, or such person as aforesaid, he is possessed of sufficient
intelligence to justify the reception of hte evidence; and understands the duty of
speaking the truth; and his evidence in any proceedings against any person for any
offence, though not given on oath, but otherwise taken and reduced into writing in
accordance with the provisions of s/ 233 of the Criminal Procedure Code, shall be
deemed to be a deposition within the meaning of that section.
What formerly appeared in subs.(1) to s.19 of the Act, now appears in s.124 K.E.A. :-
Notwithstanding the provisions of section 19 of the Oaths and Statutory

Declarations Act, where the evidence of a child of tender years is admitted in accordance
with that section on behalf of the prosecution in proceedings against an person for an
offence, the accused shall not be liable to be convicted on such evidence unless it is
corroborated by other material evidence in support thereof implicating him.
Note the following points contained in the sections:1 the evidence of a child may be taken even though not given on oath, although the
procedure will vary from the normal.
2 The application of s.233 C.P.A., applicable when the evidence is not on oath.
3
The requirement or corroboration of the evidence of a child.
The normal rules
concerning corroboration, discussed on pp. 75 -82 , supra apply.

The I.E.A. gave no guidance to courts as to the procedure to be followed where
testimony of a child was tendered, whereas in England where provision had been made for
reception of unsworn evidence it was always provided that the evidence should b
corroborated in some material particular implicating the accused. See quotation from
Mohamed Sugal v. R., [1946] A.C. 57, 62, an appeal from Somaliland where the I.E.A. was
in force, in Mohamed Saeed Akrabi v. R. [1956, 23 E.A.C.A. 512, 514, which noted that
under the I.E.A. corroboration, not being required by statute, went to weight and value of
the evidence only, and that while it was a sound rule of practice not to act on
uncorroborated evidence of a child, sworn or unsworn, this was a rule of practice and not
of law. (Quoted also in Maganga Msigara v. R., {1965] E.A. 471 474 (C.A.)
In Kenya, the provisions of the Oaths and Statutory Declarations act, s.19, apply to
all proceedings,
whereas in Tanganyika and Uganda the provisions of the respective
C.P.C.s (Uganda, s.149(3)l Tanganyika, s.152(3) and the present section in the T.E.A. (s.
12792) are restricted to criminal proceedings.
Although there is some uncertainty in Uganda as to the present state of the law
owing to the enactment of the Oaths act, 1963 (Cap.52, s.11), the requirements in
application of the section in Kenya are clean, and reference will be made here to decisions
from other jurisdictions only where the language of the provisions in force at the time of
decisions are identical to or closely parallel the language in s. 19 O.S.D. Act and s. 124
(formerly subs.(1) to s.19).
(a) Who is a child of tender years?
In Kibangeny v. R., [1959] E.A. 92, 94 (C.A.), the leading case on the evidence
of children, the Court said :There is no definition in the Oaths and Statutory Declarations Ordinance of
the expression child of tender years for the purpose of s.19. But we take it
to mean, in the absence of special circumstances, any child of an age, or
apparent age, of under fourteen years; although, as was said by LORD
GODDARD, C.J. in R. v. Campbell, [1966] 2 All E.R. 272,
Whether a child is of tender years is a matter of the good sense of the
court....
where there is no statutory definition of the phrase. The two boys in this
case, both of whom ere estimated to be under fourteen year old, must
therefore be considered as children of tender years.
See also Oloo s/o Gai v. R., [1960] E.A. 86, 88 (C.A.), and Sakila v. R., [1967] E.A. 403, 405
(T) where the magistrate described the witnesses as young persons. Noting that the
Children and young persons Ordinance (Cap.13) defined the term as defining a person
between twelve and sixteen, and noting Kibanyenys case, it was held that this was not a
sufficiently clear description.
It is necessary for the magistrate to satisfy himself and to record on the case record
whether or not the witness is a child of tender years, Sakilas case, p.405.
(b) Examination of the child before the giving of evidence

There are two situations in which a child of tender years may be allowed to give
evidence:(1) when he understands the nature of an oath and is either sworn or affirmed,
and (2) when he does not understand the nature of an oath.
(1) Where the child understands the nature of an oath
It is clearly the duty of the court (under s.19) to ascertain first, whether a
child tendered as a witness understands the nature of an oath... Nyasani s/o
Bichana v. R. [1958] E.A. 190 191 (C.A.).
The investigation should precede the swearing and the evidence and should
be directed to the particular question whether the child understands the
nature of an oath rather than to the question of his general intelligence.
Kibanyenys case quoted in Oloos case, p.88.
The courts duty is clear, and was supported in Kibangenys case, p.95 with the following
quotation from R.v. Surgenor, [1940] 2 All E.R. 249:That section (s.38 91) Children and young persons act, 1933, the wording of
which, hte court noted, is, for all relevant purposes, identical with s.19 OSD
Act) quite clearly states ... that it is the duty of the presiding judge to satisfy
himself whether or not a child of tender age is in a position to be sworn.
Those who preside over criminal trials ought to remember that it is the duty
of the presiding judge to make an investigation for himself. (emphasis
added)
Religious belief is fundamental to the understanding of an oath Oloos case, p.88
It must appear on the case record that there has been compliance with the section,
(Nyasanis case, p. 1919) including a finding as to the childs capacity to understand the
oath, ( Oloos case, p. 88) which is determined by the court through questions asked of the
child, (Fransisio Matevu v. R., [1961] E.A. 260, 262 (C.A.)
If after questioning, the court is convinced that hte child does, in fact, understand
the nature of an oath, arising from religious beliefs, the child may be sworn or affirmed and
may testify.
(2) If the child does not understand the nature of an oath.
If the court finds that the child does not understand the nature of an oath, it must,
before allowing the child to give evidence, determine through questioning the child two
things.:1
that the child is possessed of sufficient intelligence to justify the reception of the
evidence, and
that the child understands the duty of speaking the truth.
This is the language of s.19 OSD Act, but the requirement has been laid down even in
instances where there was no express statutory provison along the lines of s.19: see Gabriel
s/o Maholi v. R., [1960] E.A. 159, 160 (C.A.). Again, this is a condition precedent is hte
reception of unsworn evidence, and findings on each of these points must be recorded on
the case record. Nyasanis case, p.191. the Court in Kibangenys case, p.95 that the
... investigation need not be a lengthy one, but it must be made and, when made,
the tiral judge ought to record it.
Presumably the same holds true for cases where hte court is investigationg the intelligence
of the child and whether he understands the duty of speaking the truth.
where this procedure is not carried out and the evidence of a person of tender
years is of a vital nature, it may b that the omission may occasion a miscarriage of
justice. (seeKibangenys case, Nyasanis case and Fransisio Matovu v. R. cited by
the Court) These authorities show that where there is no other evidence other than
that of the child of tender years who has not been properly examined hte conviction
cannot be sustained. (Sakila v. R., [1967] E.A. 403 406 (T)
(Note: the Court then distinguished Sakilas case from Oloos case which had held that
whilst it would have been better for the trial judge to record in terms that he had satisfied
himself that the child understood the nature of an oath, this was the effect of his finding,
nothing in the instant case the facts fell far short of those in Oloos situation.)
(c) the requirement of corroboration
There is a distinction in law, but not in practice, concerning the requirements for
corroboration in cases where a child gives evidence (1) on oath and (2) under the provisions
of s. 19 OSD Act. In the former case it has been held that there is no legal necessity for
corroboration, whereas in the latter there is.
In practice, however, the warning ought
always to be given. The Court in Kibangenys case in a passage quoted again in Oloos
case at pp.90, 91, said:There was moreover nothr irregularity regarding the evidence of these boys
which has fortified us in allowing the appeal, and that is the failure of hte
learned trial judge, so far as can be gathered form the record, to warn either
himself or the assessors of the danger of convicting on their uncorroborated
evidence. Had their evidence been neither sworn nor affirmed, then there
would have been a legal necessity for its corroboration by other material
evidence implicating the appellant by virtue of the proviso to s. 19(1), (now
s.124 K.E.A.) and a conviction upon it, if uncorroborated would have been
bad notwithstanding such a warning. But even where the evidence of a child
of tender years is sworn(or affirmed), then although there is no necessity for
its corroboration as a matter of law, a court ought not to convict upon it, if
uncorroborated, without warning itself and the assessors (if any) of the
danger of se doing. This rule must be distinguished form the rule whereby
this court will look for and require corroboration of the evidence of
complainants: whether they be children or adults, in sexual offences: ( citing
cases). (emphasis added).
The direction must be in the normal terms set forth in R. v. Baskerville, [1916] 2 K.B. 658;
[1916] All E.A. 38; see p. 75 et seq and manda v. R. [1965] e.a. 193, 197 {C.A.} E.A 193,
197 (C.A.) where the definition was applied even though s. 152(3) T.COP.C. (proviso) did
not include the words implicating him in the section in dealing with corroboration.
The effect of the absence of a proper direction on
corroboration was again
considered in Maganga Msigara v. R. [1965] where the Court at p.475 stated:Shortly, this court will, in cases where there has been no proper direction as
to corroboration,, allow the appeal even if there was corroboration except in
those exceptional cases to which this court alter full consideration of all the
evidence and the circumstances of the case may, if it considers that no
substantial miscarriage of justice has occurred, apply the proviso to s.41(1) of
the East African Court of Appeal Rules, 1954, and dismiss the appeal.
One point to note is that the sworn evidence of a child has been held sufficient to
corroborate the unsworn evidence of another child; see R. v. Ramazani Sajabi s/o Abdulla,
(1936), 3 E.A.C.A. and Michael Rachlichi v. R., Kenya H. Ct. Cr. App. No.9/1965, reported
in Vol. I, East African Law Journeal, pat 3, p.207. It is possible, however, in view of the
desirability of a warning noted above, even in cases of sworn evidence, that these cases
would not be applied in the future.
(d0 Suggested procedure for dealing with the evidence of children.
1 A child of known or indeterminat age is offered as a witness.
2 The magistrate questions the child to ascertain:-
a) the age of the child,

