LAWS OF KENYA

LAWS OF KENYAThe Evidence Act

Chapter 80Revised Edition 2009 (2008)

Published by the National Council for Law Reportingwith the Authority of the Attorney General.

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CHAPTER 80THE EVIDENCE ACT

ARRANGEMENT OF SECTIONSCHAPTER I-PRELIMINARY

Section1–Short title.2–Application.3–Interpretation.4–Presumptions of fact.

CHAPTER II–ADMISSIBILITY AND RELEVANCYPart I-General

5– General restriction on admissibility of evidence.6–Facts forming part of same transaction.7–Facts causing or caused by other facts.8–Facts relating to motive, preparation and conduct.9–Explanatory and introductory facts, etc.10–Statements and actions referring to common intention.11–Facts inconsistent with, or affecting probability of,

other facts.12–Facts affecting quantum of damages.13–Facts affecting existence of right or custom.14–Facts showing state of mind or feeling.15–Facts showing system.16–Facts showing course of business.

Part II– Admissions17–Admissions defined generally.18–Statements by party to suit or agent or interested

person.19–Statements by persons whose position or liability must

be proved as against party to suit.20–Statements by persons expressly referred to by party to

suit.21–Proof of admissions against persons making them, and by

or on their behalf.22–Oral admissions as to contents of documents.23–Admissions made without prejudice in civil cases.24–Effect of admissions.

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Part III–ConfessionsSection25–Confession defined.25A - Confessions generally inadmissible.26–Confessions and admissions caused by inducement, threat

or promise.27–Confession made after removal of impression caused by

inducement, threat or promise.28–Repealed29–Confessions to police officers.30– Repealed31–32–Confession implicating co-accused.

Part IV–Statements by Persons who Cannot be Called as Witnesses33–Statement by deceased person, etc., when– (a) relating to cause of death (b) made in the course of business (c) against the interest of maker (d) an opinion as to public right or custom (e) relating to existence of relationship (f) relating to family affairs (g) relating to a transaction creating or asserting, etc., a

custom (h) made by several persons and expressing feelings.34–Admissibility of evidence given in previous proceedings.

Part V–Statements in Documents Produced in Civil Proceedings35–Admissibility of documentary evidence as to facts in

issue.36–Weight to be attached to statement admissible under

section 35.Part VI–Statements under Special Circumstances

37–Entries in books of account.38–Entries in public records.39–Statements, etc., in maps, charts and plans.40–Statement of fact contained in laws and official

gazettes, etc.41–Statements as to law contained in books.

Part VII–Extent to which Statement is Admissible42–Extent of admissibility.

Part VIII–Judgments43–Judgments, etc., excluding jurisdiction.

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Section44–Judgments in rem.45–Other judgments of a public nature.46–Inadmissible judgments.47–Proof that judgment was incompetent or obtained by fraud

or collusion.47A–Proof of guilt.

Part IX–Opinions48–Opinions of experts.49–Facts bearing upon opinions of experts.50–Opinion as to hand writing.51–Opinion relating to customs and rights.52–Opinions of persons with special knowledge.53–Opinion on relationship.54–Grounds of opinion.

Part X–Character55–Character in civil cases.56–Good character in criminal cases.57–Bad character in criminal cases.58–Definition of “character”.

CHAPTER III–PROOFPart I – Facts Requiring No Proof

59–Facts judicially noticed.60–Facts of which court shall take judicial notice.61–Facts admitted in civil proceedings.

Part II–Oral Evidence62–Oral evidence.63–Oral evidence must be direct.

Part III–Documentary Evidence64–Proof of contents of documents.65–Primary evidence.66–Secondary evidence.67–Proof of documents by primary evidence.68–Proof of documents by secondary evidence.69–Notice to produce a document.70–Proof of allegation that persons signed or wrote a

document.71–Proof of execution of document required by law to be

attested. www.kenyalaw.org Evidence Cap 80 [2009] 5

Section72–Proof where no attesting witness found.73–Admission of execution of attested document.74–Proof where attesting witness denies execution.75–Proof of document not required to be attested.76–Comparison of signatures, seals, etc.77–Reports by Government analysts and geologists78–Photographic evidence–admissibility of certificate.

Part IV–Public Documents79–Distinction between public and private documents.80–Certified copies of public documents.81–Proof by certified copies.82–Proof of certain public documents.

Part V–Presumptions as to Documents83–Certified documents.84–Records of evidence.85–Gazette, etc., to be prima facie evidence.86–Gazettes, newspapers, and documents produced from proper

custody.87–Publications generally.88–Documents admissible in England.89–Maps or plans.90–Laws and judicial reports.91–Powers of attorney.92–Certified copies of foreign judicial records.93–Books, maps and charts.94–Telegraphic messages.95–Presumption as to due execution, etc.96–Documents twenty years old.

Part VI–Exclusion of Oral by Documentary Evidence97–Written contracts and grants.98–Evidence of oral agreement.99–Evidence to explain a patent ambiguity.100–Evidence to show inapplicability.101–Evidence to explain a latent ambiguity.102–Evidence of application to one of several subjects.103–Evidence of application to one of several sets of facts.104–Evidence to explain special words.105–Evidence of variation given by third parties.106–Wills.


Section106A–Section 106B to apply in proof of electronic records.106B–Admissibility of electronic records.106C–Proof as to electronic signature.106D–Proof as to the verification of electronic signature.106E–Presumption as to Gazette in electronic form.106F–Presumption as to electronic agreements.106G–Presumption as to electronic records and electronic

signatures.106H–Presumption as to electronic electronic signature

certificates.106I–Presumption as to electronic messages.

CHAPTER IV–PRODUCTION AND EFFECT OF EVIDENCEPart I–Burden of Proof

107–Burden of proof.108–Incidence of burden.109–Proof of particular fact.110–Proof of admissibility.111–Burden on accused in certain cases.112–Proof of special knowledge in civil proceedings.113– 114– 115–Disproving apparent special relationship.116–Disproving ownership.117–Proof of good faith.118–Conclusive proof of legitimacy.118A-Presumption of death.119–Presumption of likely facts.

Part II–Estoppel

120–General estoppel.121–Estoppel of tenant or licensee.122–Estoppel of acceptor of a bill of exchange.123–Estoppel of a bailee, licensee or agent.

Part III–Evidence of Children

124–Corroboration required in criminal cases.CHAPTER V–WITNESSES

Part I–Competency of Witnesses

125–Competency generally.126–Dumb witnesses.127–Competency of parties and spouses.

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Part II–Compellability and Privileges of WitnessesSection128–Compellability of ordinary witnesses.129–Privilege of court.130–Communications during marriage.131–Privilege relating to official records.132–Privilege of official communications.133–Privilege relating to information of commission of

offences.134–Privilege of advocates.135–Privilege of interpreters, and advocates’ clerks and

servants.136–Waiving of privilege of advocates, etc.137–Communications with an advocate.138–Title deeds and incriminating documents in hands of

third party.139–Privileged document in possession of another.140–Bankers’ books.141–Accomplices.142–Privileges to exclude oral evidence of documents.143–Number of witnesses.

Part III–Examination of Witnesses144–Court to decide as to the admissibility of evidence.145–Types of examination of witnesses.146–Order and direction of examinations.

Part IV–Questioning of Witnesses147–Person called to produce a document.148–Witness to character.149–Meaning of leading question.150–Leading questions in examination-in-chief and re-

examination.151–Leading questions in cross-examination.152–Examination as to whether certain formal matters are

contained in writing.153–Cross-examination as to previous written statements.154–Cross-examination as to credibility.155–Compulsion to answer questions as to credit.156–Cross-examination of accused person.157–Discretion of court to compel witness to answer

questions as to credit.158–Necessity for grounds before attacking character.159–Indecent or scandalous questions.160–Insulting or annoying questions.161–Discretion to allow cross-examination of own witness.162–Exclusion of evidence to contradict a witness.163–Evidence to impeach the credit of a witness.164–Circumstantial questions to confirm evidence.

Section165–Proof of consistency by former statements.166–Evidence to test statement of person not available as

witness.Part V–Refreshing of Memory and Production of Documents

167–Refreshing memory by reference to contemporaneouswriting.

168–Reference to accurate contemporaneous record thoughfacts themselves

not specifically recalled.169–Rights of adverse party as to contemporaneous writing.170–Production of documents of doubtful admissibility.171–Document produced in answer to notice to be given as

evidence if required.172–Consequence of refusal to produce document in answer to

notice.173–Extended powers of court for purpose of obtaining proper

evidence.Part VI–Questions by Assessors

174- Repealed.CHAPTER VI–IMPROPER ADMISSION AND REJECTION OF

EVIDENCE175–Effect of improper admission or rejection.

CHAPTER VII–BANKERS’ BOOKS176–Mode of proof of entries in bankers’ books.177–Proof and verification of copy.178–Restriction on compelling production of banker’s book.179–Inspection of bankers’ books.180–Warrant to investigate.181–Costs.

CHAPTER VIII–MISCELLANEOUS PROVISIONS182–Saving for other laws.183–Cessation of application of Indian Evidence Act.SCHEDULE.


CHAPTER 80 TheEvidence Act

Commencement: 10th December 1963An Act of Parliament to declare the law of

evidenceChapterI - Preliminary

1. This Act may be cited as the EvidenceAct.

2. (1) This Act shall apply to alljudicial proceedings in or before any courtother than a Kadhi’s court, but not toproceedings before an arbitrator.

(2) Subject to the provisions of any otherAct or of any rules of court, this Act shallapply to affidavits presented to any court.

3. (1) In this Act, unless the contextotherwise requires -

“admissible” means admissible in evidence;“advocate” has the meaning ascribed to

that expression in the Advocates Act, andincludes any person entitled, pursuant tosection 9 of that Act, to act as an advocate,whilst so acting in connexion with the dutiesof his office;

“bank” means a person or company or otherbody of persons carrying on, whether on his ortheir own behalf or as agent for another, anybanking business (as defined in section 2 ofthe Banking Act), and includes - (a) a financial institution within themeaning of section 2 of the BankingAct;

(b) the Kenya Post Office Savings Bankestablished by the Kenya Post OfficeSavings Bank Act;

(c) the Co-operative Bank of KenyaLimited; and

(d) for thepurposes ofsections 176and 177, anyperson or 46 of 1963, L.N. 22/1965, 17 of 1967, 8 of 1968, 10 of 1969, 13 of 1972, 14 of 1972, 19 of 1985, 7 of 1990, 14 of 1991, 9 of 2000, 5 of 2003,3 of 2006,7 of 2007,1 of 2009,L.N. 41/2009.Short title.Application. 17 of 1967, 1st Sch., 10 of 1969, Sch. Interpretation.L.N. 22/1965, 19 of 1985, Sch.1 0f 2009.Cap. 16. Cap. 488. Cap. 493B. www.kenyalaw.org EvidenceCap 80 [2009] 10

company or other body of persons carrying on bankingbusiness in Tanzania or Uganda; “banker’s book” includes a ledger, day book, cash book,

account book, and any other book used in the ordinary businessof the bank, whether in written form or on micro-film, magnetictape or any other form of mechanical or electronic dataretrieval mechanism; whether kept in written form or printoutsor electronic form.

“computer” means any device that receives, stores andprocesses data, or information applying stipulated processes tothe data and supplying results of that data or information; andany reference to information being derived from otherinformation shall be construed to include a reference to itsbeing derived therefrom by calculation, comparison or any otherprocess.

“court” includes all judges and magistrates, and allpersons, except arbitrators, legally authorized to takeevidence;

“evidence” denotes the means by which an alleged matter offact, the truth of which is submitted to investigation, isproved or disproved; and, without prejudice to the foregoinggenerality, includes statements by accused persons, admissions,and observation by the court in its judicial capacity;

“fact” includes - (a) any thing, state of things, or relation of things,capable of being perceived by the senses; and

(b) any mental condition of which any person is conscious; “fact in issue” means any fact from which, either by itself

or in connexion with other facts, the existence, non-existence,nature or extent of any right, liability or disability, assertedor denied in any suit or proceeding, necessarily follows;

(2) A fact is proved when, after considering the mattersbefore it, the court either believes it to exist, or considersits existence so probable that a prudent man ought, in thecircumstances of the particular case, to act upon thesupposition that it exists.

(3) A fact is disproved when, after considering the mattersbefore it, the court either believes that it does not exist, orconsiders its non-existence so probable that a prudent manought, in the circumstances of the particular case, to act uponthe supposition that it does not exist. 69 of 2000, s. 64.1 of 2009.9 of 2000, s. 64. www.kenyalaw.org Evidence Cap 80 [2009] 11

(4) A fact is not proved when it isneither proved nor disproved.

4. (1) Whenever it is provided by law thatthe court may presume a fact, it may eitherregard such fact as proved, unless and untilit is disproved, or may call for proof of it.

