Class
Notes
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
person’s death comes into question and such statements are admissible whether
the person who made them was or was not, at the time when they were made, under
expectation of death, and whatever may be the nature of the proceeding in which
the cause of his death comes in question;
R V.
Premji Kurji [1940] E.A.C.A 58
In this case the
accused was charged with murder, the deceased had been killed with a dagger and
there was evidence that the accused had been found standing over the deceased
body with a dagger dripping with blood. The
prosecution adduced evidence that a few minutes before, the accused had been
seen assaulting the deceased’s 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
accused’s house. She got hold of her
father’s hand and took him to the accused house. She pointed to the accused person and said
‘daddy, this is the Bwana’ and the question was whether this statement was part
of the transaction. The transaction
here is rape, which is already finished by the time she goes to call her
daddy. Is it admissible? The court held that it was not part of the
transaction. The transaction was already
over.
Different courts
have different conception of what forms part of the transaction. The court in this rape case adopted a
conservative view of what formed the transaction.
TEPPER V. R [1952] A.C 480
In that case
there was a fire some place and a house was burning and the lady was heard to
ask somebody who looked like the accused some minutes later ‘your house is
burning and you are running away’ the question was whether this statement was
part of the transaction as the fact in issue the fact in issue being
Arson. It was held to be part of the
transaction.
R V. CHRISTIE 1914 AC
545
The
accused was convicted of indecent assault on a boy. The boy gave un-sworn evidence in which he
described the assault and identified the accused but made no reference to any
previous identification. The House of
Lords, by a majority of five to two, held that both the boy’s 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 witness’s consistency, ‘to show that the witness was able to identify at
the time’ and ‘to exclude the idea that the identification of the prisoner in
the dock was an afterthought or mistake.
THOMPSON
V. TREVANION 1693 Skin L.R. 402
This case had to
do with statements made by participants in or observers of events. Thus in this case it was decided that what a
wife said immediately upon the hurt was received and before she had time to
devise or contrive anything for her own advantage was held to be admissible in
evidence.
ALL THE ABOVE
CASES HAVE SOMETHING TO DO WITH WHETHER THE STATEMENT IS PART OF THE FACT OF IN
ISSUE.
R V. RATTEN [1972] A.C
378
Ratten was
charged with the murder of his wife. He offered the defence of accident. He said that he was cleaning his gun and it
accidentally went off injuring his spouse.
There was nobody else at the scene of crime or at the point where this
incident occurred and the prosecution sought to tender evidence of a girl who
worked with the telephone exchange who said that a call had had been made from
the accused house at about the time of the murder. The girl said that the voice on the phone
betrayed emotion, she was begging to have the police called over and before the
operator could link the woman with the police the phone hang up on the woman
side. The question was, was the
statement by the telephone operator admissible as part of the transaction? Did it happen contemporaneously with the
facts in issue? The court held that the
evidence of the telephone operator was admissible and in explaining why the
Privy Council explained that the important thing was not whether the words were
part of the transaction. The important
thing was whether the words were uttered during the drama. The court also said that the particular
evidence of the operator contradicted the evidence which was to the effect that
the only telephone call outside from his house during the murder was only a
call for an ambulance.
Section 7
“7. Facts
which are the occasion, cause or effect, immediate or otherwise, of relevant
facts or facts in issue, or which constitute the state of things under which
they happened or which afforded an opportunity for their occurrence or
transaction are relevant.”
They will be
those facts which will afford the opportunity to the facts in issue. The occasion may not be a fact in issue but
it helps us understand the fact in issue or relevant facts.