b) the religious beliefs of the child,
c) whether the child understands the nature of an oath and its obligations, based
upon his religious belies.
3. Magistrate makes a definite finding on these points on the case record, including an
indication of the questions asked and the answers received.
If the court is satisfied from the .If the court is not satisfied that the
investigation
that
the
child child understands the nature and
understands the nature and obligations obligations of an oath, he will not allow
of an oath
the child to be sworn or affirmed and
the child may then be sworn or will note this on the case record.
affirmed and allowed to give evidence
on oath
continue to question the child, now to ascertain where he is possessed of

sufficient intelligence to justify the reception of the evidence, and whether the
child understands the duty of speaking the truth. Make a definite finding on
each of these points and record them on the case record, including an indication
of the questions asked and the answers received.
If the findings are affirmative, after If you are not satisfied that the child is
they have been recorded on the case possessed of sufficient intelligence to
record, note that the child is being justify the reception of his evidence, or
allowed to give evidence not on oath that he understands the duty of
under that provisions of s.19 of the speaking the truth, the child will not be
Oaths and Statutory Declarations Act.
allowed to give evidence at all.
4. It is necessary for the magistrate to warn himself on the case record whenever a child
under the age of 14 gives evidence, whether it be on oath or unsworn. Complete warnings
may be in language similar to the following:a. Where the child has been sworn or affirmed.
I now warn myself that although A (the child) has given evidence on oath (or
affirmation) and there is no necessity for corroboration as a matter of law, nonetheless it is
dangerous to convict in the absence of corroboration unless there are exceptional
circumstanes which provide strong reasons for doing so.
b. Where the child has given unsworn evidence
I now warn myself that in as much as the evidence of A ( the child) has been admitted in
accordance, with s.19 of the Oaths and Statutory Delarations Act, under s.124 K.E.A. the
accused shall not be liable to be convicted on such evidence unless it is corroborated by
other material evidence in support thereof.
5. The magistrate then proceeds to examine the records to determine whether there is
corroboration for the evidence of the child. (see discussion of corroboration, pg. 75 et sec.).
6
If there is evidence corroborating the evidence of the child, it must be set forth in the
judgment, and hte evidence of the child will then be considered in reaching a decision.
7. If there is no corroborating evidence the lack of corroboration should be stated in hte
judgment, The magistrate will then:(a) if the childs evidence was give on oath,
1. acquit the accused if the sole evidence implicating him in the
commission of the crime is that of the child, or
2. convict the accused even though the sole evidence implicating him is that of
the child, but only after discussing on the case record the reasons
of the fact that he is aware of the dangers of
The reasons should be clearly
for doing so, in view
convicting on uncorroborated evidence.
stated, and they must be strong and convincing reasons.
(b) if the childs evidence was unsworn as provided for in s.19 Oaths and Statutory
Declarations Act,
1. acquit the accused if the evidence of the child is the sole evidence implicating
the accused in the commission of the offence, or
2. If there is evidence in addition to that of the child which is, in itself, sufficient to
convict the accused, the accused may be convicted, but the fact that the evidence of hte
child is not being taken into account in reaching the decision should be clearly stated in the
judgement.
c. Compellability of ordinary witnesses
All witnesses, in order to give testimony, must be competent, hbt all competent
witnesses are not compellable; i.e. not all witnesses may be forced go give evidence if they
do not wish to do so. Similarly, in the case of husband and wife, and institutions involving
privilege, witnesses may not be allowed to give evidence even though they may wish to do
so.
Compellability means that a witness shall not be excused from answering any
question as to any matter relevant to the facts in issue in the suit or criminal proceeding.
Compellable witnesses must answer relevant questions whether or not he has the consent of
the defendant (in a criminal case) or the party who summoned him as a witness (in a civil
suit). The question arises only when the witness himself, or the party for whom he has been
called to give evidence, objects to the answer being given.
The general rule on the compellability of ordinary witnesses is set forth in s.128:-
128. a witness shall not be excused from answering any question as to any matter
relevant to the matter in issue in any suit or in any civil or criminal proceeding,
upon the ground that the answer to such question will incriminate, or may tend
directly or indirectly to expose, such witness to a penalty or forfeiture of any kind,
but no such answer which a witness is compelled to given shall subject him to any
arrest or prosecution or be proved against him in any criminal proceeding, except a
prosecution for giving false evidence by such answer.
.................................
A common sense meaning should be given to the word compelled.
It is
impossible to deny that in the case of ordinary laymen unacquainted with the technical
terms of this section, that they are compelled to answer on oath questions put either by the
Court or by the counsel, especially when the question is relevant to the case. an answer
given by a witness under such circumstances is protect by this section. Whether or not a
witness is compelled within the meaning of this section to answer
any particular
questions put to him while in the witness box is in each case a question of fact.
RATANLAL p. 292.
Section 152 C.P.C. deals with the procedure to be followed in the case of refractory
witnesses, i.e. those who are subborn, obstinate, etc.
152. (1) Whenever any person, appearing either in obedience to a summons or by
virtue of a warrant, or being present in court and being verbally required by the court to
give evidence.(a) refuses to be sworn; or
(b) having been sworn, refuses to answer any question put to him; or
(c) refuses or neglects to produce any document or thing which he is required
to produce; or
(d) refuses to sign his deposition, without in any such case offering any
sufficient excuse for such refusal or neglect, the court may adjourn the
case...
Thus the discretion leis with the magistrate to determine whether the witness has, in the
words of the seciton, any sufficinet excuse. Enquiry should be made and a ruling made.
The remainder of the section sets forth the procedure to be followed if the witness still
refuses to do that which is required hi.
s. 128 sets forth what is not a sufficient excuse.
In civil, as well as in criminal cases, a witness may feel that if he answers a
particular question or questions he will be incriminated either directly or indirectly, i.e.
that he may, by his answer, leave himself open to the laing of a criminal charge against him,
or be liable to pay some forfeiture or penalty to which he would not be subjected if he does
not answer. This fear of self-incrimination is, however, not a sufficient rason or excuse for
failure to answer, owing to the protection which s.128 gives to the witness if he answers. No
answer which the witness may give subject him to any arrest or any prosecution, nor may it
be proved against him in any criminal proceeding, except in the case where the charge laid
against him is one of perjury contra s.108 P.C.
Privilege, of course, is a sufficient excuse, see infra.
the questions must be relevant to the matter in issue, and if refusal to answer is based upon
an objection of irrelevancy, a determination must be made before the witness is required to
answer; see discussion as. 6 - 16 K.E.A., Chapter 1.
If a witness voluntarily answers a question put to him without seeking hte protection
of the section he is not, according to the Indian authorities, entitled to that protection,
which extends only to those answers which the witness is compelled to give, presumably
after objection or refusal to answer. See RATANLAL, pp. 291-2 and quotation above.
d. The husband-wife exception.

Owing to the nature of the marriage relationship, a group of special rules of
evidence have evolved in cases where one spouse is accused of an offence and the other is a
potential witness, either for the prosecution or the defence. These rules involve both
competency and compellability, as well as the privilege relating to the non-disclosure of
communications during marriage.
The relevant section is s.127 K.E.A. The definition of husband and wife in
questions of competency and compellability in criminal cases is the same as in civil cases
(see pp. 95-96, supra) as set forth in subs. (4)..
The rules as set forth in s.127 concern situations where the husband or wife of the
person charged is called as a witness (a) for the defence, (b) for the prosecution, and (c) is
compellable for either the prosecution or defence without the consent of the accusedspouse. Subs.(2) and (3) read:(2) In criminal proceedings every person charged with an offence, and the wife or
husband of the person charged, shall be a competent witness for the defence at every stage
of the proceedings, whether such person is charged alone o jointly with any other person:
(I) ...
(ii)
save as provided in subsection 3 of this section, the wife or husband of
the person charged shall no be called as a witness except upon hte

application of the person charged;
(iii)
the failure of.. the wife or husband of (the person charged) to give
evidence shall not be made the subject of any comment by the
prosecution.
(3)
In criminal proceedings the wife or husband of the person charged shall be a
competent and comparable witness for the prosecution or defence without the consent of
such person, in any case here such person is charged -
(a)
with the offence of bigamy; or
(b)
with an offence under Chapter XV of the Penal Code (which relates to

certain offences against morality; or
(c)
in respect of an act or omission affecting the person or property of the

wife or husband of such person or the children of either of them, and
not otherwise.
1Competency as a witness for the defence.
The husband or wife of the person charged is a competent witness for the defence at
any stage of the proceedings, provided that he or she is called as a witness on the
application of the defendant- spouse. Failure to call the spouse as a witness shall not be the
subject of any comment by the prosecution, save, it is submitted, as set forth on pp.88 and
93 in connection with the presumption contained in illustration (g) to s.119.
Strangely enough, the setting contains nothing concerning the compellability of a
spouse as a witness for the defence, and at present it appears that the husband or wife of
the defendant cannot be compelled to give evidence on behalf of hte accused.
See
discussion, para. (d) (4) pg. 104.