(2) Whenever it is directed by law thatthe court shall presume a fact, it shallregard such fact as proved, unless and untilit is disproved.

(3) When one fact is declared by law to beconclusive proof of another, the court shall,on proof of the one fact, regard the other asproved, and shall not allow evidence to begiven for the purpose of disproving it.ChapterII - Admissibility and Relevancy

Part I - General 5. Subject to the provisions of this Act

and of any other law, no evidence shall begiven in any suit or proceeding exceptevidence of the existence or non-existence ofa fact in issue, and of any other factdeclared by any provision of this Act to berelevant.

6. Facts which, though not in issue, areso connected with a fact in issue as to formpart of the same transaction are relevantwhether they occurred at the same time andplace or at different times and places.

7. Facts which are the occasion, cause oreffect, immediate or otherwise, of relevantfacts or facts in issue, or which constitutethe state of things under which they happenedor which afforded an opportunity for theiroccurrence or transaction are relevant.

8. (1) Any fact is relevant which shows orconstitutes a motive or preparation for anyfact in issue or relevant fact.

(2) The conduct of any party, or of anyagent of a party, to any suit or proceeding,in reference to such suit or proceeding or inreference to any fact in issue therein orrelevant thereto, and the conduct of anyperson an offence against whom is the subjectof any proceeding, is relevant, if suchconduct influences or is influenced by anyfact in issue or relevant fact, and whether it

was previousor subsequentthereto.

(3) Whenevidence ofthe conduct ofa person isrelevant anystatement madeto him, or inhis presenceand hearing,which affectssuch conduct,is relevant. Presumptions of fact. General restriction on admissibility ofevidence.

Facts forming part of same transaction. Facts causing orcaused by other facts. Facts relating to motive, preparation and conduct. www.kenyalaw.org EvidenceCap 80 [2009] 12

(4) The word “conduct” in this sectiondoes not include statements, unless thosestatements accompany and explain acts otherthan statements.

9. Facts necessary to explain or introducea fact in issue or relevant fact, or whichsupport or rebut an inference suggested bysuch a fact, or which establish the identityof any thing or person whose identity isrelevant, or fix the time or place at whichany fact in issue or relevant fact happened,or which show the relation of parties by whomany such fact was transacted, are relevant inso far as they are necessary for that purpose.

10. Where there is reasonable ground tobelieve that two or more persons haveconspired together to commit an offence or anactionable wrong, anything said, done orwritten by any one of such persons inreference to their common intention, after thetime when such intention was first entertainedby any one of them, is a relevant fact asagainst each of the persons believed to be soconspiring, as well for the purpose of provingthe existence of the conspiracy as for thepurpose of showing that any such person was aparty to it.

11. Facts not otherwise relevant arerelevant - (a) if they are inconsistent with anyfact in issue or relevant fact; or

(b) if by themselves or in connexion withother facts they make the existence ornon-existence of any fact in issue orrelevant fact highly probable orimprobable.12. In suits in which damages are claimed,

any fact which will enable the court todetermine the amount of damages which ought tobe awarded is relevant.

13. Where the existence of any right orcustom is in question, the following facts arerelevant - (a) any transaction by which the right orcustom in question was created,claimed, modified, recognized, assertedor denied, or which was inconsistent

withitsexistence; or

(b)particularinstances inwhichtherightorcustomwasclaimed,recognized orexercised, orinwhichitsexercise wasdisputed,asserted ordeparted from.14. (1)

Facts showingthe existenceof any stateof mind, suchas intention,knowledge,good faith,negligence,rashness, ill-will or good-

Explanatory and introductory facts, etc.

Statements and actions referring to common intention.Facts inconsistent with, or affecting probability of, other facts. Facts affecting quantum of damages.Facts affecting existence of right or custom. Facts showing

state of mind orfeeling. www.kenyalaw.org EvidenceCap 80 [2009] 13

will towards any particular person, or showing the existenceof any state of body or bodily feeling, are relevant, when theexistence of any such state of mind or body or bodily feeling isin issue or relevant.

(2) A fact relevant within the meaning of subsection (1) asshowing the existence of a state of mind must show that thestate of mind exists, not generally, but in reference to theparticular 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 relevantwithin the meaning of subsection (1), the previous conviction ofsuch person is also relevant.

15. When there is a question whether anact was accidental or intentional, or donewith a particular knowledge or intention, thefact that such act formed part of a series ofsimilar occurrences, in each of which theperson doing the act was concerned, isrelevant.

16. When there is a question whether aparticular act was done, the existence of anycourse of business, according to which itnaturally would have been done, is relevant.

Part II - Admissions17. An admission is a statement, oral or

documentary, which suggests any inference asto a fact in issue or relevant fact, and whichis made by any of the persons and in thecircumstances hereinafter mentioned.

18. (1) Statements made by a party to theproceeding, or by an agent to any such party,whom the court regards in the circumstances ofthe case as expressly or impliedly authorizedby him to make them, are admissions.

(2) Statements made by parties to suits,suing or sued in a representative character,are not admissions unless they were made whilethe party making them held that character.

(3) Statements made by - (a) persons who have any proprietary orpecuniary interest in the subject-matter of the proceeding, and who makethe statement in the character ofpersons so interested; or

(b) persons from whom the parties to asuit have derived their interest in the

subject-matterof thesuit,

Facts showing system. Facts showing course of business.

Admissions defined generally.Statements by party to suit oragent or interested person. www.kenyalaw.org EvidenceCap 80 [2009] 14

are admissions if they are made during thecontinuance of interest of the persons makingthe statements.

19. Statements made by persons whoseposition or liability it is necessary to proveas against any party to a suit, are admissionsif such statements would be admissible asagainst such persons in relation to suchposition or liability in a suit brought by oragainst them, and if they are made whilst theperson making them occupies such position oris subject to such liability.

20. Statements made by persons to whom aparty to the suit has expressly referred forinformation in reference to a matter indispute are admissions.

21. Subject to this Act, an admission maybe proved as against the person who makes itor his representative in interest; but anadmission cannot be proved by or on behalf ofthe person who makes it or by hisrepresentative in interest, except in thefollowing cases - (a) when it is of such a nature that, ifthe person making it were dead, itwould be admissible as between thirdpersons under section 33;

(b) when it consists of a statement ofthe existence of any state of mind orbody, relevant or in issue, made at orabout the time when such state of mindor body existed, and is accompanied byconduct rendering its falsehoodimprobable;

(c) if it is relevant otherwise than asan admission.22. Oral admissions as to the contents of

a document may not be proved unless and untilthe party proposing to prove them shows thathe is entitled to give secondary evidence ofthe contents of such document under this Actor unless the genuineness of a documentproduced is in question.

23. (1) In civil cases no admission may beproved if it is made either upon an expresscondition that evidence of it is not to begiven or in circumstances from which the court

can infer thatthe partiesagreedtogether thatevidence of itshould not begiven.

(2)Nothing insubsection (1)shall be takento exempt anyadvocate fromgivingevidence ofany matter ofwhich he maybe compelledto giveevidence undersection 134.

24.Admissions arenot conclusiveproof of themattersadmitted, butthey mayoperate asestoppelsunder theprovisionshereinafter Statements by persons whose position or liability must be proved as against party tosuit. Statements by persons expressly referred to by party to suit. Proof of admissions

against persons making them, and by or on their behalf. Oral admissions as to contents of documents.Admissions made without prejudice in civil cases.Effect of admissions.

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contained. Part III - Confessions

25. A confession comprises words orconduct, or a combination of words andconduct, from which, whether taken alone or inconjunction with other facts proved, aninference may reasonably be drawn that theperson making it has committed an offence.

25A. (1) A confession or any admission ofa fact tending to the proof of guilt made byan accused person is not admissible and shallnot be proved as against such person unless itis made in court before a judge, a magistrateor before a police officer (other than theinvestigating officer), being an officer notbelow the rank of Chief Inspector of Police,and a third party of the person’s choice.

(2) The Attorney General shall inconsultation with the Law Society of Kenya,Kenya National Commission on Human Rights andother suitable bodies make rules governing themaking of a confession in all instances wherethe confession is not made in court.

26. A confession or any admission of afact tending to the proof of guilt made by anaccused person is not admissible in a criminalproceeding if the making of the confession oradmission appears to the court to have beencaused by any inducement, threat or promisehaving reference to the charge against theaccused person, proceeding from a person inauthority and sufficient, in the opinion ofthe court, to give the accused person groundswhich would appear to him reasonable forsupposing that by making it he would gain anyadvantage or avoid any evil of a temporalnature in reference to the proceedings againsthim.

27. If such a confession as is referred toin section 26 is made after the impressioncaused by any such inducement, threat orpromise has, in the opinion of the court, beenfully removed, it is admissible.

28. (Repealed by 5 of 2003, s. 100.)29. No confession made to a police officer

shall be proved against a person accused ofany offence unless such police officer is -

(a) of orabovetherankof, ora rankequivalent to,inspector; or

(b) anadministrativeofficerholdingfirstorsecondclassmagisterialpowersandactingin thecapacity of apoliceofficer.30.

(Repealed by 5 of2003, s. 101.)Confession defined.Confessions generally inadmissible. 5 of 2003, s. 99. 7 of 2007.7 of 2007.Confessions and admissions caused by inducement, threat or promise.

Confession made after removal of impression caused by inducement, threat or promise.Confessions to police officers. 10 of 1969, Sch.


31. (Repealed by 5 of 2003, s. 102.)32. (1) When more persons than one are

being tried jointly for the same offence, anda confession made by one of such personsaffecting himself and some other of suchpersons is proved, the court may take theconfession into consideration as against suchother person as well as against the person whomade the confession.

(2) In this section “confession” means anywords or conduct, or combination of words andconduct, which has the effect of admitting interms either an offence or substantially allthe facts which constitute an offence;

“offence” includes the abetment of, or anattempt to commit, the offence.

Part IV - Statements by Persons who cannot be called aswitnesses

33. Statements, written or oral, ofadmissible facts made by a person who is dead,or who cannot be found, or who has becomeincapable of giving evidence or whoseattendance cannot be procured, or whoseattendance cannot be procured without anamount of delay or expense which in thecircumstances of the case appears to the courtunreasonable, are themselves admissible in thefollowing cases - (a) when the statement is made by aperson as to the cause of his death, oras to any of the circumstances of thetransaction which resulted in hisdeath, in cases in which the cause ofthat person’s death comes into questionand such statements are admissiblewhether the person who made them was orwas not, at the time when they weremade, under expectation of death, andwhatever may be the nature of theproceeding in which the cause of hisdeath comes into question;

(b) when the statement was made by suchperson in the ordinary course ofbusiness, and in particular when itconsists of an entry or memorandum madeby him in books or records kept in theordinary course of business or in the

discharge ofprofessionalduty;or ofanacknowledgementwrittenorsignedby himof thereceiptofmoney,goods,securities orproperty ofanykind;or of adocument usedincommerce,writtenorsignedby him,or ofthedate ofaletterorotherdocument

usually dated, written or signed byhim;

(c) when the statement is against thepecuniary or proprietary interest ofthe person making it, or when, if true,it would

Confession implicating co-accused. Statement by deceased person, etc., when- 8 of 1968, Sch.

relating to cause of death

made in the course of businessagainst the interest of maker www.kenyalaw.org EvidenceCap 80 [2009] 17

expose him or would have exposed him to acriminal prosecution or to a suit fordamages;

(d) when the statement gives the opinionof any such person as to the existenceof any public right or custom or matterof public or general interest, of theexistence of which, if it existed, hewould have been likely to be aware, andwhen such statement was made before anycontroversy as to such right, custom ormatter had arisen;

(e) when the statement relates to theexistence of any relationship by blood,marriage, or adoption between personsas to whose relationship by blood,marriage or adoption the person makingthe statement had special means ofknowledge, and when the statement wasmade before the question in dispute wasraised;

(f) when the statement relates to theexistence of any relationship by blood,marriage or adoption between personsdeceased, and is made in any will ordeed relating to the affairs of thefamily to which any such deceasedperson belonged, or in any familypedigree or upon any tombstone, familyportrait or other thing on which suchstatements are usually made, and whensuch statement was made before thequestion in dispute was raised;

(g) when the statement is contained inany deed or other document whichrelates to any such transaction as ismentioned in section 13 (a);

(h) when the statement was made by anumber of persons, and expressedfeelings or impressions on their partrelevant to the matter in question.34. (1) Evidence given by a witness in a

judicial proceeding is admissible in asubsequent judicial proceeding, or at a laterstage in the same proceeding, for the purposeof proving the facts which it states, in thefollowing circumstances -

(a) wherethewitnessisdead,orcannotbefound,or isincapable ofgivingevidence, oris keptout ofthe wayby theadverseparty,orwherehispresencecannotbeobtainedwithoutanamountofdelayorexpensewhichin thecircumstances

of the case the court considersunreasonable;

and where, in the case of a subsequentproceeding -

an opinion as to public right or custom relating to existence of relationship relating to family affairsrelating to a transaction creating or asserting, etc., a custom.made by several persons and expressing feelings.