CAUSE/EFFECT
John Makindi V. R EALR 327
The accused in
this case was charged with the murder of a boy over whom he stood in loco
parentis (foster father) to. In his
defence the accused averred that the deceased was epileptic trying to explain
away the injuries on the boy and how they may have occurred. Medical evidence showed that the boy had died
due to severe bleeding in the head and a doctor testified that there were blood
clots in the boy’s head which had opened causing a lot of blood to flow from
the deceased’s head and therefore occasioning his death. The prosecution tendered evidence that the
accused had previously beaten up this boy and had previously been convicted for
beating up this boy and he had threatened the boy with further beatings on account
of having been convicted. The question
was whether evidence of previous beating was admissible. The court held yes that the evidence of
previous beatings was admissible in the circumstances? Could the court admit the evidence of past
beatings? The court held that the
beatings of earlier beatings was admissible because having taken the evidence
of blood clots at the head, it was important to know the cause of the blood
clots and the evidence of the previous beatings was admissible as a fact
leading to the bleeding and ultimate death.
The cause of
things or relevant facts or facts in issue will be admitted to explain the
cause of death. E.g. the opening of the
blood clots and loss of lots of blood.
The previous beatings showed us the cause and was thus admissible, so
the cause of things and the cause of relevant issues will be admitted. They explain the cause of death like in this
case.
STATE OF AFFAIRS
R V RABIN & ANOTHER
[1947] Vol. 14 E.A.C.A 80
In this case
there was a charge of corruption and the prosecution tried to lead evidence of
a previous shady dealing in which the two persons whose conduct was in issue
were involved. The question was whether
the evidence was relevant. The court
held that the evidence of the previous shady dealings was relevant because it
gave the state of things under which the bribe was given. It explained the state of things in which
the transaction occurred. The transaction which is the fact in issue.
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
deceased’s 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 person’s acts or
conduct. For all voluntary acts, there will be a motivation and you need to
look at a person’s conduct to explain away the motivation. Similarly any fact that would constitute
preparation for a fact in issue is also going to be admissible. The planning or arranging means and measures
necessary to commit an act or to do something.
If it is a crime, it will be the type of measures one takes to help achieve
the committing of that that crime. For
example if you intend to steal there will be surveillance involved. Hiring implements required to commit the
crime.
Similarly any
fact which shows the conduct of any party to the proceedings is relevant.
Section 8 (4)
8. (4) The word “conduct” in this section
does not include statements, unless those statements accompany and explain acts
other than statements.”
Statements are
expressly excluded. You are not talking
about statements but preparation. Under
section 8 you are dealing with things that people do and not things that people
do. If you want to bring in a statement,
it would have to be associated with an act.
Section 9
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 and 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
Company’s 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.
M’IBUI 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
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 child’s 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
16.
When there is a question whether an act
was accidental or intentional, or done with a particular knowledge or
intention, the fact that such act formed part of a series of similar
occurrences, in each of which the person doing the act was concerned, is relevant.
After
Makin the question arose as to whether the prosecution would have to wait until
a defence arose or could they wait to admit similar facts evidence.
The question
arose as to whether the defence had to wait until a defence arose to raise
similar fact evidence or could they raise it to prevent the accused from even
thinking of raising a defence.
Had
Lord Herschell only given direction on which subsequent courts could built on
and in Harris V DPP AC. 394
Viscount
Simmons settled the matter .
“It
was an error to draw a closed list of circumstances of when similar facts
evidence was admissible. He dispelled
the notion that Lord Herschell one did not have to wait until the accused
person raised a defence of accused or mistake for one to bring up the defence
before introducing such evidence.
Lord
Herschell only gave instance when similar facts evidence could be raised and
that Lord Herschell only raised instances.
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 Francis’s experience with
other people was relevant to rebut lack of knowledge.
The evidence of
Francis with other persons was relevant here to rebut lack of knowledge.
John Makindi V. R
Evidence of
similar fact in John Makindi was admitted on the ground that it illustrated the
hostility and ill-will between John Makindi and his foster child. On state of mind one of the findings
explained the cause of loss of blood and the other evidence showed that he had
been previously taken to court and had threatened the child with further
beating on account of having sent him to prison. Similar evidence can be used to show the
intention in which an act was done.
You can pin the act on a person because they admitted but you may be
unable to establish what the state of their mind was. You use similar fact evidence to illustrate
that a person had fraudulent intention.
R V. Armstrong
Armstrong was
charged with murdering his wife by administering arsenic poison on her. This poison was actually found in his house
tied up in packets containing a fatal dose.