2. No general competency as a witness for the prosecution.
With the exception of those specific instances et forth in subs.(3) , a spouse is not a
competent witness for the prosecution. This is borne out by the inclusion of the words and
not otherwise which conclude the subsection.
The fact that the spouse is also not
compellable is inherent.
3. Competency and compellability for the prosecution in certain specified
cases:-
The only items when a spouse may give evidence for the prosecution - an in these
cases the spouse is both competent and compellable - are when the defendant-spouse is
charge with:-
(a)
bigamy conta s. 171 P.C.)
(b)
an offence contra one of the sections in Chapter XV P.C., sec 139-163
P.C, which deal with offences against morality.

(c)
an offence affecting the person of the spouse (e.g. ASSAULT),, or the
property of the spouse (e.g conversion of the property of a wife by her

husband, contara s. 273 P.C.);
(d)
an offence against the person or property of the children of either

husband or wife, whether born of the marriage or not.
The compellability of the wife is subject to the rules regarding the privilege concerning
non-disclosure of communications made during marriage, s.130, infra.
4. Recommendations of the Commission on the Law of Marriage and Divorce
As enacted, s. 127 is poorly arranged and every-complex, and the commission
recommendation redressing into a number of shorter, more concise sections, so hte at all
doubt as tot he competency and compellability of husband and wife as witnesses should be
removed. The Commission also recommended that in such criminal cases where the spouse
is both competent and compellable for the prosecution, since there will inevitably be ill-will,
the accused-spouse should not be convicted on the uncorroborted evidence of the witness
for the defence, and a competent, though not compellable witness for the prosecution at
every stage of the proceedings where the defendant-spouse is charged with adultery or
enticement, although the question of compellability will be of little significance if, as
recommended, no prosecution for these offences could be instituted except on the complaint
of hte spouse.
(Para.225).
as redrafted and renumbered, the section would read as
follows:Competency of spouses in civil suits.

127. In civil proceedings, hte parties to the suit and their spouses shall be competent
an compellable witnesses: provided that no person shall be compelled to give evidence that
he or she did or did not have marital intercourse with his or her spouse during any period
of time.
Competency of accused in criminal proceedings.

127A. (10 In criminal proceedings, an accused person shall be a competent witness
for hte defence at every stage of the proceedings, whether such person is charge alone or
jointly with any other person:
Provided that an accused person shall not be called as a witness except on his own
application.
(2) The failure of an accused person to give evidence shall not be made the subject of
any comment by the prosecution.
Competency of spouse as witness for the defence
127B (1) in criminal proceedings, the spouse of an accused person shall be a
competent and compellable witness for hte defence at every stage of the proceedings:
Provided that the spouse of an accused person shall not be called as a witness except
on the application of that person.
(2) The failure of the spouse of an accused person to give evidence shall not be made
the subject of any comment by the prosecution.
Competency of spouse as witness for the prosecution.
127C. 91) In criminal proceedings, the spouse of an accused person shall, subject to
the provisions of subsections 92) and (3), not b competent on compellable as a witness for
hte prosecution.
(2) The spouse of an accused person shall be a competent and compellable witness
for the prosecution at every stage of the proceedings where that person is charged(a) with the offence of bigamy; or any similar offence; or
(b) with an offence under Chapter IV of the penal Code; or
(c) in respect of an act or omission affecting the person or property of his or her
spouse or the children of either of them.
(3) The spouse of an accused person shall be a competent, but shall not be
compellable, witness for the prosecution at every stage of the proceedings where that
person is charge with adultery or enticement.
(4) An accused person shall not be liable to be convicted on evidence admitted under
sub-section (2) or sub-section (3) unless it is corroborated by other material evidence in
support thereof implicating him.
c. Privileged communications during marriage
A privileged statement is a statement which is made in such circumstances s to be
protected form disclosure in court by a witness. Sections 129-139 deal with various types of
privileged statements. In so far as husband-wife testimony is concerned, s.130 applies:130(1) No person shall be compelled to disclose any communication made to him or
her during marriage, by the other spouse; nor shall a person be permitted to disclose such
communication without the consent of the person who made it, or of his
or her
representative in interest, except in suits between the parties to the marriage or in any of
the cases referred to in paragraphs (a) Ib) and (c) of section 127(3) of this Act.
(2) In this section marriage means a marriage, whether or not monogamous,
which is by law binding during the lifetime of the parties thereto unless dissolved according
to law and includes a marriage under native or tribal custom.
......................
prior to the enactment of s.130(2) the dictate of HAMILTON, C.J. in the High Court
of East Africa case R. v. Amkeyo, (1917), 7 E.A.L.R. 14, which drew a distinction between
monogamous and polygamous marriages in cases involving he disclosure of a
communication made during marriage:, was binding. The result of this notorious case
was. in effect, that the protections of the law with regard to privileged communication
which has been extended to monogamous marriages made under statutory law was held
not to extend to marriages which were polygamous, or even potentially polygamous, on the
ground that polygamous marriages were not marriages in the tradition of one man-one
woman, for life, to the exclusion of all others.
As a result not only were wives of
polygamous marriages held to be competent witnesses, but hte communications made

during hte polygamous marriage were held to be admissible. See Robin v. R.,, (1929) 12
K.L.R. 134, R.v. Mwakio Asani s/o Mwanguku, 91932), 14 K.L.R. 133, R.v. toya s/o Kagure,
(1932),
14
K.L.R.
145
R.
v. ..................................................................................................................wherein it was held

that in Zanzibar a wife married acceding to native law or custom which rendered the
marriage potentially polygamous was a competent witness against her husband on a charge
of murder even though the marriage was, in fact, monogamous.
In Tanganyika the
distinction was incorporated in legislation in the C.P.C., see Laila Jhire Mawji and Another
v. R., (1956), 23 E.A.C.A 609, 611
development
of
the
law
to
case provides a comprehensive review of the

1963
including
the
reasoning
in
the
various
cases............................................................
..........................................................
............................................................................................................................................................
............................................................................................................................................................
............................................................................................................................................................
.........................
(a) In no instance may the...........................................be compelled to disclose any
communication made during marriage.
(b) The spouse without will be permitted to disclose communications made during
marriage only
1. if permission to disclose is given by the defendant spouse in any case
2.without the permission of the defendant-spouse in:a. suits between the parties to the marriage, and
b. where the defendant-spouse is charged with bigamy, an offence under
Chapter XV P.C., or in respects of an act or omission affecting the person or property of the
wife of husband of the defendant-spouse or the children of either of them referring to para.
(a), (b) and (c) of s.127 (3)
1. during marriage
The use of the words during marriage in s.130 is a phrase of limitation, therefore
the following would apply:-
(a) If a man and a woman are not legally married as defined in subs.(2) the one may be
compelled to disclose communicants and is a competent witness under the general rules of
competency, since the privilege of non-disclosure extends only to the parties of a valid
marriage.
(b) If there is a valid marriage, any communications between the parties are
privilege if made during the marriage, even though the marriage has been dissolved before
hte former spouse is called upon to disclose a communication.
(c) A communication made between the parteis to the marriage before the marriage
took place is not privileged, and the witness-spouse may be compelled to disclose it even
though there is a valid marriage subsisting at the item of the trial. It does not appear from
the Act, however, whether this is subject to the wife being a competent witness at the time
of the trial. Suppose, for example, in a case involving a charge of murder, the prosecution
wishes to call the wife of the defendant to give evidence only about communication made
before the marriage. Is there here an exception to the rule that a wife is not a competent
witness against her husband in a case of this type since the only evidence which the
prosecution seeks to elicit concerns non-privileged communications?
2. Communications in the hands of third parteis.