Admissibility ofevidence given in previous proceedings. www.kenyalaw.org EvidenceCap 80 [2009] 18

(b) the proceeding is between the same parties or theirrepresentatives in interest; and

(c) the adverse party in the first proceeding had theright and opportunity to cross-examine; and

(d) the questions in issue were substantially the same inthe first as in the second proceeding. (2) For the purposes of this section -

(a) the expression “judicial proceeding” shall be deemedto include any proceeding in which evidence is taken by aperson authorized by law to take that evidence on oath;and

(b) a criminal trial or inquiry shall be deemed to be aproceeding between the prosecutor and the accused.

Part V - Statements in Documents produced in Civil Proceedings

35. (1) In any civil proceedings wheredirect oral evidence of a fact would beadmissible, any statement made by a person ina document and tending to establish that factshall, on production of the original document,be admissible as evidence of that fact if thefollowing conditions are satisfied, that is tosay - (a) if the maker of the statement either- (i) had personal knowledge of the

matters dealt with by the statement;or

(ii) where the document in question isor forms part of a record purportingto be a continuous record, made thestatement (in so far as the mattersdealt with thereby are not within hispersonal knowledge) in theperformance of a duty to recordinformation supplied to him by a per-son who had, or might reasonably besupposed to have, personal knowledgeof those matters; and

(b) if the maker of the statement iscalled as a witness in the proceedings:

Providedthat thecondition thatthe maker ofthe statementshall becalled as awitness neednot besatisfied ifhe is dead, orcannot be Admissibility ofdocumentary evidence as to facts in issue. www.kenyalaw.org EvidenceCap 80 [2009] 19

found, or is incapable of giving evidence, or if hisattendance cannot be procured without an amount of delay orexpense which in the circumstances of the case appears to thecourt unreasonable.

(2) In any civil proceedings, the court may at any stage ofthe proceedings, if having regard to all the circumstances ofthe case it is satisfied that undue delay or expense wouldotherwise be caused, order that such a statement as is mentionedin subsection (1) shall be admissible or may, without any suchorder having been made, admit such a statement in evidence - (a) notwithstanding that the maker of the statement isavailable but is not called as a witness;

(b) notwithstanding that the original document is notproduced, if in lieu thereof there is produced a copy ofthe original document or of the material part thereofcertified to be a true copy in such manner as may bespecified in the order or the court may approve, as thecase may be. (3) Nothing in this section shall render admissible any

statement made by a person interested at a time when proceedingswere pending or anticipated involving a dispute as to any factwhich the statement might tend to establish.

(4) For the purposes of this section, a statement in adocument shall not be deemed to have been made by a personunless the document or the material part thereof was written,made or produced by him with his own hand, or was signed orinitialed by him or otherwise recognized by him in writing asone for the accuracy of which he is responsible.

(5) For the purpose of deciding whether or not a statementis admissible by virtue of this section, the court may draw anyreasonable inference from the form or contents of the documentin which the statement is contained, or from any othercircumstances, and may, in deciding whether or not a person isfit to attend as a witness, act on a certificate purporting tobe the certificate of a medical practitioner.

36. (1) In estimating the weight, if any,to be attached to a statement renderedadmissible by section 35, regard shall be hadto all the circumstances from which anyinference can reasonably be drawn as to theaccuracy or otherwise of the statement, and inparticular to the question whether or not thestatement was made contemporaneously with theoccurrence or existence of the facts stated,and to the question whether or not the makerof the statement had any incentive to concealor misrepresent facts.

Weight to be attached to statement admissible undersection 35. www.kenyalaw.org EvidenceCap 80 [2009] 20

(2) For the purpose of any rule of law orpractice requiring evidence to be corroboratedor regulating the manner in whichuncorroborated evidence is to be treated, astatement rendered admissible by section 35shall not be treated as corroboration ofevidence given by the maker of the statement.

Part VI - Statements under Special Circumstances37. Entries in books of account regularly

kept in the course of business are admissiblewhenever they refer to a matter into which thecourt has to inquire, but such statementsshall not alone be sufficient evidence tocharge any person with liability.

38. An entry in any public or otherofficial book, register or record, stating afact in issue or a relevant fact, and made bya public servant in the discharge of hisofficial duty, or by any other person inperformance of a duty specially enjoined bythe law of the country in which such book,register or record is kept, is itselfadmissible.

39. Statements and representations offacts in issue or relevant facts made inpublished maps or charts generally offered forpublic sale, or in maps or plans made underthe authority of any Government in theCommonwealth, as to matters usually stated orrepresented in such maps, charts or plans, arethemselves admissible.

40. When the court has to form an opinionas to the existence of any fact of a publicnature, any statement of it shall beadmissible which is made - (a) in any written law of Kenya, or inany notice purporting to be made inpursuance of any such written law,where the law or notice (as the casemay be) purports to be printed by theGovernment Printer; or

(b) in any written law in force in anycountry in the Commonwealth, or in anynotice purporting to be made inpursuance of any such written law,where the law or notice (as the casemay be) purports to be printed or

published byorundertheauthority oftheGovernment ofthatcountry.41. When

the court hasto form anopinion as toa law of anycountry, anystatement ofsuch lawcontained in abookpurporting tobe printed orpublishedunder theauthority ofthe Governmentof suchcountry and tocontain anysuch law, andany report ofa ruling ofthe courts ofsuch countrycontained in abookpurporting tobe a report ofsuch rulings,is admissible.Entries in booksof account. Entries in public records.

Statements, etc., in maps, charts and plans. Statement of fact contained in laws and official gazettes, etc.Statements as to lawcontained in books.


Part VII - Extent to which Statement is Admissible42. When any statement of which evidence

is given forms part of a longer statement, orof a conversation, or of an isolated document,or is contained in a document which forms partof a book or of a connected series of lettersor papers, evidence shall be given of so muchand no more of such longer statement, or ofsuch conversation, document, book or series,as the court considers necessary in theparticular case to a full understanding of thenature and effect of the statement, and of thecircumstances in which it was made.

Part VIII - Judgments43. The existence of any judgment, order

or decree which by law prevents any court fromtaking cognizance of a suit or holding atrial, may be proved when the question iswhether such court ought to take cognizance ofsuch suit or to hold such trial.

44. (1) A final judgment, order or decreeof a competent court which confers upon ortakes away from any person any legalcharacter, or which declares any person to beentitled to any such character, or to beentitled to any specific thing, not as againstany specified person but absolutely, isadmissible when the existence of any suchlegal character, or the title of any suchperson to any such thing, is admissible.

(2) Such judgment, order or decree isconclusive proof - (a) that any legal character which itconfers accrued at the time when suchjudgment, order or decree came intooperation;

(b) that any legal character to which itdeclares any such person to be entitledaccrued to that person at the time whensuch judgment, order or decree declaresit to have accrued to that person;

(c) that any legal character which ittakes away from any such person ceasedat the time from which such judgment,order or decree declared that it hadceased or should cease;

(d) thatanything towhichitdeclares anypersonto besoentitled wastheproperty ofthatpersonat thetimefromwhichsuchjudgment,orderordecreedeclares thatit hadbeen orshouldbe hisproperty.45.

Judgments,orders ordecrees, otherthan thosementioned insection 44,are admissibleif they relateto matters ofa publicnature

relevant to the inquiry, but such judgments,orders or decrees are not Extent of admissibility.Judgments, etc., excluding jurisdiction.Judgments in rem. Other judgments of a public nature.


conclusive proof of that which they state.46. Judgments, orders or decrees other

than those mentioned in sections 43, 44 and 45are inadmissible except where the existence ofsuch judgment, order or decree is a fact inissue or is relevant under some otherprovision of this Act.

47. Any party to a suit or otherproceeding may show that any judgment, orderor decree which is admissible under theprovisions of this Act and which has beenproved by the adverse party, was delivered bya court not competent to deliver it, or wasobtained by fraud or collusion.

47A. A final judgment of a competent courtin any criminal proceedings which declares anyperson to be guilty of a criminal offenceshall, after the expiry of the time limitedfor an appeal against such judgment or afterthe date of the decision of any appealtherein, whichever is the latest, be taken asconclusive evidence that the person soconvicted was guilty of that offence ascharged.

Part IX - Opinions48. (1) When the court has to form an

opinion upon a point of foreign law, or ofscience or art, or as to identity orgenuineness of handwriting or finger or otherimpressions, opinions upon that point areadmissible if made by persons speciallyskilled in such foreign law, science or art,or in questions as to identity or genuinenessof handwriting or finger or other impressions.

(2) Such persons are called experts.49. Facts not otherwise admissible are

admissible if they support or are inconsistentwith the opinions of experts, when suchopinions are admissible.

50. (1) When the court has to form anopinion as to the person by whom any documentwas written or signed, the opinion of anyperson acquainted with the handwriting of theperson by whom it is supposed to be written orsigned that it was or was not written orsigned by that person, is admissible.

(2) Forthe purposesof subsection(1), andwithoutprejudice toany othermeans ofdeterminingthe question,a person issaid to beacquaintedwith the hand-writing ofanother personwhen he hasseen thatperson write,or when he hasreceiveddocumentspurporting tobe written bythat person inanswer todocumentswritten byhimself orunder hisauthority andaddressed tothat person,or when in theordinary

Inadmissible judgments. Proof that judgment was incompetent or obtained by fraud or collusion.Proof of guilt. 10 of 1969, Sch.Opinions of experts.

Facts bearing upon opinions of experts. Opinion as to handwriting. www.kenyalaw.org Evidence Cap 80 [2009] 23

course of business documents purporting tobe written by that person have been habituallysubmitted to him.

51. (1) When the court has to form anopinion as to the existence of any generalcustom or right, the opinions as to theexistence of such custom or right of personswho would be likely to know of its existenceif it existed are admissible.

(2) For the purposes of subsection (1) theexpression “general custom or right” includescustoms or rights common to any considerableclass of persons.

52. When the court has to form an opinionas to- (a) the usages and tenets of anyassociation, body of men or family; or

(b) the constitution and government ofany religious or charitable foundation;or

(c) the meaning of words or terms used inparticular districts or by particularclasses of people,

the opinions of persons having special meansof knowledge thereon are admissible.

53. When the court has to form an opinionas to the relationship of one person toanother, the opinion, expressed by conduct, asto the existence of such relationship of anyperson who, as a member of the family orotherwise, has special means of knowledge onthe subject, is admissible:

Provided that such an opinion shall not besufficient to prove a marriage in aprosecution for bigamy or in proceedings for adivorce, or in any proceedings for damagesagainst an adulterer.

54. Whenever the opinion of any livingperson is admissible, the grounds on whichsuch opinion is based are also admissible.

Part X - Character55. (1) In civil cases, the fact that the

character of any person concerned is such as

to renderprobable orimprobable anyconductimputed to himisinadmissibleexcept in sofar as suchcharacterappears fromfactsotherwiseadmissible.

(2) Incivil cases,the fact thatthe characterof any personis such

Opinion relatingto customs and rights.Opinions of persons with special knowledge.Opinion on relationship.Grounds of opinion. Character in civil cases. www.kenyalaw.org EvidenceCap 80 [2009] 24

as to affect the amount of damages, is admissible.

56. In criminal proceedings, the fact thatthe person accused is of a good character isadmissible.

57. (1) In criminal proceedings the factthat the accused person has committed or beenconvicted of or charged with any offence otherthan that with which he is then charged, or isof bad character, is inadmissible unless - (aa) such evidence is otherwiseadmissible as evidence of a fact inissue or is directly relevant to a factin issue; or

(a) the proof that he has committed orbeen convicted of such other offence isadmissible under section 14 or section15 to show that he is guilty of theoffence with which he is then charged;or

(b) he has personally or by his advocateasked questions of a witness for theprosecution with a view to establishinghis own character, or has givenevidence of his own good character; or

(c) the nature or conduct of the defenceis such as to involve imputations onthe character of the complainant or ofa witness for the prosecution; or

(d) he has given evidence against anyother person charged with the sameoffence:Provided that the court may, in its

discretion, direct that specific evidence onthe ground of the exception referred to inparagraph (c) shall not be led if, in theopinion of the court, the prejudicial effectof such evidence upon the person accused willso outweigh the damage done by imputations onthe character of the complainant or of anywitness for the prosecution as to prevent afair trial.

(2) Notwithstanding the provisions ofsubsection (1), evidence of previousconviction for an offence may be given in acriminal trial after conviction of the accused

person, forthe purpose ofaffecting thesentence to beawarded by thecourt.