Armstrong claimed that he used the poison to kill weeds as a gardening
aid. There was actually no evidence that
he had administered the poison on his wife.
The prosecution however sought to lead evidence that a few weeks after
Armstrong’s wife’s 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 doctor’s intention in purporting to
examine the woman and rebutted the doctors’ assertion that he was using it to
examine the woman.
Achieng’ V. R
Achieng’ was a
permanent secretary who had an imprest account and was charged with stealing
76,000/- from that account. His defence
was that he had no intention to defraud and that he intended to account for the
money but was apprehended prematurely.
The prosecution however adduced evidence to the effect that on six
previous occasions, Achieng’ had taken money from his imprest account and never
accounted for it. The question was
whether the evidence of previous occasions was admissible and the court held
that it was admissible because it rebutted his defence of intention to account
for the money.
The
Queen V. Harold Whip and Another (1955) 28 KLR
The two accused
were charged with conspiracy to defraud the City Council. The case for the prosecution was that
pursuant to an agreement between the two accused, one of them was a City
Council Engineer and the other one an excavator, the 1st accused,
certified payments as due to the 2nd accused firm for the excavation
of hard rock which the 1st accused knew to be greatly in excess of
what had been excavated. The 1st
accused had therefore caused excessive payment to be made by the City Council
to the contractors. The prosecution
alleged that this was done fraudulently and that he had not just made an honest
mistake in the estimation of the rocks.
The prosecution actually brought evidence that there had been a case
where the same accused had overestimated the amounts owed to the 2nd
accused an event which had occurred in 1953.
The court held that the 1953 transaction rebutted a defence of honest
mistake. Essentially showing the state
of mind with which he had acted.
R V. Mortimer
Mortimer was
charged with murdering a woman cyclist by knocking her down. He claimed that it was an inevitable
accident. The prosecution however
adduced evidence that Mortimer had on previous occasions knocked down other
female cyclists. It was held that this
evidence of the previous incidence was admissible to show that he intended what
he had done. It was not an
accident. The nature of the event as a
whole ruled out coincidence and the conclusion was gleaned from looking at the
transaction as a whole.
SIMILAR
FACTS EVIDENCE TO IDENTIFY THE PERPERTRATOR OR DOER OF AN ACT
Where it is shown
that a particular act has been done but nobody knows for sure who did it, if it
so happens that other acts of distinctive similarity with the one under
consideration have occurred and a particular person has been involved, then an
inference may be drawn that he was the doer of the act under
consideration. It is notable however
that for this inference to be drawn the similarity must be very distinct to
ensure propensity on its own should not be used to judge a person. For example if handbags disappear and it is
known that they disappear during the break and this time a person is caught
walking out with a handbag and then it is discovered that this person never
comes back to class after the break and a modus operandi is drawn that this person
has been taking the handbags and the person has a liking for a particular kind
of handbag. Essentially you are looking
for similarities.
R V. STRAFFEN:
In this case a
young girl was found strangled by the roadside and it was clear from examining
her that there had been no attempt at sexual assault on her person. Straffen had been seen around the scene of
crime but there was no evidence that he was directly or indirectly connected
with the murder. It was established as a
fact that Straffen had strangled two girls at a different place two months
earlier and had also left their bodies by the roadside. It was also clear that there had been no
attempt at sexual assault on these girls.
Straffen had been committed to a mental hospital for the offence and at
the time the girl whose murder was under consideration had been killed;
Straffen had escaped from the mental hospital and was at large. When the police went to interview him he said
even before he was questioned ‘I did not kill the girl’. He was convicted on the basis of the evidence
of the other two girls. Again it was
established that he had had the opportunity to murder the girl having escaped
from the mental hospital and the fact that he had been seen near the scene he
had the opportunity and the propensity was so distinct.