A document, even though it contains a communication form spouse to spouse which
is in hte hands of a third person is admissible in evidence when produced by the third
party, for in producing it there is no compulsion on the spouse. Similarly, in R. v. Manga
s/o Muleci, (1948), 15 E.A.C.A. 69, it was held that a communication made in public in the
presence of other persons is not in he nature of a communication between spouse, and is
not privileged.
3. Conditions precedent to admission of evidence of communications
There is no provision in the K.E.A. similar to s.130(2) T.E.A. which reads:-
(2) where a person whom he court has reason to believe is the husband or wife of a
person charged with an offence is called as a witness for the prosecution, the court
shall, except in the cases specified in the proviso to subsection (1), ensure that such
such person is before giving evidence of such person shall not be admissible unless
the court has recorded in the proceedings that this subsection has been complied
with. (Subs.(1) deals with general competency and compellabilty of spouses in
criminal cases, see p.106).
Despite specific statutory direction in the K.E.A., where the spouse is called as a witness for
hte defence, the magistrate should take similar safeguards, not only to ensure under
s.127(20 that the witness knows that while she is a competent witness, she is not
compellable, and under s.130 to ensure that he witness knows that communications during
marriage may not be disclosed except with the permission of the defendant-spouse unless
the case is one under s.12(3), para. (a), (b) and (c). This permission should not be implied,
but should be specifically given, and such permission should be recorded on the case
record.
4. The Commission Report.
If enacted, the Law of matrimony act, 196-will, by virtue of the second Schedule:1. Delete subs.(2) of s.130 defining marriage for the purposes of the section.
marriage will thereafter be as defined in s.3(1) of he Interpretation and General Provisions
act, i.e. a marriage contracted in accordance with or recognised as valid by the new Act.
2. Subs.(1) of s.130 will be renumbered s.130 and the words paragraphs (a), (b) and
(c) of section 127(3) will be replaced with the words subsection (2) or (3) of section
127C.
5. Procedure during trial involving husband-wife testimony.
a) Criminal case - spouse a witness for the prosecution. (Assumed H is hte accused, W the
witness).
1. magistrate becomes aware that witness, either offered or in the witness box, is or may be
married to defendant.
2. If the charge is laid under cases listed in para, (a), (b) or (c) or s.127, witness is both
competent and compellable
(a) in all other cases the witness will not be allowed to take the oath or give evidence, being
neither competent nor compellable. (s.127(3)
3. If charge paid as sated in (2) , magistrate ensures that marriage is valid as defined in
s.127(4) and notes on case record that Pw is the wife of the accused.
4. If wife refuses to answer a relevant question, magistrate warns witness that she must
answer in accordance with s.128. If witness still refuses, magistrate follows procedures set
forth in s.152 C.P.C.
5. If witness is asked by prosecutor to disclose communication made during marriage, or
begins to disclose such communication:
a) magistrate stops witness form giving he answer, and

b) warns the witness that while she is permitted to answer he question or disclose he
communication without the consent of the defendant-spouse, she will not be compelled to o
so.
c) fact of warning under s.130 and witnesss answer recorded on case record.
d0 If witness wishes to answer the question or disclose the communication, she is allowed
to do so. If she does not wish to do so, the trial proceeds without the question having been
answered or communication disclosed.
recorded on the case record.
The fact that hte witness declined should be
6. If the communication was made before the parties were married the witness may be
compelled to answer the question or disclose the communication.
7. If the communication was made after the marriage was dissolved, the witness, being both
competent and compellable, may be compelled to answer the question.
Responsibility for determining when the communication was made rests with the
magistrate.
...................
b.Criminal case - spouse a witness for the defence
If he charge is laid under cases listed in para. (a), (b) or (c) of s.127(3), the procedure above
applies. In all other cases:-
1. magistrate becomes aware that witness, either offered or in the witness box, is or may be
married to defendant.
2. Magistrate ensures that marriage is valid as defined in s.127(4) sad notes on case record
that DW is wife of the accused.
3. magistrate ensures that witness was called upon the application of the defendant, and
notes this fact on the case record.
4. The witness is not compellable and need not answer any questions which she does not
wish to. The provisions of s.152 C.P.C. are not applicable.
5. If witness is asked by the defendant or his counsel to disclose a communication made

during marriage, permission to do so has been given by the asking of the question. The
witness, however, while permitted to disclose the communication, cannot be compelled to
do so if she does not then wish to do so.
6. If the witness starts to disclose a communication made during marriage without having
been asked to do so:-
a) magistrate stops witness from giving the answer,

b) Enquires of the defendant or his representative in interest whether he objects
to the communication being disclosed.
1.
If defendant does not object, this permission is recorded on the
case record and the witness is permitted to disclose the

communication.
2.
if defendant objects, the witness is not permitted to disclose the

communication and the trial proceeds.
In neither case may the
witness be compelled to disclose the communication if she decides then

that she does not wish to do so.
6. The rules concerning when the communication was made, set forth in para.(6) - (8) in the
witness for the prosecution section, apply.
......................
c. Civil case-husband and wife parties.
1. Both parties are competent, but not compellable.
2. parties may be permitted to disclose communications made during marriage without the
consent of the other party-spouse, but may not be compelled to do so.
..........................
d Civil case - spouse a witness whether for party-spouse or other party.
1. Witness - spouse is competent, but not comparable.
2. Witness-spouse may not disclose communicants made during marriage without the
consent of the other spouse; query: does this cover all communications made during
marriage even if the other spouse is not a witness or a party or the defendant/
3. If permission is given, the witness-spouse may still not be compelled to disclose hte
communication if she then chooses not to do so.
f. Other privileges set forth in the K.E.A..
In addition to the privilege of non-disclosure of communions made during marriage,
there are a number of other privileges set forth in the K.E.A.. The presumption set forth in
illustration (g) under s.119 (see p.88) that evidence which could be and is not produced
would, if produced be unfavourable to the person who withholds it, does not apply to these
situations, for there the privilege of withholding the information is a privilege specifically
conferred by statue.
These privileges arise for different reason:a) the source of the information sought, ie. where the information comes from and
the relationship between the source and the interest of society as a whole: for example,
privileges related to official records and communications, information concerning
commission of offences, Bankers Books, tc.
b) the position which the source of the information occupies; for example, the
privileges of a court.
c) the nature of the relationship which gives rise to the privilege; for example the
privilege concerning communications made to advocates.
The subject of privilege is related to the question as to who may give evidence in the
sense that the subject includes the question as to who may withhold evidence on the
grounds of privilege.
1. Privilege of court
129. No judge or magistrate shall, except upon the special order of some court to which he
is subordinate, be compelled to answer any questions as to his own conduct, in court as
such judge or magistrate, or as to anything which came to his knowledge in court as such
judge or magistrate, but he may be examined as to other matters which occurred in his
presence while so acting.
......................
The basis of this rule appear to be that cross-examination or comment on judicial
conduct, may be incompatible with the prestige of office; see NOKES,. p.192. This is one of
the instances where the privilege is given to hte witness unless the appropriate order is
given, hence the privilege could probably be waived.
Judicial privilege extends only to the courts own conduct while in court, and
anything which came into his knowledge while he was acting as judge or magistrate, again
in court. For example:On a trial in the High Court the defendant claims that a deposition taken before
magistrate x was taken improperly. magistrate x cannot be compelled to answer
any questions concerning the false evidence, since it involves something which came
to his knowledge in court when acting as a magistrate, except upon special order of
a court to which he is subordinate.
If the matters about which the judge or magistrate is to be examined concern
occurrences in his presence while acting as judge or magistrate, there is no privilege. For
example:-
The defendant is on trial in the high Court of attempting to assault a Police Officer
during a trial before magistrate S. s may be examined as to what occurred.
2 privilege relating to official records and communications.

131. Whenever it is stated on oath (whether by affidavit or otherwise) by a Minister, or by
the Secretary-General of the Organization, 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 belong to a class which, on grounds of public policy, should be
withheld form such production, the document shall not be admissible.(*)
This privilege is one given to one who is not called as a witness, and extends to a
class of documents, unpublished official records.
the principle underlying this Crown privilege is that disclosure of some official
information would be injurious to the interests of the State. Clearly the disclosure
of a plan to meet an invasion n time of war would fall within this principle, as
involving danger to the realm. But there are many less obvious injuries to the State,
including the disclosure of matters relating to internationals diplomacy. Further, it
has been asserted that an injury toe public service may be cased by the prospect of
disclosure which hampers the freedom of officials to communicate unreservedly
with each other. NOKES, P. 185
The term Minister is defined in s.3 of the Interpretation and General provisions
Act (Cap.2) as substituted in the Schedule to the Statute Law (Miscellaneous Amendments)
Act, 1967.
Minister means a person appointed as a Minister of the Government of Kenya

under the Constitution, or the President, Vice-President or the Attorney-General;
Minister means the Minister for hte time being responsible for the matter in
question.
Also in s.3 of hte Interpretation and General provisions act is found:the Organisation means the East African Common Service Organisation
established by Article 1 of the agreement set out in the schedule to the East African
Common Service Organisation act;
The Act, Cap.4, has been repealed by the act establishing the East African Community
(No.31 of 1967), but the definitions remain in the Interpretation and General Provisions Act
under the new legislation.
Example:A party to a suit or proceeding has called for hte production of a document which
forms part of unpublished official record. The document will not be admissible in evidence
provided:
-that there is presented to the court a statement on oath, by affidavit or otherwise
-signed by the Minister concerned or the Secretary-General of the Organization (if the
document is a part of their unpublished official records)
-which states that he has:1. examined the contents of the document;
2. that the document forms part of the unpublished official records of the
Ministry (or Organisation);
3. that he is of the opinion that production of the document would be prejudicial

to the public service by reason of a. the contents of the document, or
b. the fact that the document belongs to the class of documents which, on the
grounds of public policy, should be withheld form production.
The court is bound to accept without question the decision of the Minister or SecretaryGeneral of the Organization.
Last there be confusion as to the reason for the non-deletion of the definition of the
Organisation since there is no longer an East African Common Services Organization in
being, s.5 of the Treaty for East African Co-operation (No. 31 of 1967 provides for he
transfer of offices and officers of the Common Services Organization to the east African
Community, hence the Secretary-General of the Organisation is now hte Secretary-General
of the E.A. Community. Amendment of s.131 to reflect this new legislation has been
recommended
to
the
Attorney-General.
(NOTE
Community
substituted
for
Organisation Act NO. 20 of 1969.
..........................
3.Privilege of official communication.s