58. Insections 55,56 and 57 theword“character”includes bothreputation anddisposition;but, except asprovided insection 57,evidence maybe given onlyof generalreputation andgeneraldisposition,and not ofparticularacts by whichreputation ordisposition Good character in criminal cases.Bad character incriminal cases. 10 of 1969, Sch.

Definition of “character” www.kenyalaw.org EvidenceCap 80 [2009] 25

were shown. CHAPTER III - PROOF

Part 1 - Facts Requiring No Proof

59. No fact of which the court shall takejudicial notice need be proved.

60. (1) The courts shall take judicialnotice of the following facts - (a) all written laws, and all laws, rulesand principles, written or unwritten,having the force of law, whether inforce or having such force as aforesaidbefore, at or after the commencement ofthis Act, in any part of Kenya;

(b) the general course of proceedings andprivileges of Parliament, but not thetransactions in their journals;

(c) Articles of War for the Armed Forces;(d) (Deleted by L.N. 22/ 1965).(e) the public seal of Kenya; the sealsof all the courts of Kenya; and allseals which any person is authorized byany written law to use;

(f) the accession to office, names,titles, functions and signatures ofpublic officers, if the fact of theirappointment is notified in the Gazette;

(g) the existence, title and nationalflag of every State and Sovereignrecognized by the Government;

(h) natural and artificial divisions oftime, and geographical divisions of theworld, and public holidays;

(i) the extent of the territoriescomprised in the Commonwealth;

(j) the commencement, continuance andtermination of hostilities betweenKenya and any other State or body of

persons;

(k) thenamesof themembersandofficers ofthecourtand oftheirdeputies,subordinateofficers andassistants,and of

Facts judiciallynoticed.Facts of which court shall takejudicial notice.L.N. 22/1965. www.kenyalaw.org EvidenceCap 80 [2009] 26

all officers acting in execution of its process, and alsoof all advocates and other persons authorized by law toappear or act before it;

(l) the rule of the road on land or at sea or in the air;(m) the ordinary course of nature;(n) the meaning of English words; (o) all matters of general or local notoriety; (p) all other matters of which it is directed by anywritten law to take judicial notice. (2) In all cases within subsection (1), and also on all

matters of public history, literature, science or art, the courtmay resort for its aid to appropriate books or documents ofreference.

(3) If the court is called upon by any person to takejudicial notice of any fact, it may refuse to do so unless anduntil such person produces any such book or document as itconsiders necessary to enable it to do so.

61. No fact need be proved in any civilproceeding which the parties thereto or theiragents agree to admit at the hearing, or whichbefore the hearing they agree, by writingunder their hands, to admit, or which by anyrule of pleading in force at the time they aredeemed to have admitted by their pleadings:

Provided that the court may in itsdiscretion require the facts admitted to beproved otherwise than by such admissions.

Part II - Oral Evidence62. All facts, except the contents of

documents, may be proved by oral evidence.63. (1) Oral evidence must in all cases be

direct evidence. (2) For the purposes of subsection (1),

“direct evidence” means- (a) with reference to a fact which couldbe seen, the evidence of a witness who

says hesaw it;

(b) withreference to afact whichcould beheard, theevidence

Facts admitted in civil proceedings.Oral evidence. Oral evidence must be direct. www.kenyalaw.org EvidenceCap 80 [2009] 27

of a witness who says he heard it; (c) with reference to a fact which could be perceived byany other sense or in any other manner, the evidence of awitness who says he perceived it by that sense or in thatmanner;

(d) with reference to an opinion or to the grounds onwhich that opinion is held, the evidence of the personwho holds that opinion or, as the case maybe, who holdsit on those grounds: Provided that the opinion of an expert expressed in any

treatise commonly offered for sale, and the grounds on whichsuch opinion is held, may be proved by the production of suchtreatise if the author is dead or cannot be found, or has becomeincapable of giving evidence, or cannot be called as a witnesswithout an amount of delay or expense which the court regards asunreasonable.

(3) If oral evidence refers to the existence or condition ofany material thing, other than a document, the court may, if itthinks fit, require the production of such material thing forits inspection.

Part III - Documentary Evidence

64. The contents of documents may beproved either by primary or by secondaryevidence.

65. (1) Primary evidence means thedocument itself produced for the inspection ofthe court.

(2) Where a document is executed inseveral parts, each part is primary evidenceof the document.

(3) Where a document is executed incounterpart, each counterpart being executedby one or some of the parties only, eachcounterpart is primary evidence as against theparties executing it.

(4) Where a number of documents are allmade by one uniform process, as in the case ofprinting, lithography or photography, each isprimary evidence of the contents of the rest;but where they are all copies of a commonoriginal they are not primary evidence of thecontents of the original.

(5) Notwithstanding anything contained inany other law for the time being in force-

(a) a micro-film of a document or thereproduction of the image Proof of contents of documents.Primary evidence. 9 of 2000, s.65. www.kenyalaw.org Evidence Cap 80 [2009] 28

or images embodied in such micro-film; or

(b) a facsimile copy of a document or an image of adocument derived or captured from the original document;or

(c) a statement contained in a document and included inprinted material produced by a computer (hereinafterreferred to as a “computer print-out”)

shall, if the conditions stipulated in subsection (6) of thissection are satisfied, be deemed to also be a document for thepurposes of this Act and shall be admissible in any proceedingswithout further proof of production of the original, as evidenceof any contents of the original or of any facts stated thereinof which direct evidence would be admissible.

(6) The conditions referred to in subsection (5) in respectof a computer print-out shall be the following, namely- (a) the computer print-out containing the statement musthave been produced by the computer during the period inwhich the computer was regularly used to store or processinformation for the purposes of any activities regularlycarried on over that period by a person having lawfulcontrol over the use of the computer;

(b) the computer was, during the period to which theproceedings relate, used in the ordinary course ofbusiness regularly and was supplied with information ofthe kind contained in the document or of the kind fromwhich the information so contained is derived;

(c) the computer was operating properly or, if not, thatany respect in which it was not operating properly wasnot such as to affect the production of the document orthe accuracy of its content;

(d) the information contained in the statement reproducesor is derived from information supplied to the computerin the ordinary course of business. (7) Where, over any period, the function of storing or

processing information for the purposes of any activitiesregularly carried on over that period as mentioned in paragraph(a) of subsection (6) was regularly performed by computers,whether -

(a) by a combination of computers operating over that period; www.kenyalaw.org Evidence Cap 80 [2009] 29

or (b) by different computers operating in succession overthat period; or

(c) by different combinations of computers operating insuccession over that period; or

(d) in any other manner involving the successive operationover that period, in whatever order, of one or morecomputers and one or more combination of computers,

all computers used for that purpose during that period shall betreated for the purposes of this section as constituting asingle computer; and references in this section to a computershall be construed accordingly.

(8) In any proceedings under this Act where it is desired togive a computer print-out or statement in evidence by virtue ofthis section, a certificate doing any of the following things,that is to say- (a) identifying a document containing a print-out orstatement and describing the manner in which it wasproduced;

(b) giving such particulars of any device involved in theproduction of that document as may be appropriate for thepurpose of showing that the document was produce by acomputer;

(c) dealing with any of the matters to which theconditions mentioned in the subsection (6) relate,

which is certified by a person holding a responsible position inrelation to the operation of the relevant device or themanagement of the activities to which the document relates inthe ordinary course of business shall be admissible in evidence.

(9) For the purposes of this section - (a) information shall be deemed to be supplied to acomputer if it is supplied in any appropriate form andwhether it is so supplied directly or (with or withouthuman intervention) by means of any appropriateequipment;

(b) information shall be deemed to be supplied in theordinary course of business if the information wasobtained, received or supplied with a view to it beingprocessed, stored or


retrieved in the ordinary course of business; and (c) a document shall be deemed to have been produced by acomputer whether it was produced by it directly or (withor without human intervention) by means of any otherappropriate equipment connected to such computer. 66. Secondary evidence includes -

(a) certified copies given under the provisionshereinafter contained;

(b) copies made from the original by mechanical processeswhich in themselves ensure the accuracy of the copy, andcopies compared with such copies;

(c) copies made from or compared with the original; (d) counterparts of documents as against the parties whodid not execute them;

(e) oral accounts of the contents of a document given bysome person who has himself seen it.67. Documents must be proved by primary evidence except in

the cases hereinafter mentioned.68. (1) Secondary evidence may be given of the existence,

condition or contents of a document in the following cases- (a) when the original is shown or appears to be in thepossession or power of- (i) the person against whom the document is sought to be

proved; or (ii) a person out of reach of, or not subject to, the

process of the court; or (iii) any person legally bound to produce it, and when, after the notice required by section 69 of

this Act has been given, such person refuses or failsto produce it;

(b) when the existence, condition or contents of theoriginal are proved to be admitted in writing by theperson against whom

Secondary evidence. Proof of documents by primary evidence. Proof of documents by secondary evidence. www.kenyalaw.org Evidence Cap 80 [2009] 31

it is proved, or by his representative in interest; (c) when the original has been destroyed or lost, or whenthe party offering evidence of its contents cannot, forany other reason not arising from his own default orneglect, produce it in a reasonable time;

(d) when the original is of such a nature as not to beeasily movable;

(e) when the original is a public document within themeaning of section 79;

(f) when the original is a document of which a certifiedcopy is permitted by this Act or by any written law to begiven in evidence;

(g) when the original consists of numerous accounts orother documents which cannot conveniently be examined incourt, and the fact to be proved is the general result ofthe whole collection.

(2) (a) In the cases mentioned in paragraphs (a), (c) and(d) of subsection (1), any secondary evidence of thecontents of the document is admissible.

(b) In the case mentioned in subsection (1) (b), thewritten admission is admissible.

(c) In the cases mentioned in paragraphs (e) and (f) ofsubsection (1), a certified copy of the document, but noother kind of secondary evidence, is admissible.

(d) In the case mentioned in subsection (1) (g), evidencemay be given as to the general result of the accounts ordocuments by any person who has examined them, and who isskilled in the examination of such accounts or documents.

69. Secondary evidence of the contents ofthe documents referred to in section 68 (1)(a) shall not be given unless the partyproposing to give such secondary evidence haspreviously given to the party in whosepossession or power the document is, or to hisadvocate, such notice to produce it as isrequired by law or such notice as the courtconsiders reasonable in the circumstances ofthe case:

Provided that such notice shall not berequired in order to render secondary evidenceadmissible in any of the following cases -Notice to produce a document. www.kenyalaw.org Evidence Cap 80 [2009] 32

(i) when the document to be proved is itself a notice; (ii) when from the nature of the case, the adverse party

must know that he will be required to produce it; (iii) when it appears or is proved that the adverse

party has obtained possession of the original by fraudor force;

(iv) when the adverse party or his agent has theoriginal in court;

(v) when the adverse party or his agent has admitted theloss of the document;

(vi) when the person in possession of the document isout of reach of, or not subject to, the process of thecourt;

(vii) in any other case in which the court thinks fit todispense with the requirement.

70. If a document is alleged to be signedor to have been written wholly or in part byany person, the signature or the handwritingof so much of the document as is alleged to bein that person’s handwriting must be proved tobe in his handwriting.

71. If a document is required by law to beattested it shall not be used as evidenceuntil one attesting witness at least has beencalled for the purpose of proving itsexecution, if there is an attesting witnessalive and subject to the process of the courtand capable of giving evidence:

Provided that it shall not be necessary tocall an attesting witness in proof of theexecution of any document which has beenregistered in accordance with the provisionsof any written law, unless its execution bythe person by whom it purports to have beenexecuted is specifically denied.

72. Where evidence is required of adocument which is required by law to beattested, and none of the attesting witnessescan be found, or where such witness isincapable of giving evidence or cannot becalled as a witness without an amount of delayor expense which the court regards asunreasonable, it must be proved that theattestation of one attesting witness at least

is in hishandwriting,and that thesignature ofthe personexecuting thedocument is inthehandwriting ofthat person.Proof of allegation that persons signed or wrote a document.Proof of execution of document required by law to be attested.Proof where no attesting witness found. www.kenyalaw.org EvidenceCap 80 [2009] 33

73. The admission of a party to anattested document, of its execution byhimself, shall be sufficient proof of itsexecution as against him, though it be adocument required by law to be attested.

74. If the attesting witness denies ordoes not recollect the execution of adocument, its execution may be proved by otherevidence.

75. An attested document not required bylaw to be attested may be proved as if it wasunattested.

76. (1) In order to ascertain whether asignature, writing or seal is that of theperson by whom it purports to have beenwritten or made, any signature, writing orseal, admitted or proved to the satisfactionof the court to have been written or made bythat person, may be compared by a witness orby the court with the one which is to beproved, although that signature, writing orseal has not been produced or proved for anyother purpose.