Thompson V. R
Thompson had
carnal knowledge of two boys and he gave them a date 3 days later. He described the place of the date as a
street outside a public toilet. Thompson met the two boys at the appointed
hour. On noticing the presence of
strangers, Thompson gave the boys some money and asked them to go away. It turned out that these strange persons were
police and when they approached Thompson he told them that they had got the
wrong man. On being searched Thompson
was found in possession of a few bottles of chemicals and a further search of
his house yielded photos of naked boys.
The judges relied on this evidence and its use as alleged by the
boys. The boys said what the chemical had
been used for. In the words of the
court, being gay had characteristics that were easily recognisable. It elicited a distinct propensity and was
therefore a reliable means of identification.
Paul Ekai V. R
[1981] CAR 115
Paul was charged
with the murder of Joy Adamson a famous conservationist. His defence was an alibi (alibi is assertion
of not being at the locus quo). Ekai
said that he had been in Isiolo staying with his grandmother. The evidence was that on the material night,
one of the 3 trunks of boxes in the deceased tent including the one containing
the cash box had been forced open by a person using a bar which had been taken
from the workshop at the camp. The
intruder had escaped using the animal enclosure. The prosecution gave evidence that 3 weeks
earlier, there had been a theft at the camp and on that occasion the box
containing the cash box had been forced open with the bar taken from the camp
workshop. The intruder on that previous
occasion had gone out through the animal enclosure. When Paul was apprehended after the murder,
he was found in possession of some clothes stolen from the camp on the previous
occasion. Paul was the deceased’s 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 wife’s dead body was found floating in the
bathtub and a few months later the insurance paid. Smith proceeded to marry another woman, took
out an insurance policy on her in his favour and made assertions that she was
epileptic and she too was found dead in the tub and he proceeded to collect
insurance and married yet another one whose body was also found dead. He was charged with murdering wife no. 1 on
the basis of the subsequent deaths of wives 2 and 3 in similar
circumstances. In the words of the court
the coincidence was too fantastic to be credible and this of course ruled out
the possibility that the drowning of the women in the bath was an
accident. In the words of the court the
act was done by human hands and the motive was clear so it was not an act of
God.
Makin V. Attorney
General
The question
arose whether the dying of the children adopted by the Makins was coincidental.
R V. BOLL
In the Republic
V. Boll, Boll stayed with his sister as husband and wife when incest
was not an offence and they even had a child together when incest was not an
offence. After parliament made incest an
offence, the two were charged for having an incestuous affair, but they
continued living together as man and wife.
Even after incest had been made an offence, they still continued to live
together as man and wife and the question was whether the evidence of the
previous cohabitation as man and wife could be used against them. They were convicted of incest because their
previous association ruled out innocence of their subsequent association. The logic was that if two people have
previously lived as husband and wife, unless they separate to live under
separate roofs they continue to live as husband and wife. The burden is on them to rebut this
presumption and they were unable to do that.
To summarise
similar fact evidence we should look at
Section
16 of the Evidence Act
“When
there is a question whether a particular act was done, the existence of any
course of business, according to which it naturally would have been done, is
relevant.”
For instance if
you are trying to establish whether people had lived as husband and wife if you
can show previous cause of dealing where they were living as man and wife that
would be admissible.
Admission of
similar fact evidence is the exception to the general rule and will only be
admitted when it has strong probative value.
What
is similar fact evidence and when is it admissible? Section 15 and 16 wise
sayings of judges and case law.
JUDICIAL
NOTICE
Judicial
notice is defined as what judges see or the liberty accorded a judicial officer
acting as such to recognise the existence or non-existence of certain facts or
phenomena without calling for evidence.
On what basis
will Judicial Notice be allowed: -
1.
The habit or customs of the court and
this relates to the authenticity for instance of certain signatures. You don’t have to prove the authenticity
every time they come to court. Seals of
the court you don’t 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 don’t
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 won’t know what everybody else knows.
The effects of judicial notice Section
59 of the Evidence Act
“No fact of which the court shall take
judicial notice need be proved.
Judicial
notice dispenses with proof.
Section
60 enumerates matters that the court should take judicial notice of.
60. (1) The courts shall take judicial
notice of the following facts:-
(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 contestations then proof will have to be called.