132. No public officer shall be compelled to disclose communications made to him in
the course of his duty, when he considers that the public interest would suffer by hte
disclosure.
.............
Note that subs.(2) of S. 144 C.P..C sets forth that nothing in the section, dealing with
compelling attendance of witnesses shall affect the provision of sections 132 and 133 of the
Evidence Act.... Therefore a witness in the position to make a claim of privilege under one
of these sections cannot be compelled to produce for the purpose of evidence documents
and writings in his possession or power which are describes in hte summons so long as hte
privilege is invoked.
The recent case of Raishuma Ltd, v. Sondhi, [1967] e.a. 624 (C.A.) considered in
detail the extent of the privilege granted to public officers under s.132.
The goods
deposited with a warehouseman under written terms which included an exemption clause
were apparently stolen. A police officer giving evidence for hte warehouseman stated as his
conclusion that the goods were stolen without the complicity of the defendant or his
servants but, claiming privilege under the section, refused to state the facts upon which he
reached his conclusion. The President of the Court stated the issue, which he described as
a mater of the very greatest importance... in respect generally of hte administration of
justice... as follows:- (pp. 626-7)
It was submitted that though s.132 of the Evidence Act (Cap.80) appears to be
worried in the widest terms nevertheless some restriction must be placed on its
ambit. It was urged that unless this was done the proper administration of justice
would be undermined in two important aspects. First, a party to litigation would be
precluded form placing before hte court relevant evidence where a claim of privilege
is made without any examination of the justification for such claim. Secondly,
where a claim of privilege is made the judge would be put in the position, as he was
in this case, either of accept the conclusion of the witness without knowing hte facts
upon which that conclusion is based, thus abrogating the judges duty of coming to a
conclusion on the facts, or of discarding the evidence of the witness for hte very
reason that to accept it would abrogate the judges functions.
After setting forth sections 131-133 with marginal notes and noting the present status of
English case law on the subject, the Court discussed the distinction between ss.131 and
132:-
It is to be noted that very broadly s.131 deals with what may be regarded as affairs
of state and requires the claim to be made on oath by a Minister, or a person of
equivalent status, that is by a person who would obviously be in a position to state
whether or not the disclosure of any particular document would be prejudicial to the
public interest, while s.133 deals with the non-disclosure of the names of informants
and channels or information in relation to the detection of crime. Section 132 is,
however, on the face of it extremely wide and would appear to give any public
officer- a phrase which would include, having regard to the definition in the
Interpretation and General Provisions Act (Ch.2), any person holding office,
permanent or temporary, paid or unpaid, in the service of Kenya no matter how
humble the office may be - the right to refuse to disclose information given to him in
the course of his duty, if he considers that such disclosure would be contrary to the
public interest.
If this section means what it appears to say then the most
extraordinary results will follow, results which I am sure the legislature never
intended. (Giving examples)... A section which is designed to protect the interest of
the State should not be construed in a manner which would endanger the interest of
he State. That it is not the law is shown by the very existence of s.131 and 133 on
each side of s.132. This being so it is clear that s.132 requires to be construed in a
restrictive manner.
The Court then interpreted the word official in the marginal note to s.132:In s.131 the word obviously means, in relation to a document, one which forms
part of the records of an office, that is a department, of the State. Similarly in s.132
in relation to a communication, whether it be oral or written, I consider it means
one which emanated internally form an office or department of state. It is wellknown that within government departments there are constant communications
between public officers, come of which communications are secret and some of
which are confidential. It is communications, whether oral or written, of this nature
which hte section is designed to protect. I do not wish to la down any inflexible rule
but I consider that broadly the privilege relates to official communications made to
a public officer, whether orally or in writing, by (his) fellow public officers or by
persons holding political office in the State. Certainly I do not consider that the
section means that a police officer may refuse to give evidence of any factual
evidence in his possession arising from inquiries in respect of an ordinary crime
unless some very good reason for claiming privilege exists. (emphasis added).
On the question as to what was means by the words he considers that the public interest
would suffer by the disclosure, the Court said on p.629:... although it must e hte public officer who decides t make the claim of privilege,
having made it the judge may require that he be informed of the circumstances in
which the claim is made so that he can determine whether the claim comes within
the ambit of the section. if such is not broadly the construction to be given to this
section then the course might, as regards the evidence of a public officer, be forever
required to perform their functions in the dark. Such a position I could not but
regard as being deplorable, contrary to public policy and contrary to the basic
interests of the State, one of which interests is the proper administration of justice.
(emphasis added)
SPRY, J.A.A agreed that the judge is entitled to make enquiries to satisfy himself
that s.132 is being properly invoke, but in hi view this would not extend to considering
whether the communication is in fact one the disclosure of which ought not to be
compelled.
The position, the, is summed up in the headnote, omitting reference to authors of opinions
and dissenting opinion:
(a) communications made to the official in the course of his duty read without the
marginal note privilege of official communications ordinarily relates to official
communications made to a public officer form an official source;
(b) if privilege is claimed the witness may be required by the court to explain the
circumstances in which he privilege is claimed to enable the court to decide whether the
public interest would suffer by the disclosure, but not to the extent of considering whether
the communication is in fact one of which disclosure ought not to be compelled.
..........................
4. privilege relating to information of commission of offence
133.(1) No judge, magistrate or police officer shall be compelled to say whence he got any
information as to hte commission of any offence, an no revenue officer shall be compelled
to say whence he got any information as to the commission of any offence against the law
relating to the public revenue or to income tax or excise.
(2) For the purposes of this section, revenue officer means any officer employed in
or about the business of any branch of hte public revenue, inkling any branch of the income
tax, customs or excise departments.
.....................
Again the privilege lies with the witness. RATANLAL says at p. 285:-
Although this section does not in express terms prohibit a witness, if he be willing,
from saying whence he got his information, the protection afforded by this section
does not depend upon a claim of privilege being made, but it is the duty of the
Court, apart from objection taken, to exclude such evidence, If objection is taken,
it cannot, since the law allows it, be made the ground of adverse inferences against
the witness. (see also SARKAR P.1165)
The public policy involved in this instance is that the names of persons who assist in the
detection of crimes through giving information should not be unnecessarily disclosed, for if
they were disclosed they would soon either cease to give information or become useless to
the police because they would become known to criminals.
SARKAR on p.1166 notes certain limitation on the rule:
(1) It applies only to the Identity of the informant, not to the contents of his
statement as such, for, by hypothesis the contents of the communication are to be used and
published in the course of prosecution. Much less does the privilege apply to prevent
merely the proof of contents which have already been de factoe disclosed, as in an action
against the informer for libel.
In this regard, note however the case of Bishen Chand Mohindra v. Mathra Dass,
(1941), 19 K.L.R. (2) 67, wherein the plaintiff brought a case for criminal libel against the
defendant, alleging that he had made certain defamatory remarks in a writen statement
made to the Superintendent of Police.
At the trial the Superintendant objected to
producing the file in which the statement was contained, alleging that he was acting in
accordance with the instructions of the Commissioner of Police. The Court distinguished
the instant situation from that in majju v. lachman, 46 A. 671 which SARKAR cites as the
authority for the limitation, saying on p.69 that Majjus case was one.
in which it was held that statements contained in a report of an alleged offence
made to a police officer were prima facie privileged but the privilege was qualified
and not absolute. The case was a civil suit for damages for defamation and the
defendants pleased justification admitting the correctness of the report. This is
sufficient to distinguish the case form he present one, where the issue is whether a
police officer can be compelled to produce a report without which it would seem that
the applicant could not prove his case,... To put it another way, it is one thing to
contend in a libel action that a defendant said certain words on a privileged
occasion, and something completely different to ask that a public officer should
disclose an official communication. Whether or not the communication was made to
the police officer who was not summoned it must be regard as disclosed to any police
officer into whose hands it came officially as disclosed to him in official confidence.
Thus the information was not only privileged under what is now s. 132, but under
s.133(se.124 and 125 I.B.A)
(2) If the identity of the informer is admitted or known, then there is no

reason for pretended concealment, and the privilege of secrecy would be merely an
artificial obstacle to proof.
(3) The privilege applies to communications to such officers only as have a
responsibility or duty to investigate or prevent public wrongs, and not to officials in
general. This ordinarily signifies the police, and officials of criminal justice generally. But
it may also include admimistrative officials
having a duty of inspection or of law-
enforcement in their particular spheres. (i.e. revenue officers).