(2) The court may direct any personpresent in court to write any words or figuresfor the purpose of enabling the court tocompare the words or figures so written withany words or figures alleged to have beenwritten by such person.

(3) This section applies with necessarymodifications to finger impressions.

77. (1) In criminal proceedings anydocument purporting to be report under thehand of a Government analyst, medicalpractitioner or of any ballistics expert,document examiner or geologist upon anyperson, matter or thing submitted to him forexamination or analysis may be used inevidence.

(2) The court may presume that thesignature to any such document is genuine andthat the person signing it held the office andqualifications which he professed to hold atthe time when he signed it.

(3) When any report is so used the courtmay, if it thinks fit, summon the analyst,ballistics expert, document examiner, medical

practitioner,or geologist,as the casemay be, andexamine him asto the subjectmatterthereof.

78. (1) Incriminalproceedings acertificate inthe form inthe Scheduleto this Act,given underthe hand of anofficerappointed byorder of theAttorney-General forthe purpose,who shall haveprepared aphotographicprint or aphotographicenlargementfrom exposedfilm submittedto him, shallbe admissible,together withanyphotographic Admission of excution of attested document.Proof where attesting witness denies execution.Proof of document not required to be attested.

Comparison of signatures, seals, etc. Reports by Government analysts and geologists. 14 of 1991, Sch.Photographic evidence- admissibility of certificate.L.N. 22/1965.


prints, photographic enlargements and anyother annex referred to therein, and shall beevidence of all facts stated therein.

(2) The court may presume that thesignature to any such certificate is genuine.

(3) When a certificate is received inevidence under this section the court may, ifit thinks fit, summon and examine the personwho gave it.

Part IV - Public Documents79. (1). The following documents are

public documents - (a) documents forming the acts or records of theacts -

(i) of the sovereign authority; or (ii) of official bodies and tribunals;

or(iii) of public officers, legislative,

judicial or executive, whether ofKenya or of any other country;

(b) public records kept in Kenya of privatedocuments.

(2) All documents other than publicdocuments are private.

80. (1) Every public officer having thecustody of a public document which any personhas a right to inspect shall give that personon demand a copy of it on payment of the legalfees therefor, together with a certificatewritten at the foot of such copy that it is atrue copy of such document or part thereof, asthe case may be, and such certificate shall bedated and subscribed by such officer with hisname and his official title, and shall besealed whenever such officer is authorized bylaw to make use of a seal, and such copies socertified shall be called certified copies.

(2) Any officer who by the ordinary courseof official duty is authorized to deliver

copies ofpublicdocumentsshall bedeemed to havethe custody ofsuch documentswithin themeaning ofthis section.

81.Certifiedcopies ofpublicdocuments maybe produced inproof of thecontents ofthe documentsor parts ofthe documentsof which theypurport to becopies.Distinction between public and private documents. Certified copiesof public documents.Proof by certified copies. www.kenyalaw.org EvidenceCap 80 [2009] 35

82. Without prejudice to any other mode of proof, primafacie evidence of the following public documents may be given inthe manner hereinafter shown, that is to say - (a) (Deleted by L.N. 22/1965). (b) (Deleted by L.N. 22/1965). (c) proceedings of the East Africa Central LegislativeAssembly, or of the legislature of any country in theCommonwealth, by the journals thereof, or, in the case ofsuch Assembly or legislature as aforesaid, by copies ofsuch journals purporting to be printed or published by orunder the authority of such Assembly or legislature, orby or under the authority of the government of any suchcountry;

(d) acts, orders or notifications of the executivegovernment of Kenya, the High Commission or theOrganization or any service, thereof, or any localauthority, or of a ministry or department of any of theforegoing - (i) by the records of the service, ministry or

department certified by the head of the service ordepartment, or, in the case of a ministry, by thepermanent secretary thereof; or

(ii) by any document purporting to be printed orpublished by the Government Printer;

(e) proceedings of any local authority, or of anycorporate body created by Act or Ordinance, by a copy ofthe proceedings certified by the person having the lawfulcustody of the original thereof, or by a public documentpurporting to be printed or published by or by theauthority of such authority or corporate body;

(f) proclamations, treaties and other acts of state of anyforeign country or of any part of the Commonwealth, andjudgments, decrees, orders and other judicial proceedingsof any court of justice in such country or part, and allaffidavits, pleadings and other legal documents filed ordeposited in any such court, by the procedure required bysection 7 of the Evidence Act, 1851, of the UnitedKingdom.

(g) public documents of any other class in a foreigncountry, by the original, or by a copy thereof bearing acertificate under the seal of a notary public or of aKenya consular officer or

Proof of certain public documents.L.N. 22/1965. www.kenyalaw.org Evidence Cap 80 [2009] 36

diplomatic agent that the copy is dulycertified by the officer having thelawful custody of the original thereof,and upon proof of the character of thedocument according to the law of theforeign country.

Part V - Presumptions as to Documents83. (1) The court shall presume to be

genuine every document purporting to be acertificate, certified copy or other documentwhich is - (a) declared by law to be admissible asevidence of any particular fact; and

(b) substantially in the form, andpurporting to be executed in themanner, directed by law in that behalf;and

(c) purporting to be duly certified by apublic officer. (2) The court shall also presume that any

officer by whom any such document purports tobe signed or certified held, when he signedit, the official character which he claims insuch document.

84. Whenever any document is producedbefore any court, purporting to be a record ormemorandum of any evidence given in a judicialproceeding or before any officer authorized bylaw to take such evidence, and purporting tobe signed by a judge or magistrate or any suchofficer as aforesaid, the court shall presume- (a) that the document is genuine; (b) that any statements as to thecircumstances in which it was taken,purporting to be made by the personsigning it, are true; and

(c) that such evidence was duly taken.85. The production of a copy of any

written law, or of a copy of the Gazette

containing anywritten law orany noticepurporting tobe made inpursuance of awritten law,where such lawor notice (asthe case maybe) purportsto be printedby theGovernmentPrinter, shallbe prima facieevidence inall courts andfor allpurposeswhatsoever ofthe due makingand tenor ofsuch writtenlaw or notice.Certified documents.Records of evidence. Gazette, etc., to be prima facie evidence. www.kenyalaw.org EvidenceCap 80 [2009] 37

86. (1) The court shall presume thegenuineness of every document purporting to be- (a) the London Gazette, the EdinburghGazette, or the official Gazette of anycountry in the Commonwealth;

(b) a newspaper or journal;(c) a document directed by any law to bekept by any person, if such document iskept substantially in the form requiredby law and is produced from propercustody. (2) Documents are said to be in proper

custody if they are in the place in which andunder the care of the person with whom theywould naturally be; but no custody is improperif it is proved to have had a legitimateorigin, or if the circumstances of theparticular case are such as to render such anorigin probable.

87. Where any publication or part thereofindicates or purports to indicate the name ofany person by or on behalf or under thesponsorship of whom, or the place at which ordate on which, such publication or any partthereof was edited, printed or published orany part thereof was contributed, it shall, inany proceedings for an offence under anywritten law or for contempt of any court, bepresumed, until the contrary is proved, thatsuch publication or part thereof was edited,printed or published, or that such partthereof was contributed, by or on behalf orunder the sponsorship of such person, or atsuch place or on such date, as the case maybe.

88. When any document is produced beforeany court, purporting to be a document which,by the law in force for the time being inEngland, would be admissible in proof of anyparticular in any Court of Justice in England,without proof of the seal or stamp orsignature authenticating it, or of thejudicial or official character claimed by theperson by whom it purports to be signed - (a) the court shall presume that suchseal, stamp or signature is genuine,

andthatthepersonsigningitheld,at thetimewhen hesignedit, thejudicial orofficialcharacterwhichheclaimsin suchdocument; and

(b) thedocument shallbeadmissible forthesamepurposeforwhichitwouldbeadmissible inEngland.89. (1)

The courtshall presumethat maps orplans

purporting to be made or published by theauthority of the Government, or any departmentof the Government, of any country in theCommonwealth Gazettes, newspapers, and documents produced from proper custody.Publications generally. Documents admissible in England.

Maps or plans. www.kenyalaw.org EvidenceCap 80 [2009] 38

were so made or published and areaccurate.

(2) Maps or plans specially made for thepurposes of any cause or other proceeding,civil or criminal, must be proved to beaccurate.

90. The court shall presume thegenuineness of every book purporting to beprinted or published under the authority ofthe Government of any country and to containany of the laws of that country, and of everybook purporting to contain reports ofdecisions of the courts of any country.

91. The court shall presume that everydocument purporting to be a power of attorney,and to have been executed before andauthenticated by a notary public orcommissioner for oaths or any court, judge,magistrate, or Kenya consular officer ordiplomatic agent, was so executed andauthenticated.

92. The court may presume that anydocument purporting to be a copy of a judgmentor judicial record of any country not formingpart of the Commonwealth is genuine andaccurate, and that such judgment or record waspronounced or recorded by a court of competentjurisdiction, if the document purports to becertified in any manner which is certified bya Kenya consular officer or diplomaticrepresentative in or for such country to bethe manner commonly in use in that country forthe certification of copies of judgments orjudicial records.

93. The court may presume that any book,to which it may refer for information onmatters of public or general interest, andthat any published map or chart, thestatements of which are admissible facts andwhich is produced for its inspection, waswritten and published by the person and at thetime and place by whom or at which it purportsto have been written or published.

94. The court may presume that a messageforwarded from a telegraph office to theperson to whom such message purports to beaddressed, corresponds with a message

delivered fortransmissionat the officefrom which themessagepurports to besent; but thecourt shallnot make anypresumption asto the personby whom suchmessage wasdelivered fortransmission.

95. Thecourt shallpresume thatevery documentcalled for andnot producedafter noticeto produce wasattested,stamped andexecuted inthe mannerrequired bythe law.

96. (1)Where anydocumentpurporting orproved to benot less thantwenty yearsold isproduced fromany custodywhich thecourt in theparticularcase considersproper, thecourt maypresume that

Laws and judicial reports.Powers of attorney. L.N. 22/1965. Certified copies of foreign judicial records. L.N. 22/1965.Books, maps and charts. Telegraphic messages. Presumption as to due execution, etc.

Documents twentyyears old. www.kenyalaw.org EvidenceCap 80 [2009] 39

the signature and every other part of such document, whichpurports to be in the handwriting of any particular person, isin that person’s handwriting, and, in the case of a documentexecuted or attested, that it was duly executed and attested bythe persons by whom it purports to be executed and attested.

(2) Documents are said to be in proper custody if they arein the place in which and under the care of the person with whomthey would naturally be; but no custody is improper if it isproved to have had a legitimate origin, or if the circumstancesof the particular case are such as to render such an originprobable.

Part VI - Exclusion of Oral by Documentary Evidence

97. (1) When the terms of a contract, orof a grant, or of any other disposition ofproperty, have been reduced to the form of adocument, and in all cases in which any matteris required by law to be reduced to the formof a document, no evidence shall be given inproof of the terms of such contract, grant orother disposition of property, or of suchmatter, except the document itself, orsecondary evidence of its contents in cases inwhich secondary evidence is admissible underthe provisions of this Act.

(2) Notwithstanding subsection (1) - (a) wills admitted to probate in Kenyamay be proved by the probate;

(b) when a public officer is required bylaw to be appointed in writing, andwhen it is shown that any particularperson has acted as such officer, thewriting by which he is appointed neednot be proved. (3) Subsection (1) applies equally to

cases in which contracts, grants ordispositions of property referred to arecontained in one document, and to cases inwhich they are contained in more documentsthan one.

(4) Where there are more originals thanone, one original only need be proved.

(5) The statement, in any documentwhatever, of a fact other than the facts

referred to insubsection(1), shall notpreclude theadmission oforal evidenceas to the samefact.

98. Whenthe terms ofany contractor grant orotherdisposition ofproperty, orany matterrequired bylaw to bereduced to theform of

Written contracts and grants. Evidence of oralagreement. www.kenyalaw.org EvidenceCap 80 [2009] 40

a document, have been proved according to section 97, noevidence of any oral agreement or statement shall be admitted asbetween the parties to any such instrument or theirrepresentatives in interest for the purpose of contradicting,varying, adding to or subtracting from its terms:

Provided that - (i) any fact may be proved which would invalidate any

document, or which would entitle any person to anydecree or order relating thereto; such as fraud,intimidation, illegality, want of due execution, wantof capacity in any contracting party, want or failureof consideration, or mistake in fact or law;

(ii) the existence of any separate oral agreement as toany matter on which a document is silent, and which isnot inconsistent with its terms, may be proved, and inconsidering whether or not this paragraph of thisproviso applies, the court shall have regard to thedegree of formality of the document;

(iii) the existence of any separate oral agreementconstituting a condition precedent to the attaching ofany obligation under any such contract, grant ordisposition of property may be proved;

(iv) the existence of any distinct subsequent oralagreement to rescind or modify any such contract,grant or disposition of property may be proved, exceptin cases in which such contract, grant or dispositionof property is by law required to be in writing, orhas been registered according to the law in force forthe time being as to the registration of suchdocuments;

(v) any usage or custom by which incidents not expresslymentioned in any contract are usually annexed to con-tracts of that description may be proved, if theannexing of such incident would not be repugnant to,or inconsistent with, the express terms of thecontract;

(vi) any fact may be proved which shows in what mannerthe language of a document is related to existingfacts.