Section 60 (1)
(b) Judicial Notice should be
taken of the general course of proceedings and privileges of parliament, but
not the transactions in their journals.
The court need
not call for evidential proof of privileges accorded to parliament. These provisions however exempts from
judicial notice transactions in parliamentary journals. Whatever is recorded in the Hansard is not
going to be taken judicial notice of.
Section 60 (1)
(c) - Judicial Notice should be
taken of articles of war for the Armed Forces.
Section 60 (1)(e) - the
public seal of Kenya; the seals of all courts of Kenya; and all seals which any
person is authorized by any written law to use;
Section 60 (1)
(f) - The accession to office, names, titles, functions and signatures of
public officers if the fact of their appointment is notified in the Gazette;
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.”
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.
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
guilty knowledge. From experience we can infer that a woman who is in
possession of stolen goods after the theft and cannot give account of those
goods is either the thief or has received them knowing them to be stolen. We are talking of recent possession.
In Zus V. Uganda the question
arose, the court here refused to apply the doctrine of recent possession after
the accused was found in possession of a stolen bicycle 7 months after it had
been recorded lost. The trial court had
actually applied that doctrine to convict the thief of both the theft and
receiving stolen goods because the accused had not given any reasonable
explanation by how he had come upon the bicycle. The Appeal Court held that 7 months cannot be
described as recent and consequently the court of appeal quashed the conviction
for theft while upholding the conviction for receiving stolen goods.
PRESUMPTION OF
LIKELY FACTS S. 119
(IMMUTABILITY OF THINGS)
A thing or state
of things which has been shown to exist within a period shorter than that
within which such things or state of things usually cease to exist is presumed
to be still in existence. An example is
given in the case of
Kanji
& Kanji V. R. 1961 E.A 411 C.A
In this case a
sisal factory employee’s 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 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 Appellant’s 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 L’s evidence without corroboration. On Appeal the Appellant was saying that he
was wrongly convicted because of lack of this warning on the part of the judge. The court held that there was no good reason
for quashing the conviction because L did not know before the murder that any
of his companions had a knife.
Essentially the court held that L was not an accomplice in the crime of
murder. The court here defined
accomplices as persons who are Participes
Criminis in respect of the actual crime charged whether as principal
participants before or after the fact. It included people who procured, aided
or abetted in the commission of the crime.
The Court was trying to exonerate L from being a participant. He did not participate in the stabbing
because he was not aware that his colleague had a knife.
REBUTTABLE
PRESUMPTIONS OF LAW:
To rebut this
presumption you need conclusive evidence.
These are presumptions that are decreed by law. A good example is the presumption of
genuineness in a document purporting to be the Kenya Gazette. There is also the presumption that a person
between 8 and 12 is not criminally liable unless it can be shown that he knew
that his action was morally and legally wrong.
Once you establish the basic fact, then the person could not be exposed
to criminal liability unless you bring evidence to show that he knew that what
he did was legally and morally wrong.
Section 83.
Presumptions as to documents
“(1) The
court shall presume to be genuine every document purporting to be a
certificate, certified copy or other document which is—
(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 89: (1) The
court shall presume that maps or plans purporting to be made or published by
the authority of the Government, or any department of the Government, of any
country in the Commonwealth were so made or published and are accurate.
(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 person’s 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 person’s 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 Registrar’s office, it could have been a customary
law marriage.
R
V. Shaw (1943) Times Law Report 344
This was a case
of bigamy where there was proof of celebration of a prior marriage and the
accused did not give evidence to rebut this evidence. The man though he denied did not bring
evidence to rebut.
3. COHABITATION: This is where a man and woman live
together and hold themselves as man and wife to all whom they interact
with. There is a presumption that they
are married. That at some point they got
married. Re Taplin
Mary
Njoki V. John Kinyanjui Mutheru & Others CA 71 OF 194
Mary Njoki was a girlfriend of the deceased since
her university days and his at the school of law. They were to be seen together during the
holidays. He would save some money from
his allowance and send to her at campus.