Limitation (4) reads Even where the privilege is strictly applicable, the trial court
may compel disclosure, if it appears necessary in order to avoid the risk of false testimony
or to secure useful testimony. This rule is not applicable in East Africa, as laid down in
Kapoor Singh s/o Harnam Singh v. r., (1951) 18 E.A.C.A. 283 where counsel attempted to
discover the name of hte person who had given information relating to the defendants
possession of gold. Counsel cited in support of the proposition not only English cases but
sections of the Tanganyika C.P.C. and s.17(2) of the Tanganyika Orer in Council, 1920, the
general effect of which were that the practice and procedure of the criminal courts in
England should be followed in the High Court, submitting that these authorities overrode
the particular provisions of s.125 I.E.A... The Court, however, said on p.285: In our view, however, this proposition is unsound.
Secitn 125 of he Indian
Evidence act is clear and mandatory and in our view leaves no discretion to the
Court. We were referred to a passage in Sarkars Commentary o the Indian
Evidence Act, 7th edition. page 1203. Under the heading Limitations of the ?Rule
(4) appears the following comment:(quotation as above)
But the authority cited for this is Marks v. Beyfus (189) 25 Q.B.D. 494) and in our
view this is inconsistent with
the specific provisions of the section. se think that the effect of the sections is more correctly
stated in Woodroffe and Ameer Ali on the Law of Evidence applicable to British India, 9th
edition, page 934, as follows:`The court has under this section apparently no discretion to compel an answer even if
it consider disclosure necessary to show the innocence of the accused.!"
The remainder of Limitation (4) reads: "The source of information as to the commission of an
offence is only prohibited and not the custody of any document or other material objects that
might have been seized and tendered in evidence."
In certain situation the privilege hinders, rather than assists, the prosecuton, for if the
informer is not called as a witnesss, the evidence will not be admissible, being hearsay.
An example is Njunga v. R., [1965] E.A. 773 (K), in which the appellant, driving a disguised
car, was successfully chased by the police, acting on information received. Under the driver's
seat was a simi, and the appellant was charged with the offence of being armed by day with
intent to commit a felony contra s. 308(1)(d) P.C... Witnesses gave evidence saying that they
had been told by a police informer that there was a plot to use the disguised car to commit an
armed robbery, but the informer was not called to give evidence, nor was his name revealed.
The Court said (p.774):"In this case the informer, whoever he was, may very well have given true information.
Very possibly this disguised car was to be used to commit the felony of robbery. The driver of
the car, the appellant, very possibly was a party to that felonious enterprise. Very possibly the
simi which was under his seat was there to play its part in the robbery. But the knowledge
which the court below had of this felonious enterprise was derived from what a Sergeant of
Police told the court an uncalled, unnamed and unsworn individual had told him. Without
that hearsay evidence the court below very clearly would have found it difficult, if not
impossible, to have determined whether the applicant had the intent to commirt a felony and
if so what felony."
The difficulty which faces the prosecution was summed up:Informers play a useful part no doubt in the detection and prevention of crime, and if
they become known as informers to that class of society among whom they work their
usefulness will diminish and their very lives may be in danger. But if the prosecution desire
the courts to hear the details of the information an informer has given to the police, clearly the
informer must be called as a witness."
5. Privilege of advocates
If a legal advisor is to defend and represent his client to the best of his ability, he must
have all the facts concerning the case, including those which are most damaging. It istherefore
essential that clients feel secure in the knowledge that those admissions which he makes to his
advisor are not to be revealed in court.
Sections134 through 137 arebbasedupon this principle: that if communications to a
legal advisor were not privileged, a man would be deterred from revealing his case
completely, and would be denied the proper professional aid.
(a) general privilege of advocates and their servants.
134.(1) No advocate shall at any time be permitted, unless with his client's express
consent, to disclose any communication made to him in the course and for the purose of his
employment and such advcate, by or on behalf of his client, or to state the contents or
condition of ny documentwith whichhe has becmeacquainted inthecourse and for the purpose
ofhis professional employment, or to disclose any advice given by him to his client in the
course and for the purpose of such employment.
Providedthat nohing in his section shall protect from disclosure(a) any communication made in furtherance of any ilegal purpose;
(b) any fact observed by any advocate in the course of his employment
showing that any crime or fraud had been coomitted since
his employment, whetherthe attention of such
the fact by or on behalf of his
as such,
the commencement of
advocate was or was not directed to
client,
(2) The protection given by subsection (1) of this section shall continue
after the
emloyment of the advocate has ceased.

.........
135. The provisions of section 134 of this Act shall apply to interpreters, and the clerks
or servants of advocates.
.........
Note that the:
1. Communications to the advocate,
2. Contents or conditions of documents with which the

Advocate has become acquainted, or
3. Advice given by the advocate to his client
is privileged only if in the course of, and for the purpose of the advocate's professional
employment in or on behalf of the client.
No advocate is permitted to disclose any of the above wihout the express consent of the
client, andbreaches of this professional conduct is strongly deprecated by the courts.
For example, in Omari s/o Hassani v. R., (1956), 23 H.A.C.A. 580 the appellant had
been convicted on two statements by the deceased that he was one of the persons who
attacked him, and the judge, knowing that they should be accepted with caution, found
corroboration in the appellant's refusal to give evidenceon oath, particularly asthe
defending advocate informedthe Court that such refusal was against his advice.
In discussing this (p. 582) the Court said:"Moreover the learnedJudge was undoubtedly strongly influenced by the assurance
made to the Court by defending counsel that he had advisedthe accused to give evidence on
oath. Secion 126 of the (Indian) evidence Act is to the effect, that no advocateshall be
permited, unless with his client's consent, to disclose any advice given by him to his client in
the course of his employment. it was we think quite wrong and a breach of professional
confidencefor (counsel) to disclose to the Court that his client had refused to take his advice on
this very difficult question, and the learned Judge should not have allowed this disclosure to
affect his mind."
Note that the proviso does not protect communicationsmade in furtherance of an
illegal purpose, or certain facts observed.
Examples:a. X and his Advocate, acting together, plan to falsify X's income tax returns. This is
an illegfal purpose, and Y,, the advocate, could be compelled to disclose any communications
between himself and X in this connection.
b. X hires Y to assit him in preparation of his income taxreturns. In the course of
preparing the necessary papers, X reveals that he made false entries in books of account after
he employed Y. Y may be compelled to disclosethe fact in court.
c. Same facts as in (b), but Y learns of the false entries made from Z, the head
bookkeeper employed by X. Y may be compelled to reveal the fact in court.
d. Same facts, but in conversation with X, advocate Y learns that X has falsfied certain
entries on customs forms, which has no bearing on the completion of income tax returns. Y
may be compelled to revealthe fact in court, whether he learned of the fact from X himself, or
from someone acting on behalf of X, such as Z, the head bookkeeper.
Note he distinction between the prtection from disclosure of information of this sort
received by the advocate as to acts or omissions concurring before commencement of the
employemnt, which are protected, and after commencement of the employment, which
disclosuresare not protected.
Interpreters, clerks, or other servants of the advocate, such asshorthand typists, are
aso subject to the provisions of s. 134 byvirtue of s. 133.
e. When does a client give consent to disclosure?
The mere fact that the client gives evidence himself, either by choice or otherwise, does
not mean that hehas given consent to disclosure of the items listed in s. 134(1) by his advocate.
136.(1) If any party to a suit or proceeding gives evidence therein at his own instance
or otherwise, he shall not be deemed to have consentee thereby to such disclosure as is
mentionedin section 134(1) of this Act.
............
Even, however, if the advocate, interpreter, etc. is called as a witnes by the client, consent to
disclosure is granted only if questions are asked about these
matters.
(2) If any party to a suit or proceding calls any advocate, interpreter, clerk or servant
as a witness, he shall be deemedto have consentee to such disclosure as is mentioned in section
134(1) of this act only if he questions such witness on matters which, but for such question, the
witness would not be at liberty to disclose.
.............
(c) Under what circumstances may the client himself be compelled to disclose
confidential communications?
Section 137 sets forth certain limited situations in which disclosure by the cient may be
compelled:-
137. No one shall be compelled to disclose to the court any confidential communication
which has taken place between him andhis advocate unless he offers himself as a
witness, in which case he may be compelled to disclose any such communications as
may apear to the court necessary to be known in order to explain any evidence which
he has given, but no others.
...............
This section extends the privilege of non-disclosure to the client except in certainly
narrowly defined instances which rest within the discretion of the court. It would appear
from the plain language of the section that while the opposing party might argue that he
disclosure is necessary for full explanation ofthe evidence which theclient has given after
offering himself as a witness, the decision will rest with the court dependentupon the court's
desire for further explanation. The seciton appears to exclude calling for disclosure when
theclient is called as witness by the opposing party.
Thescope of application is set forth in Munchershaw v. N. B. Co. 4 B. 576 as found in
SARMAR, pp. 1183-4:"....it was contended that though a client could not, under this section,
be compelled to disclose to the court a case, submitted by him to his counsel
for opinion, yet the other party was entitled to demand inspection udner s.130 (of the
C.P.C., 1882). WEST, J., however, declined to order the production of the paper and
observed: À compulsory disclosure of confidential communications is so opposed to
the popular conscience on that point that it would lead to frequent falsehood as to
whathad really taken place. The rule of protection seems to me to be one which should
be construed in a sensemost favourable to bringing professional knowledge to bear
effectively on the facts out of which legal rights and obligationsarise, and
disclsuresmade under s. 129 should not be enforced in any cases except where they are
plaintly necessary."
Communications between the client and hird persons in preparation for litigation are not
privileged under the seciton. RATANLAL on p. 289 summarizes:"Letters written by one of the defendant's servants to another, for the purpose of
obtaining information with a view to possiblefuture litigation, are not rivileged, even
though they might, under the circumstances, be required for the use of the defendant's
solicitor. In order that privilege may be claimed, it must beshown on the face of the
affidavit that the documents were prepared or written merely for the use of the
solicitor.
Reports made by defendant's servants to the defendant regarding the
subject-matter of the suit are not privileged."