99. When the language used in a documentis on the face of it ambiguous or defective,evidence may not be given of facts which wouldshow its meaning or supply its defects.

Evidence to explain a patent ambiguity.


100. When language used in a document isplain, and when it applies accurately toexisting facts, evidence may not be given toshow that it was not meant to apply to suchfacts.

101. When language used in a document isplain, but is unmeaning in reference toexisting facts, evidence may be given to showthat it was used in a peculiar sense.

102. When the facts are such that thelanguage used in a document might have beenmeant to apply to any one, and could not havebeen meant to apply to more than one ofseveral persons or things, evidence may begiven of facts which show to which of thosepersons or things it was intended to apply.

103. When the language used in a documentapplies partly to one set of existing facts,and partly to another, but the whole of itdoes not apply correctly to either, evidencemay be given to show to which of the two itwas meant to apply.

104. Evidence may be given to show themeaning of illegible or not commonlyintelligible characters, of foreign, obsolete,technical, local and provincial expressions,of abbreviations and of words used in apeculiar sense.

105. Persons who are not parties to adocument, or their representatives ininterest, may give evidence of any factstending to show a contemporaneous agreementvarying the terms of the document.

106. Nothing in this Part shall affect thelaw relating to the interpretation andconstruction of wills or other testamentarydispositions.

Part VII – Electronic Records106A. The contents of electronic records

may be proved in accordance with theprovisions of section 106B.

106B. (1) Notwithstanding anythingcontained in this Act, any informationcontained in an electronic record which isprinted on a paper, stored, recorded or copiedon optical or electro-magnetic media producedby a computer (herein referred to as computer

output) shallbe deemed tobe also adocument, ifthe conditionsmentioned inthis sectionare satisfiedin relation totheinformationand computerin questionand shall beadmissible inanyproceedings,withoutfurther proofor productionof theoriginal, asevidence ofany contentsof the Evidence to showinapplicability.

Evidence to explain a latentambiguity. Evidence of application to one of several subjects. Evidence of application to one of several sets of facts. Evidence to explain special words. Evidence of variation given by third parties.

Wills.

1 of 2009.

Section 106B to apply in proof of electronic recordsAdmissibility of electronic records.


original or of any fact stated therein where direct evidencewould be admissible.

(2) The conditions mentioned in subsection (1), in respectof a computer output, are the following-

(a) the computer output containing the information wasproduced by the computer during the period over which thecomputer was used to store or process information for anyactivities regularly carried out over that period by a personhaving lawful control over the use of the computer;

(b) during the said period, information of the kindcontained in the electronic record or of the kind from which theinformation so contained is derived was regularly fed into thecomputer in the ordinary course of the said activities;

(c) throughout the material part of the said period, thecomputer was operating properly or, if not, then in respect ofany period in which it was not operating properly or was out ofoperation during that part of the period, was not such as toaffect the electronic record or the accuracy of its content; and

(d) the information contained in the electronic recordreproduces or is derived from such information fed into thecomputer in the ordinary course of the said activities.

(3) Where over any period, the function of storing orprocessing information for the purposes of any activitiesregularly carried on over that period as mentioned in paragraph(a) of sub-section (2) was regularly performed by computers,whether-

(a) by a combination of computers operating in successionover that period; or

(b) by different computers operating in succession overthat period; or

(c) in any manner involving the successive operation overthat period, in whatever order, of one or more computersand one or more combinations of computers,

then all computers used for that purpose during that periodshall be treated for the purposes of this section to constitutea single computer and references in this section to a computershall be construed accordingly.

(4) In any proceedings where it is desired to give astatement in evidence by virtue of this section, a certificatedoing any of the following- www.kenyalaw.org Evidence Cap 80 [2009] 43

(a) identifying the electronic record containing thestatement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in theproduction of that electronic record as may be appropriate forthe purpose of showing that the electronic record was producedby a computer;

(c) dealing with any matters to which conditions mentionedin sub-section (2) relate; and

(d) purporting to be signed by a person occupying aresponsible position in relation to the operation of therelevant device or the management of the relevant activities(whichever is appropriate),

shall be evidence of any matter stated in the certificateand for the purpose of this sub-section it shall be sufficientfor a matter to be stated to the best of the knowledge of theperson stating it.

(5) For the purpose of this section, information is suppliedto a computer if it is supplied thereto in any appropriate formand whether it is so supplied directly or (with or without humanintervention) by means of an appropriate equipment, whether inthe course of activities carried on by any official, informationis supplied with a view to its being stored or processed for thepurpose of those activities, that information, if duly suppliedto that computer, shall be taken to be supplied to it in thecourse of those activities.

106C. Except in the case of a securesignature, if the electronic signature of anysubscriber is alleged to have been affixed toan electronic record, then the fact that suchan electronic signature is the electronicsignature of the subscriber must be proved.

106D. In order to ascertain whether anelectronic signature is that of the person bywhom it purports to have been affixed, thecourt may direct:-

(a) that person or the certificationservice provider to produce theelectronic signature certificate;or

(b) any other person to apply theprocedure listed in the electronicsignature certificate and verifythe electronic signature purportedto have been affixed by thatperson.

106E. A court shall take recognizance ofevery electronic record purporting to be theofficial Gazette, or purporting to beelectronic record directed by any law to bekept by any person, if such electronic record

is keptsubstantiallyin the formrequired bylaw and isproduced fromits propercustody.Proof as to a electronic signature.

Proof as to the verification of electronic signature.

Presumption as to Gazette in electronic form.www.kenyalaw.org EvidenceCap 80 [2009] 44

106F. A court shall presume that everyelectronic record purporting to be anagreement containing the electronic signaturesof the parties was concluded by affixing thedigital signature of the parties.

106G. (1) In any proceedings involving asecure electronic record, the court shallpresume, unless the contrary is proved, thatthe secure electronic record has not beenaltered since the specific point of time thesecure electronic signature was affixed.

(2) In any proceedings involving secureelectronic signature, the court shall presume,unless the contrary is proved, that the securesignature is affixed by the subscriber withthe intention of signing or approving theelectronic record;

(3) except in the case of a secureelectronic or a secure digital signature,nothing in this section shall create anypresumption relating to authenticity andintegrity of the electronic record or anydigital signature.

106H. A court shall presume, unless thecontrary is proved, that the informationlisted in an electronic signature certificateis correct, except for information, which hasnot been verified, if the certificate wasaccepted by the subscriber.

106I. A court may presume that anelectronic message forwarded by the originatorthrough an electronic mail server to theaddressee to whom the message purports to beaddressed corresponds with the message as fedinto his computer for transmission, but thecourt shall not make any presumption as to theperson by whom such a message was sent.

CHAPTER IV- PRODUCTIONANDEFFECT OF EVIDENCE

Part 1 - Burden of Proof107. (1) Whoever desires any court to give

judgment as to any legal right or liability

dependent onthe existenceof facts whichhe assertsmust provethat thosefacts exist.

(2) When aperson isbound to provethe existenceof any fact itis said thatthe burden ofproof lies onthat person.

108. Theburden ofproof in asuit orproceedinglies on thatperson whowould fail ifno evidence atall were givenon eitherside.

Presumption as to electronic agreements.Presumption as to electronic records and electronic signatures.

Presumption as to electronic signature certificates.

Presumption as to electronic messages.

Burden of proof.

Incidence of burden. www.kenyalaw.org Evidence Cap 80 [2009] 45

109. The burden of proof as to anyparticular fact lies on the person who wishesthe court to believe in its existence, unlessit is provided by any law that the proof ofthat fact shall lie on any particular person.

110. The burden of proving any factnecessary to be proved in order to enable anyperson to give evidence of any other fact ison the person who wishes to give suchevidence.

111. (1) When a person is accused of anyoffence, the burden of proving the existenceof circumstances bringing the case within anyexception or exemption from, or qualificationto, the operation of the law creating theoffence with which he is charged and theburden of proving any fact especially withinthe knowledge of such person is upon him:

Provided that such burden shall be deemedto be discharged if the court is satisfied byevidence given by the prosecution, whether incross-examination or otherwise, that suchcircumstances or facts exist:

Provided further that the person accusedshall be entitled to be acquitted of theoffence with which he is charged if the courtis satisfied that the evidence given by eitherthe prosecution or the defence creates areasonable doubt as to the guilt of theaccused person in respect of that offence.

(2) Nothing in this section shall - (a) prejudice or diminish in any respectthe obligation to establish by evidenceaccording to law any acts, omissions orintentions which are legally necessaryto constitute the offence with whichthe person accused is charged; or

(b) impose on the prosecution the burdenof proving that the circumstances orfacts described in subsection (1) donot exist; or

(c) affect the burden placed upon anaccused person to prove a defence ofintoxication or insanity.

112. Incivilproceedings,when any factis especiallywithin theknowledge ofany party tothoseproceedings,the burden ofproving ordisprovingthat fact isupon him.

113.(Repealed by 14 of1972, 9th Sch.)

114.(Repealed by 14 of1972, 9th Sch.)

Proof of particular fact.

Proof of admissibility.

Burden on accused in certain cases.

Proof of specialknowledge in civil proceedings. www.kenyalaw.org EvidenceCap 80 [2009] 46

115. When the question is whether personsare partners, landlord and tenant, orprincipal and agent, and it has been shownthat they have been acting as such, the burdenof proving that they do not stand, or haveceased to stand, to each other in thoserelationships respectively, is on the personwho affirms it.

116. When the question is whether anyperson is owner of anything of which he isshown to be in possession, the burden ofproving that he is not the owner is on theperson who affirms that he is not the owner.

117. Where there is a question as to thegood faith of a transaction between parties,one of whom stands to the other in a positionof active confidence, the burden of provingthe good faith of the transaction is on theparty who is in a position of activeconfidence.

118. The fact that any person was bornduring the continuance of a valid marriagebetween his mother and any man, or within twohundred and eighty days after its dissolution,the mother remaining unmarried, shall beconclusive proof that he is the legitimate sonof that man, unless it can be shown that theparties to the marriage had no access to eachother at any time when he could have beenbegotten.

118A. Where it is proved that a person hasnot been heard of for seven years by those whomight be expected to have heard of him if hewere alive, there shall be a rebuttablepresumption that he is dead.

119. The court may presume the existenceof any fact which it thinks likely to havehappened, regard being had to the commoncourse of natural events, human conduct andpublic and private business, in their relationto the facts of the particular case.

Part II - Estoppel120. When one person has, by his

declaration, act or omission, intentionallycaused or permitted another person to believea thing to be true and to act upon suchbelief, neither he nor his representative

shall beallowed, inany suit orproceedingbetweenhimself andsuch person orhisrepresentative, to deny thetruth of thatthing.

121. Notenant ofimmovableproperty, orpersonclaimingthrough suchtenant, shall,during thecontinuance ofthe tenancy,be permittedto deny thatthe landlordof such tenanthad at thebeginning ofthe tenancy atitle to suchimmovableproperty; andno person whocame upon anyimmovableproperty bythe license ofthe person inpossessionthereof shallbe permittedto deny thatsuch personhad a

Disproving apparent special relationship. Disproving ownership.Proof of good faith.Conclusive proof of legitimacy. Presumption of death. 14 of 1972, 9th Sch.Presumption of likely facts. General estoppel.

Estoppel of tenant or licensee. www.kenyalaw.org EvidenceCap 80 [2009] 47

right to such possession at the time whenthe license was given.

122. No acceptor of a bill of exchangeshall be permitted to deny that the drawer hadauthority to draw such bill or to endorse it:

Provided that the acceptor of a bill ofexchange may deny that the bill was in factdrawn or endorsed by the person by whom itpurports to have been drawn or endorsed.

123. No bailee, agent or licensee shall bepermitted to deny that the bailor, principalor licensor, by whom any goods were entrustedto any of them respectively, was entitled tothose goods at the time when they were soentrusted:

Provided that any such bailee, agent orlicensee may show that he was compelled todeliver up any such goods to some person, whohad a right to them as against his bailor,principal or licensor, or that his bailor,principal or licensor, wrongfully, and withoutnotice to the bailee, agent or licensee,obtained the goods from a third person who hasclaimed them from such bailee, agent orlicensee.