After their graduation they lived together at different places and then
the deceased expired. Njoki sought a
share of the deceased estate. This move
was opposed by the deceased’s 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.
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.
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;
2.
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.
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 Plaintiff’s let a car on
hire-purchase to M. By some unidentified
mistake or oversight on the part of the plaintiffs, HPI were not informed of
the agreement. M, falsely asserting that
he was the owner of the car, offered it for sale to the defendant, a car
dealer. The defendant contacted HPI, who
informed him that the car was not registered with them. The defendant bought the car and later sold
it. The plaintiffs sued the defendant
for its conversion. A majority of the
House of Lords held that the plaintiffs were under no legal duty to the
defendant to register or to take reasonable care in registering with HPI the
hire-purchase agreement in question and accordingly that an estoppel by
negligence could not arise to prevent them from proving their claim against the
defendant.
The third aspect
of estoppel is as a facet of substantive law and it can amount to a defence
barring the plaintiff from proving some fact essential to his or her case. Our Evidence Act does not define Estoppel and
the definitions of Estoppel that we have are drawn from case law and the
original source of the word Estoppel which is drawn from French word which
means stop!
Law v.
Bourveries [1891]3 ch. 82
The case
illustrates Estoppel as a rule of evidence and cannot be used to found an
action. Can only be used as a shield and
not as a sword. It is a substantive
right that can bar a plaintiff from bringing in a fact;
Some principles
as to estoppel!
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.
2.
Estoppel cannot be used to circumvent
the law so you couldn’t invoke estoppel to render an invalid act valid or vice
versa.
3.
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.
4.
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.
5.
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
6.
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 plaintiff’s 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 plaintiff’s action was dismissed. On Appeal by the plaintiff, it was held that
1.
The defendants knowing the plaintiff’s
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.
2.
Equity should be satisfied by granting
the plaintiff a right of access at B and a right of way along the road.
3.
In view of the sterilization of the
plaintiff’s land for a considerable period resulting from the Defendant’s acts,
the right should be granted without any payment by the Plaintiff.
There are 4
general classifications of Estoppel
1.
Estoppel by Record
2.
Estoppel by Deed
3.
Estoppel by Agreement
4.
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
2.
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
2.
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
defendant’s 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 father’s car which
collided with the defendant’s 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 father’s
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 Marginson’s car driven by his wife as his agent and an
omnibus driven by Blackburn servant.
Marginson’s 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 wife’s 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.
2.
No Estoppel will arise upon recitals or
descriptions which are immaterial or not intended to bind (there will be
instances where a recital …)
3.
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;
2.
There has been a contract as a result of
the unequivocal statement;
3.
The statement is from both parties;
4.
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:
1.
There was no consideration;
2.
It was illegal and not in accordance
with the charging provisions of the Electric Power Act;
3.
Plaint disclosed no cause of action
because the plaintiff had at the material time no licence under the said Act;
4.
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 landlord’s 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 landlord’s 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 bailee’s 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 statement’s truth or
if you are under a duty to act and you don’t 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
didn’t. This failure would be what
people relied on and it could give rise to estoppel.
Greenwood
V. Martin’s 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 husband’s 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 lawyer’s
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 1940’s 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.
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 3rd party, the 3rd party can disclose the
information. Privilege is personal to
whom it is conferred. It is not the
information that is privileged, it is the person. Communications during marriage are privileged
(S. 130) in a situation where two parties are married, they enjoy the
privilege. If the husband discloses to
the wife that he committed a crime, the wife is privileged but if a wily
housemaid overhears the conversation, she can disclose.
Public policy
requires that if you are possessed of information, it is not to be disclosed.
Privilege may be
broadly divided into two parts; private and official.
Official
privilege flows from the official status of a person. It includes the privilege of judges and
magistrates, public officers in connection with official information. A Police Officer can claim privilege in court
not to disclose his source of information.
Privilege of an
accused person against self incrimination, privilege of witnesses, spouses and
legal professional privilege. Privilege
is granted to the client in an advocate/client relationship.