6. Privelege as to title deeds and incriminating documents in the hands of
a third party
138. No witness who is not a party to the suit shall be compeled to produce his title
deeds to any propert, or any document in virtue of which he holdsany property as pledgee or
martgagee, or any document the production of which might tend to to incriminate him, unless
he has agreed in writing with the person seeking the production of such deeds or document, or
with some person through whom he claims, to produce them.
This privilege, arising out of the English law at a time when there was no registration
of title deeds, protected witnesses who were not parties to the suit. The privilege has been
severely criticized where registration procedureshave been incorporated into the law.
SARKAR, p. 1187, says:"The titl-deeds to land were in England always a secret of extraordinary importance
(before the modern system of title registration0.
paramount object.
The safety of landed interests wasa
Now, under any title-system not founded on compulsory public
registration, the secrecy of the title-instruments comes to be a vital consideration for the
occupants of the land. But under a system of compulsory public registration of titles or of
conveyances there is in such pivilege neither necessity nor utility. Those who do not register
their deeds are few in number, they voluntaily take the risk of loss; and their situation does
not justify special protection. Those who do record or register their deeds have no need for
such protection; their title, in general, stands or falls by what is publicly recorded, not by what
they privately possess.
Accordingly,, in the United states, this exceptional privilege has not been judicially
sanctioned."
As to documents which might tend to incriminate the witness, books of account cannot
be withheld on this ground, nor does the section protect a witness when the production of the
document might only make him liable for a civil action.
7. Privileged document in possession of another.
139. No one shall be compelled to produce documents in his possession, which any
other person would be entitled to refuse to produce if they were in his possession, unless such
other person consntsto their production.
.............
This section given the same protection to those who are in the possession of
documentswhich belong to others, attorneys, agents, mortgagees, etc., as s. 138 gives to
witnesseswho are not parties to the suit. However the persn in possesson of the document may
be allowed to produce the document if he wishes, even though others would be entitled to
refuse to produce them if they themselves has possession; the privilege rests with the one in
possession unless
consent to production is given by the other person, in which case production may be
compelled.
It shouldbe noted that if a witness is entitled to refuse to produce a document, and
cannot be compelled to poduce it, he will also not be cvompelled to give evidence as to its
production, for then the privilege would be meaningless.
142. Np person who is entitled to refuse to produce a document shall be compelled to
give oral evidence of its contents.
ILLEGALLY OBTAINED EVIDENCE

Evidence which is obtained by means or acts which are illegal or against the law.
How does a court faced with illegally obtained evidence deal with the evidence, for example
evidence obtained in violation of the constitution? It could also be evidence obtained in breach
of other statutes
A common way in which evidence is obtained illegally is through illegal searches and illegal
seizures e.g. breaking into somebodys house and obtaining evidence, through deception, threats,
bribes inducement or trickery.
The issue has to be looked at in two ways
1.
Section 20 of Police Act
2.
Section 118 of Criminal Procedure Code
S. 118 of the Criminal Procedure Code deals with the power that is given to search places. The
power that a Magistrate or police officer may be permitted to search any place, building, ship,
aircraft, vehicle, box or receptacle but they have to do this through a certain procedure i.e. Search
warrant. Essentially if you search and find something you are allowed to seize it. It could be a
thing or document. If you do not have a search warrant the search may be said to be illegal.
Section 20 of the Police Act empowers police officers investigating offences to search any place
that they believe has material necessary for the purposes of the investigation. The requirement to
get a search warrant may be dispensed with in instances where a police officer believes that the
process of getting the warrant is going to cause unreasonable delay. In these instances what is
required is that the officer should record in writing the basis upon which they form the opinion
that if they go looking for a search warrant there is going to be inordinate delay.
There are two approaches to illegally obtained evidence
1.
Mandatory inclusion;
2.
Mandatory Exclusion
Under common law jurisprudence there is mandatory inclusion whereas under US Jurisprudence
there is Mandatory Exclusion.
In common law the status is accurately represented by the following words it matters not how
you get it, if you steal it even, it would be admissible in evidence statement by Justice
Crompton in R V. Leatham The only exception that is entertained under common law is where
the evidence consists of a confession which has been obtained in consequence of some
inducement or oppression. Even though Crompton says it does not matter how you get it, it will
matter if there is inducement or oppression.
A confession that is obtained as a consequence of the deception or inducement of the person
confessing is not admissible even though it be relevant. E.g. a confession made to a colleague to
a person in jail has been held not to be confessed to a person in authority.
In civil cases there is no discretion to exclude admissible evidence. But even in criminal cases
there is a conflict between 2 positions i.e. where you admit all relevant evidence to ensure that
the guilty are punished and then there is the view that to admit improperly obtained evidence
condones and encourages impropriety on the part of the police. i.e. why go through proper
channels if you can obtain evidence illegally. There is no provision in the Evidence Act to guide
us. For instance if somebody got evidence through phone tapping is it admissible?
We look to the constitution which protects persons against being subjected to the search of their
person or property without their consent. It also protects against entry to your property by others
without your consent.
Under common law, there is the proposition that all relevant evidence is admissible regardless of
the fact that it was obtained illegally. Is this a good way to view evidence in light of sometimes
the excesses that police can be prone to? A person may be accused but they still have certain
rights. It is better that 99 guilty people go free than one innocent person to be found guilty. It is
much better that one occasional criminal go free than to condone illegal procuring of evidence.
Evidence which is relevant to a fact in issue is relevant no matter how it was obtained.
Lloyd V. Mostyn 1842 10 M&W 478 where Chief Justice Goddard says that the test to be applied
in considering whether evidence is admissible is whether it is relevant to the matters in issue. If
it is, it is admissible and the court is not concerned with how the evidence was obtained. This
case was quoted with approval in the case of Kuruma s/o Kaniu v. R 1955 1 AELR 236 The
Appellant was convicted with being in unlawful possession of two rounds of ammunition
contrary to Regulation 8 of the emergency regulations of 1952. Under the Emergency
Regulations only a police officer or an officer above the rank of assistant inspector was
empowered to stop and search an individual. The appellant was an employee of a European
settler farmer and had been granted leave of absence to go to his rural home in the reserve. He
was stopped at a roadblock, a police constable stopped him and on searching him found him with
the two rounds of ammunition and a penknife. 3 persons witnessed the search but were not
called to testify. The accused was charged and convicted of this capital offence and sentenced to
death. He appealed contending that the evidence used to convict him was illegally obtained.
The court held that the evidence was properly obtained in line with Justice Crompton statement
in Lloyd v. Mostyn.
King V. R 1969 1 AC 304