Part III - Evidence of Children124. Notwithstanding the provisions of

section 19 of the Oaths and StatutoryDeclarations Act, where the evidence ofalleged victim admitted in accordance withthat section on behalf of the prosecution inproceedings against any person for an offence,the accused shall not be liable to beconvicted on such evidence unless it iscorroborated by other material evidence insupport thereof implicating him.

Provided that where in a criminal caseinvolving a sexual offence the only evidenceis that of the alleged victim of the offence,the court shall receive the evidence of thealleged victim and proceed to convict theaccused person if, for reasons to be recordedin the proceedings, the court is satisfiedthat the alleged victim is telling the truth.

CHAPTER V- WitnessesPart 1 - Competency of Witnesses

125. (1)All personsshall becompetent totestify unlessthe courtconsiders thatthey areprevented fromunderstandingthe questionsput to them,or from givingrationalanswers tothosequestions, bytender years,extreme oldage, disease(whether ofbody or mind)or any similarcause.

(2) Amentallydisorderedperson or alunatic is notincompetent Estoppel of acceptor of a bill of exchange. Estoppel of a bailee, licenseeor agent. Corroboration required in criminal cases. Cap. 15. 5 of 2003, 3 of 2006.

Competency generally.

to testify unless he is prevented by his condition fromunderstanding the questions put to him and giving rationalanswers to them.

126. (1) A witness who is unable to speak may give hisevidence in any other manner in which he can make itintelligible, as, for example, by writing or by signs; but suchwriting must be written, and the signs made, in open court.

(2) Evidence so given shall be deemed to be oral evidence.127. (1) In civil proceedings the parties to the suit, and

the husband or wife of any party to the suit, shall be competentwitnesses.

(2) In criminal proceedings every person charged with anoffence, and the wife or husband of the person charged, shall bea competent witness for the defence at every stage of theproceedings, whether such person is charged alone or jointlywith any other person:

Provided that - (i) the person charged shall not be called as a witness

except upon his own application; (ii) save as provided in subsection (3), the wife or

husband of the person charged shall not be called as awitness except upon the application of the personcharged;

(iii) the failure of the person charged (or of the wifeor husband of that person) to give evidence shall notbe made the subject of any comment by the prosecution.

(3) In criminal proceedings the wife or husband of theperson charged shall be a competent and compellable witness forthe prosecution or defence without the consent of such person,in any case where such person is charged - (a) with the offence of bigamy; or (b) with offences under the Sexual Offences Act; or (c) in respect of an act or omission affecting the personor property of the wife or husband of such person or thechildren of either of them, and not otherwise. (4) In this section “husband” and “wife” mean respectively

the husband and wife of a marriage, whether or not monogamous,which is by law binding during the lifetime of both partiesunless dissolved Dumb witnesses.

Competency of parties and spouses.3 of 2006. www.kenyalaw.org Evidence Cap 80 [2009] 49

according to law, and includes a marriageunder native or tribal custom.

Part II - Compellability and Privileges of Witnesses128. A witness shall not be excused from

answering any question as to any matterrelevant to the matter in issue in any suit orin any civil or criminal proceeding, upon theground that the answer to such question willincriminate, or may tend directly orindirectly to incriminate, such witness, orthat it will expose, or tend directly orindirectly to expose, such witness to apenalty or forfeiture of any kind, but no suchanswer which a witness is compelled to giveshall subject him to any arrest orprosecution, or be proved against him in anycriminal proceeding, except a prosecution forgiving false evidence by such answer.

129. No judge or magistrate shall, exceptupon the special order of some court to whichhe is subordinate, be compelled to answer anyquestions as to his own conduct in court assuch judge or magistrate, or as to anythingwhich came to his knowledge in court as suchjudge or magistrate, but he may be examined asto other matters which occurred in hispresence whilst he was so acting.

130. (1) No person shall be compelled todisclose any communication made to him or herduring marriage, by the other spouse; norshall a person be permitted to disclose suchcommunication without the consent of theperson who made it, or of his or herrepresentative in interest, except in suitsbetween the parties to the marriage or in anyof the cases referred to in paragraphs (a),(b) and (c) of section 127 (3).

(2) In this section “marriage” means amarriage, whether or not monogamous, which isby law binding during the lifetime of theparties thereto unless dissolved according tolaw and includes a marriage under native ortribal custom.

131. Whenever it is stated on oath(whether by affidavit or otherwise) by aMinister that he has examined the contents ofany document forming part of any unpublished

officialrecords, theproduction ofwhich documenthas beencalled for inanyproceedings,and that he isof the opinionthat suchproductionwould beprejudicial tothe publicservice,either byreason of thecontentthereof or ofthe fact thatit belongs toa class which,on grounds ofpublic policy,should bewithheld fromsuchproduction,the documentshall not beadmissible.

132. Nopublic officershall becompelled todisclosecommunicationsmade by anyperson to himin the courseof his duty,when heconsiders that

the public interest would suffer by thedisclosure.

Compellability of ordinary witnesses. Privilege of court. Communications during marriage. Privilege relating to official records. 10 of 1969, Sch.

Privilege of official communications. 13 of l972, Sch.www.kenyalaw.org EvidenceCap 80 [2009] 50

133. (1) No judge, magistrate or policeofficer shall be compelled to say whence hegot any information as to the commission ofany offence, and no revenue officer shall becompelled to say whence he got any informationas to the commission of any offence againstthe law relating to the public revenue or toincome tax, customs or excise.

(2) For the purposes of this section,“revenue officer” means any officer employedin or about the business of any branch of thepublic revenue, including any branch of theincome tax, customs or excise departments.

134. (1) No advocate shall at any time bepermitted, unless with his client’s expressconsent, to disclose any communication made tohim in the course and for the purpose of hisemployment as such advocate, by or on behalfof his client, or to state the contents orcondition of any document with which he hasbecome acquainted in the course and for thepurpose of his professional employment, or todisclose any advice given by him to his clientin the course and for the purpose of suchemployment:

Provided that nothing in this sectionshall protect from disclosure- (a) any communication made in furtheranceof any illegal purpose;

(b) any fact observed by any advocate inthe course of his employment as such,showing that any crime or fraud hasbeen committed since the commencementof his employment, whether theattention of such advocate was or wasnot directed to the fact by or onbehalf of his client. (2) The protection given by subsection (1)

shall continue after the employment of theadvocate has ceased.

135. The provisions of section 134 shallapply to interpreters, and the clerks orservants of advocates.

136. (1) If any party to a suit orproceeding gives evidence therein at his owninstance or otherwise, he shall not be deemedto have consented thereby to such disclosure

as ismentioned insection 134(1).

(2) If anyparty to asuit orproceedingcalls anyadvocate, Privilege relating to information of commission of offences.Privilege of advocates.Privilege of interpreters, and advocates’ clerks and servants.Waiving of privilege of advocates, etc. www.kenyalaw.org EvidenceCap 80 [2009] 51

interpreter, clerk or servant as awitness, he shall be deemed to have consentedto such disclosure as is mentioned in section134 (1) only if he questions such witness onmatters which, but for such question, thewitness would not be at liberty to disclose.

137. No one shall be compelled to discloseto the court any confidential communicationwhich has taken place between him and hisadvocate unless he offers himself as awitness, in which case he may be compelled todisclose any such communications as may appearto the court necessary to be known in order toexplain any evidence which he has given, butno others.

138. No witness who is not a party to thesuit shall be compelled to produce his titledeeds to any property, or any document invirtue of which he holds any property aspledgee or mortgagee, or any document theproduction of which might tend to incriminatehim, unless he has agreed in writing with theperson seeking the production of such deeds ordocument, or with some person through whom heclaims, to produce them.

139. No one shall be compelled to producedocuments in his possession, which any otherperson would be entitled to refuse to produceif they were in his possession, unless suchother person consents to their production.

140. (1) A bank, or officer of a bank,shall not, in any legal proceedings to whichthe bank is not a party, be compelled toproduce any banker’s book the contents ofwhich can be proved under the provisions ofChapter VII.

(2) No bank or officer of a bank shall besummoned or called as a witness to prove anymatters, transactions or accounts recorded ina banker’s book except by order of a judge ormagistrate made for special cause.

141. An accomplice shall be a competentwitness against an accused person; and aconviction shall not be illegal merely becauseit proceeds upon the uncorroborated evidenceof an accomplice.

142. Noperson who isentitled torefuse toproduce adocument shallbe compelledto give oralevidence ofits contents.

143. Noparticularnumber ofwitnessesshall, in theabsence of anyprovision oflaw to thecontrary, berequired forthe proof ofany fact.Communications with an advocate.

Title deeds and incriminating documents in hands of third party. Privileged document in possession of another. Bankers’ books. Accomplices.Privileges to exclude oral evidence of documents.Number of witnesses. www.kenyalaw.org EvidenceCap 80 [2009] 52

Part III - Examination of witnesses

144. (1) When either party proposes togive evidence of any fact, the court may askthe party proposing to give the evidence inwhat manner the alleged fact, if proved, wouldbe admissible.

(2) The court shall admit the evidence ofany fact if it thinks that the fact, ifproved, would be admissible and not otherwise.

(3) If the fact proposed to be proved isone of which evidence is admissible only uponproof of some other fact, such last mentionedfact must be proved before evidence is givenof the fact first mentioned, unless the partyundertakes to give proof of such fact and thecourt is satisfied with such undertaking.

(4) If the admissibility of one allegedfact depends upon another alleged fact beingfirst proved, the court may, in itsdiscretion, either permit evidence of thefirst fact to be given before the second factis proved, or require evidence to be given ofthe second fact before evidence is given ofthe first fact.

145. (1) The examination of a witness bythe party who calls him shall be called hisexamination-in-chief.

(2) The examination of a witness by theadverse party shall be called his cross-examination.

(3) Where a witness has been cross-examined and is then examined by the party whocalled him, such examination shall be calledhis re-examination.

146. (1) Witnesses shall first beexamined-in-chief, then, if the adverse partyso desires, cross-examined, then, if the partycalling them so desires, re-examined.

(2) Subject to the following provisions ofthis Act, the examination-in-chief and cross-examination must relate to relevant facts, butthe cross-examination need not be confined tothe facts to which the witness testified inhis examination-in-chief.

(3) The re-examination shall be directedto the explanation of matters referred to in

cross-examination;and, if newmatter is, bypermission ofthe court,introduced inre-examination,the adverseparty mayfurther cross-examine uponthat matter.

(4) Thecourt may inall casespermit awitness to berecalledeither forfurtherexamination-in-chief orfor furthercross-examination,and

Court to decide as to the admissibility ofevidence. Types of examination of witnesses. Order and direction of examinations. www.kenyalaw.org EvidenceCap 80 [2009] 53

if it does so, the parties have the rightof further cross-examination and re-examination respectively.

Part IV - Questioning of Witnesses147. A person called to produce a document

does not become a witness by the mere factthat he produces it, and cannot be cross-examined unless and until he is called as awitness.

148. A witness to character may be cross-examined and re-examined.

149. Any question suggesting the answerwhich the person putting it wishes or expectsto receive, or suggesting a disputed fact asto which the witness is to testify, is aleading question.

150. (1) Leading questions must not, ifobjected to by the adverse party, be asked inan examination-in-chief or in a re-examination, except with the permission of thecourt.

(2) The court shall permit leadingquestions as to matters which are introductoryor undisputed, or which have in its opinionbeen already sufficiently proved.

151. Leading questions may be asked incross-examination.

152. Any witness may be asked, whilstunder examination, whether any contract orgrant or other disposition of property as towhich he is giving evidence was not containedin a document, but if he says that it was, orif he is about to make any statement as to thecontents of any document which in the opinionof the court, ought to be produced, theadverse party may object to such evidencebeing given until such document is produced,or until facts have been proved which entitlethe party who called the witness to givesecondary evidence of it.

153. A witness may be cross-examined as toprevious statements made by him in writing orreduced into writing, and relevant to mattersin question, without such writing being shownto him or being proved, but if it is intendedto contradict a witness by a previous writtenstatement, his attention must, before the

writing can beproved, becalled tothose parts ofit which areto be used forthe purpose ofcontradictinghim.

154. Whena witness iscross-examinedhe may, inaddition tothe questionshereinbeforereferred to,be asked anyquestionswhich tend - Person called toproduce a document.

Witness to character. Meaning of leading question.Leading questions in examination-in chief and re-examination.

Leading questions in cross- examination.Examination as to whether certain formal matters are contained in writing. Document.

Cross- examination as to previous written statements.Cross- examination as to credibility. www.kenyalaw.org Evidence Cap 80 [2009] 54

(a) to test his accuracy, veracity or credibility;(b) to discover who he is and what is his position in life;

(c) to shake his credit, by injuring his character,although the answer to such questions might tend directlyor indirectly to incriminate him or might expose or tenddirectly or indirectly to expose him to a penalty orforfeiture.