CATEGORIES
OF PRIVILEGE:
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 3rd
party, privilege does not arise.
Rumping V. D.P.P. [1964] A.C.
In
this case Rumping was a Dutch Seaman charged with murder. He gave a letter to a shipmate to post to his
wife outside England. The letter
contained a confession to the offence of murder. The letter was turned over to the police and
the objection was raised on the admissibility of the letter on the grounds of
spousal privilege. The court held that the
letter was admissible in evidence because the privilege is inadmissible where
the letter has been intercepted by 3rd parties.
Section
1230 (2) in this section ‘marriage’ means a marriage, whether or not
monogamous, which is by law binding during the lifetime.
LEGAL PROFESSIONAL PRIVILEGE S. 134 OF
EVIDENCE ACT
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 Appellant’s 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 person’s official status vis-Ã -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 driver’s
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 minister’s 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
minister’s 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 minister’s decision.
Duncan
Claim for
negligence in relation to construction of a
submarine
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 mis-direction. In
the words of the Court of Appeal it was up to the prosecution to prove that the
cows were stolen. In criminal cases the
burden of proof has to be beyond reasonable doubt, having doubt or suspicion is
not enough. In the words of the Court of
Appeal, the mere fact that the accused kept quiet did not approve of the
matters.
Alois Nyasinga v. R
In that case which was a murder trial, there was evidence that at the
time that the appellant committed the offence he was drunk. He had stabbed the deceased the deceased in
the neck inflicting him with a fatal wound.
The trial judge directed himself and the assessors that it was for the
appellant to prove that he was so inebriated as to be unable to form the intent
to kill.
On appeal, the decision of the first court was reversed by the Court of
Appeal who said that the trial court had misdirected itself and the assessors
on the matter of intent. The Judge
should have explicitly told the assessors that it was not for the Appellant to
prove that he was so drunk he could not form intent to kill or hurt the
deceased. It was the duty of the
prosecution to prove that the Appellant was not so affected as to be incapable
of forming intent. even though if a
person is trying to establish a defence and one wants the court to excuse them
from having done something, say murder and you want to plead self defence, or
insanity, while it is incumbent for you to bring the matter before the court,
it does not discount the prosecution’s 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 prisoner’s 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 F cannot trace J to
testify. T has evidence that M may
have
been married previously to A in 1978 and that A is still alive.
Advice T and F.
The presumption
of marriage will arise where there has been a ceremony of marriage which has
been subsequently cohabitated. If the
parties had capacity to contract a marriage then the law presumes that they are
validly married. Presumption of marriage
can also be established through ceremony and cohabitation. The formal validity of a marriage depends
upon the lex loci celebrationis i.e. the law of the place where one purports to
have gotten married and failure to comply with the formal requirements of the
local law may make a marriage void. Once
it is admitted that a marriage was celebrated between 2 persons who intended to
marry then the formal validity is presumed to exist.
On advice to T,
beginning with the marriage of T and M, it will be presumed that T and M were
validly married in London in 1980. The
presumption of marriage is a very strong presumption, rebuttable only by strong
evidence that will go beyond a mere balance of probability. For instance in the decided case of Piers
V. Piers the couple got married in a private dwelling house while the law
required as a prerequisite for the validity of such a marriage that a special
licence be obtained. The Pierses did not
get that kind of licence and when the marriage turned sour, the validity of the
marriage was questioned. It was held that the presumption of marriage in favour
of the legality of marriage is not to be lightly repelled. The evidence against it or evidence to rebut
it must be strong, distinct, satisfactory and conclusive. The presumption of marriage is not lightly
repelled and requires evidence that can satisfy the court beyond reasonable
doubt as was held in Mahadervan V.
Mahadervan where was held that the
court must be satisfied beyond reasonable doubt if a presumption of marriage is
to be rebutted.
Evidence of a
prior marriage may suffice to rebut a presumption of marriage and therefore if
T is able to prove that M may have been married previously to A in 1978, this
would nullify T’s 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 J’s 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 M’s
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.