Police obtained a search warrant to search a house belonging to one Joyce Cohen looking for
Ganja and this was under the Dangerous Drugs Act. They read the warrant to Joyce Cohen but
apart from Joyce Cohen, there was the Appellant in Joyce Cohens House when the police came
and they did not read the warrant to the visitor. The police however searched the appellant and
another man in the house and they found the appellant with the drug. The Appellant was tried
and convicted for possession of dangerous drugs and he appealed arguing that the warrant was
not directly read to him and thus he was not legally searched. The court should have excluded
the evidence found on his person because the evidence was unfair to him. The court held that
there was no way of interfering with the way in which the court exercised its discretion and the
court went further to say that this was not a case in which evidence had been obtained by conduct
which was irreprehensible insinuating that if the conduct had been irreprehensible the court
would have allowed the appeal. There was a bit of discussion about constitutional rights
concerning illegal searches.
The court in R V. King referred to the case of R v Payne [1963] 1 AER 848 Where illegally
obtained evidence was excluded but it refused to be guided by this case. The facts of this case
are that the defendant was taken to a police station following a traffic accident. He was asked
whether he wanted to see a doctor, he agreed to see a doctor. At no time had he been told that the
results of the examination might be used in evidence against him. It was not made clear to him
that the doctor would enquire on whether he was fit to drive. At the trial for drunk driving the
doctor gave evidence that the driver was driving under the influence of alcohol and the defendant
was convicted. He appealed. The appeal court quashed the conviction on the ground that even
though the evidence was admissible, had the accused realised that the doctor would give
evidence on the matter of driving under the influence of alcohol, he might have refused to submit
himself for examination and in refusing to be guided by this case, the court in King v R stated
that there was no evidence in the Kings case of oppressive conduct or trickery on the part of the
police. The court essentially seems to be saying that illegality is graded, ie. That there is
illegality that can be allowed to pass but there are cases when it is reprehensible.
Jeffrey V. Black [1978] QB 490 The defendant was arrested by 2 police officers of the drug
squad for stealing a sandwich from a public house. The officer improperly searched his home
and found Cannabis and the defendant was subsequently charged with possession of drugs. The
accused put up in his defence that his house was searched illegally. The first court ruled out the
evidence of the search as inadmissible having been illegally obtained. The prosecution appealed
and the appeal was allowed. The Appeal court held
1.
That the mere fact that evidence is obtained in an irregular fashion does not of itself
prevent that evidence from being relevant and acceptable to court;
2.
Any court has the discretion to decline to allow any evidence brought by the
prosecution if they think it will be unfair or oppressive to allow it.
R V. Sang [1979] 2 AER P 1222

The Appellant was charged with conspiracy to utter forged US Bank Notes. He pleaded not
guilty before the case opened. Counsel for the Appellant applied for a trial within a trial to show
that the Appellant had been induced to commit the offence by a police informer acting on the
instructions of the police. The appellant was averring that for the inducement, he would not have
committed the offence. Counsel was hoping to persuade the judge to exercise his discretion to
disallow the evidence of the commission of the offence. The Judge however ruled that he had no
discretion to exclude the evidence. The appellant changed his plea to guilty and was convicted
and sentenced. He appealed against the judgment and the appeal was allowed by the court of
appeal and then the state appealed to the House of Lord. The House of Lord held that
1.
A Judge in a criminal trial always has discretion to refuse to admit evidence if its
prejudicial effect outweighs its probative value;
2.
Except in the case of admissions, confessions and evidence obtained from an accused
after the commission of an offence, a Judge has no discretion to refuse to admit
relevant admissible evidence merely because it had been obtained by improper and
unfair means.
3.
The use by the police of an agent provocateur or an informer to obtain evidence was
not a ground on which the discretion should be exercised. Such a factor may however
be considered in mitigating the sentence imposed on the accused.
4.
The defence of entrapment had no place in English Law and could not be accepted by
a Judge as a ground for exercising the discretion to exclude the prosecutions
evidence of the commission of the crime.
It would appear that the R v. Sang articulates the common law stand succinctly if evidence is
relevant to a fact in issue it is admissible provided it is not obtained under inducement,
confession or after the commission of an offence. The common law position is almost the
opposite of the position which exists in the US Today. The US Jurisprudence tries to run away
from the law. The law that is used to exclude illegally obtained evidence is the 4 th Amendment
which reads as follows:the right of the people to be secure in their persons, houses, favours and effects against
reasonable searches and seizures shall not be violated and no warrant shall issue but upon
probable cause supported by oath or affirmation and particularly describing the place to be
searched and the persons or things to be seized.
The question as to whether illegally obtained evidence is admissible in the US has been
debatable.
Weeks V. United States 232 US 283

The police went to defendants house without warrant, they searched and took possession of
various papers and articles that they found in that house and these were turned over to the courts.
The police later went to the premises hoping to get more evidence and carried away more letters
and this second search was also without a warrant. The whole question as to whether evidence
obtained by the police and the prosecutor was admissible was discussed and the judges stated if
letters and private documents can thus be seized and held and used in evidence against a citizen
accused of an offence, the protection of the 4th Amendment is of no value.
This was a Supreme Court Decision .
In Wolfe V. Colorado it was suggested that there was need for a uniform rule, even after the
Weeks case the courts had continued to apply common law rules and in this case of Wolfe the
court decided to have a uniform rule.
In Map V. Ohio 367 US P 643 The defendant was convicted in an Ohio state court for possession
of obscene literature. The conviction was affirmed by the Ohio Court of Appeal and later by
Ohio state supreme court. The obscene materials were discovered during a search that was not
subject to a warrant on the defendants house. The Ohio supreme court held that evidence
obtained by an unlawful search and seizure is admissible in a criminal prosecution. The court
continued to state that under the Supreme Court of United States in Wolfe v. Colorado a state
was not prevented by federal constitution from adopting the rule as it prevailed in Ohio. On
appeal to the US Supreme Court it was held that as a matter of due process evidence obtained by
a search and seizure in violation of the 4 th amendment is inadmissible in a state court as it is in a
federal court. If the supreme court holds evidence to be inadmissible it should apply across the
board.
The US Courts have gone even further and held that even if the evidence is not obtained illegally,
where such evidence is obtained in such a manner as to be reprehensible according to the spirit
of the constitution, such evidence shall not be admissible.
Note the importance that
jurisprudence attaches to peoples rights.
In Kenya the reigning position is that in Kuruma s/o Kaniu v. R. This Case has been criticised
in the context within which it was decided. It was decided during emergency regulation times
not withstanding provisions of S. 76 of the Constitution. The position seems to be that the end
justifies the means.

Evidence Law

Transféré par

Informations du document

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Evidence Law

Transféré par

Droits d'auteur :

Formats disponibles

MT.

Wigmore on Evidence vols. 1-X.

PRELIMINARY DEFINITIONS AND PRINCIPAL ITEMS OF JUDICIAL

RELEVANCE AND ADMISSIBILITY

DPP vs Kilbourne (1973) AC 729

SIMILAR FACTS EVIDENCE

Thomson v. R. /1918) A.C. 221.

WEEK 5 AND WEEK 6

BURDEN AND PROOF

CKale v. R. /1965 E.A. 555 (CA).

Gupta v. Continental Builders Ltd. 1978 K.L.R. 83.

RELEVANT FACTS WHICH MAY NOT BE PROVED

Mills v. Cooper /1967/ 2 Q.B. 459.

PUBLIC MONEY , COMPETENCE, COMPELABILITY AND PRIVILEGE:

Dhukale v. Universal TOT Co. et at. (1974) E.A. 395.

PUBLIC POLICY AND ILLEGALLY OBTAINED EVIDENCE

TWO WEEKS OF CATS (Oral and Written)

RELEVANCE & ADMISSIBILITY

The importance of the doctrine, for present

Statements, written or oral, of admissible facts made by a person who is dead, or

When the statement is made by a person as to the cause of his death, or as

R V. RAMADHANI ISMAEL [1950] ZLR 100

The transaction here is rape, which is

R V. RATTEN [1972] A.C 378

The prosecution tendered

which is the fact in issue.

Facts necessary to explain or introduce a fact in issue or relevant fact, or which

Facts, which explain or introduce facts in issue, are relevant.

R V. KANJI 1949 VOL 15 EALR 116

R V. MULJI JAMNADAS ETAL 1946 13 EACA 147.

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

any transaction by which the right or custom in question was created,

particular instances, in which the right or custom was claimed,

Relevance and admissibility

RELEVANCY AND ADMISSIBILITY

The Distinction Between Relevancy and Admiissibility

General Restriction on the admissibility of Evidence.

What kinds of Facts are Relevant?

Facts forming part of the same transaction.

existence of a custom or usage, which by definition is a custom or usage only because it is

and criminal cases.

In both instances, however, the

transaction may be referred to by a single legal term.

A sues B for a libel contains in a letter forming part of a correspondence. Letters

Facts causing or caused by other facts.

Facts relating to motive, preparation and conduct

the ommission of a crime, and includes preparations to accomplish the commission, to

Conduct of a party or agent of a party or victim of an offence

1. the conduct is in reference to the suit or proceeding, or

Statements affecting conduct.

Explanatory and introductory facts.

defendants presence in Kisumu happened.

Statements and actions referring to common intention:

The East African Law is broader than the English Law..

MORRIS, EVIDENCE IN EAST

When does the section became operative?

The acts of the conspirator extend to all conspirators.

Husband and wife may not conspire together

Problems of summing-up in conspiracy cases

Facts inconsistent with or affecting probability.

Facts affecting the quantum of damages

Facts affecting the existence of right or custom.