155. If any question asked under section154 (c) for the purpose of affecting thecredit of the witness relates to a matterrelevant to the suit or proceeding, theprovisions of section 128 shall apply thereto.

156. A person charged with an offence andcalled as a witness for the defence may beasked any question in cross-examinationnotwithstanding that the answer may tend toincriminate him as to the offence charged.

157. (1) If any question asked relates toa matter not relevant to the suit orproceeding except in so far as it affects thecredit of the witness by injuring hischaracter, the court shall decide whether ornot the witness shall be compelled to answerit, and may, if it does not so compel him,warn the witness that he is not obliged toanswer.

(2) In exercising its discretion underthis section, the court shall have regard tothe following considerations - (a) such questions are proper if they areof such a nature that the truth of theimputation conveyed by them wouldseriously affect the opinion of thecourt as to the credibility of thewitness on the matter to which hetestifies;

(b) such questions are improper if theimputation which they convey relates tomatters so remote in time, or of such acharacter, that the truth of theimputation would not affect, or wouldaffect in a slight degree, the opinionof the court as to the credibility ofthe witness on the matter to which hetestifies;

(c) such questions are improper if thereis a great disproportion between theimportance of the imputation made

againstthewitness’scharacter andtheimportance ofhisevidence. (3) The

court may, ifit sees fit,draw from thewitness’srefusal toanswer, theinference thatthe answer, ifgiven, wouldbeunfavourableto thewitness.Compulsion to answer questionsas to credit.Cross- examination of accused person. Discretion of court to compel witness to answer question as to credit. www.kenyalaw.org EvidenceCap 80 [2009] 55

158. No such question as is referred to insection 157 ought to be asked unless theperson asking it has reasonable grounds forthinking that the imputation which it conveysis well founded.

159. The court may forbid any questions orinquiries which it regards as indecent orscandalous, although such questions orinquiries may have some bearing on thequestions before the court, unless they relateto facts in issue or to matters necessary tobe known in order to determine whether or notthe facts in issue existed.

160. The court shall forbid any questionwhich appears to it to be intended to insultor annoy, or which, though proper in itself,appears to the court needlessly offensive inform.

161. The court may, in its discretion,permit the person who calls a witness to putany questions to him which might be put incross-examination by the adverse party.

162. When a witness has been asked and hasanswered any question which is relevant to theproceedings only in so far as it tends toshake his credit by injuring his character, noevidence shall be given to contradict him butif he answers falsely he may afterwards becharged with giving false evidence:

Provided that - (i) if a witness is asked whether he

has been previously convicted of anycrime and denies it, evidence may begiven of his previous conviction;

(ii) if a witness is asked any questiontending to impeach his impartialityand answers it by denying the factssuggested, evidence may be given ofthe facts.

163. (1) The credit of a witness may beimpeached in the following ways by the adverseparty, or, with the consent of the court, bythe party who calls him - (a) by the evidence of persons whotestify that they, from their knowledgeof the witness, believe him to beunworthy of credit;

(b) byproofthatthewitnesshasbeenbribed,or hasaccepted theofferof abribe,or hasreceived anyothercorruptinducement togivehisevidence;

(c) by proof offormerstatements,whetherwritten ororal, Necessity for grounds before attacking character.Indecent or scandalous questions. Insulting or annoying questions.Discretion to allow cross-examination of own witness.

Exclusion of evidence to contradict a witness.Evidence to impeach the credit of a witness. www.kenyalaw.org Evidence Cap 80 [2009] 56

inconsistent with any part of hisevidence which is liable to becontradicted;

(d) when a man is prosecuted for rape oran attempt to commit rape, it may beshown that the prosecutrix was ofgenerally immoral character. (2) A person who, called as a witness

pursuant to sub-section (1) (a), declaresanother witness to be unworthy of credit maynot, upon his examination-in-chief, givereasons for his belief, but he may be askedhis reasons in cross-examination and theanswers which he gives cannot be contradicted,though, if they are false, he may afterwardsbe charged with giving false evidence.

164. When a witness the truthfulness ofwhose evidence it is intended to confirm givesevidence of any fact, he may be questioned asto any other circumstances which he observedat or near the time or place at which the factoccurred, if the court is of opinion that suchcircumstances, if proved, would tend toconfirm the testimony of the witness as to thefact to which he testifies.

165. In order to show that the testimonyof a witness is consistent any formerstatement made by such witness, whetherwritten or oral, relating to the same fact ator about the time when the fact took place, orbefore any authority legally competent toinvestigate the fact, may be proved.

166. Whenever any statement admissibleunder section 33 or section 34 is proved, allmatters which might have been proved if thatperson had been called as a witness and haddenied upon cross-examination the truth of thematter suggested, may be proved either tocontradict or to show consistency, or in orderto impeach or confirm the credit of the personby whom it was made.

Part V - Refreshing of Memory and Production of Documents

167. (1) A witness may, while underexamination, refresh his memory by referringto any writing made by himself at the time ofthe transaction concerning which he is

questioned, ormade so soonafterwardsthat the courtconsiders itlikely thatthetransactionwas at thattime fresh inhis memory.

(2) Awitness may,while underexamination,refresh hismemory byreferring toany writingmade by anyother personand read bythe witnesswithin thetime mentionedin sub-section(1), if whenhe read it heknew it to becorrect. Circumstantial questions to confirm evidence.Proof of consistency by former statements.Evidence to teststatement of person not available as witness. Refreshing memory by reference to contemporaneous writing.

(3) Whenever a witness may refresh hismemory by reference to any writing, he may,with the permission of the court, refer to acopy of such writing, if the court issatisfied that there is sufficient reason forthe non-production of the original.

(4) An expert may refresh his memory byreference to professional treatises.

168. A witness may testify to factsmentioned in any such writing as is referredto in section 167 although he has no specificrecollection of the facts themselves, if he issure that the facts were correctly recorded inthe document.

169. Any writing referred to in section167 or section 168 shall be produced and shownto the adverse party if he requires it, andsuch party may, if he pleases, cross-examinethe witness thereupon.

170. (1) A witness summoned to produce adocument shall, if it is in his possession orpower, bring it to court notwithstanding anyobjection which there may be to its productionor to its admissibility, but the validity ofany such objection shall be tried by thecourt. (2) (a) The court, if it sees fit, mayinspect the document, unless it is adocument to which the provisions ofsection 131 are applied, or take otherevidence to enable it to determine onits admissibility.

(b) If for such purpose it is necessaryto cause any document to be translated,the court may, if it thinks fit, directthe translator to keep the contentssecret, unless the document is to begiven in evidence.171. When a party calls for a document

which he has given the other party notice toproduce, and such document is produced andinspected by the party calling for itsproduction, he is bound to give it as evidenceif the party producing it requires him to doso and if it is admissible.

172. When a party refuses to produce adocument for which he has had notice to

produce, hecannotafterwards usethe documentas evidencewithout theconsent of theother party orthe order ofthe court.

173. (1) Ajudge ormagistratemay, in orderto discover orto obtainproperevidence, askany questionhe pleases, inany form, at Reference to accurate contemporaneous record though facts themselvesnot specificallyrecalled.Rights of adverse party asto contemporaneous writing. Production of documents of doubtful admissibility. Document produced in answer to noticeto be given as evidence if required.Consequence of refusal to produce document in answer to notice.

Extendedpowers of court for purpose of obtaining www.kenyalaw.org Evidence Cap 80 [2009] 58

any time, of any witness, or of the parties, about any factwhether or not it is otherwise admissible; and may order theproduction of any document or thing; and neither the parties northeir agents shall be entitled to object to any such question ororder, nor, without leave of the court, to cross-examine thewitness upon any answer given in reply to any such question:

Provided that judgment shall be based only upon facts whichare otherwise admissible and which have been duly proved.

(2) Subsection (1) shall not authorize a judge or magistrate- (a) to compel a witness to answer any question or toproduce any document which such witness would be entitledto refuse to answer or produce under the provisions ofPart II, if the question were asked or the document wascalled for by the adverse party; nor

(b) to ask any question which it would be improper for anyother person to ask under section 157 or 158; nor

(c) to dispense with the primary evidence of any document,except in the cases excepted by the provisions of thisAct.

Part VI - Questions by Assessors174. (Repealed by 7 of 2007.)

CHAPTER VI - IMPROPER ADMISSIONANDREJECTIONOF EVIDENCE175. The improper admission or rejection of evidence shall

not of itself be ground for a new trial or for reversal of anydecision in a case if it shall appear to the court before whichthe objection is taken that, independently of the evidenceobjected to and admitted, there was sufficient evidence tojustify the decision, or that if the rejected evidence had beenreceived it ought not to have varied the decision.

CHAPTER VII - BANKERS’ BOOKS176. Subject to this Chapter a copy of any entry in a

banker’s book shall in all legal proceedings be received asprima facie evidence of such entry, and of the matters,transaction and accounts therein recorded.proper evidence.Effect of improper admission or rejection. Mode of proof of entries in bankers’ books. www.kenyalaw.org Evidence Cap 80 [2009] 59

177. (1) A copy of an entry in a banker’sbook shall not be received in evidence undersection 176 unless it be first proved that -(a) the book was, at the time of makingthe entry, one of the ordinary books ofthe bank; and

(b) the book is in the custody and control ofthe bank; and (c) the entry was made in the usual andordinary course of banking business;and

(d) the copy has been examined with theoriginal entry, and is correct. (2) Such proof may be given by an officer

of the bank, or, in the case of the proofrequired under subsection (1) (d), by theperson who has performed the examination, andmay be given either orally or by an affidavitsworn before a commissioner for oaths or aperson authorized to take affidavits.

178. A banker or officer of a bank shallnot, in any proceedings to which the bank isnot a party, be compellable to produce anybanker’s book the contents of which can beproved under this Chapter or to appear as awitness to prove the matters, transactions andaccounts therein recorded, unless by order ofthe court made for special cause.

179. (1) On the application of any partyto proceedings a court may order that suchparty be at liberty to inspect and take copiesof any entries in a banker’s book for any ofthe purposes, of such proceedings.

(2) An order made under this section maybe made either with or without summoning thebank or any other party, and shall be servedon the bank three clear days before it is tobe obeyed, unless the court otherwise directs.

(3) For the purposes of subsection (1),“proceedings” includes any proceedings inTanzania or Uganda.

180. (1) Where it is proved on oath to ajudge or magistrate that in fact, or accordingto reasonable suspicion, the inspection of anybanker’s book is necessary or desirable forthe purpose of any investigation into thecommission of an offence, the judge or

magistrate mayby warrantauthorize apolice officeror otherperson namedtherein toinvestigatethe account ofany specifiedperson in anybanker’s book,and suchwarrant shallbe sufficientauthority forthe productionof any suchbanker’s bookas may berequired forscrutiny bythe officer orperson namedin thewarrant, andsuch officeror person maytake copies ofProof and verification of copy. Restriction on compelling production of banker’s book.Inspection of bankers’ books.L.N. 22 of 1965.Warrant to investigate. www.kenyalaw.org EvidenceCap 80 [2009] 60

Costs. Saving for other laws.Cessation of applicationof Indian Evidence Act. 1 of 1872. Cap. 2. (s. 78)

anyrelevantentry ormatter insuchbanker’sbook.

(2)Any personwho failsto produceany suchbanker’sbook tothe policeofficer orotherpersonexecutinga warrantissuedunder thissection orto permitsuchofficer orperson toscrutinizethe bookor to takecopies ofanyrelevantentry ormatter

therein shall be guilty of an offence and liable toimprisonment for a term not exceeding one year orto a fine not exceeding two thousand shillings orto both such imprisonment and fine.

181. (1) The costs of any application to acourt under or for the purposes of this Chapter andthe costs of anything done or to be done under anorder of a court made under or for the purposes ofthis Chapter, shall be in the discretion of thecourt, which may order them, or any part thereof,to be paid to any party by the bank where the costswere occasioned by any default or delay on the partof the bank.

(2) An order under subsection (1) may beenforced as if the bank was a party to theproceedings.

CHAPTER VIII - MISCELLANEOUSPROVISIONS

182. Save as otherwise expressly provided inthis Act, nothing in this Act shall be deemed toderogate from the provisions of any other writtenlaw which relate to matters of evidence.

183. (1) From and after the commencement ofthis Act the Evidence Act, 1872, of India shallcease to extend or apply to Kenya.

(2) For the purposes of sections 21 and 23 ofthe Interpretation and General Provisions Act, theEvidence Act, 1872, of India, as it applied toKenya prior to the commencement of this Act, shallbe deemed to be a written law which has beenrepealed by, and re-enacted in, this Act.

SCHEDULECertificate as to Photographic Print or Enlargement

I, ............................of ........................ being an officerappointed by the ............................ under......................... (Gazette NoticeNo. ....... of ............) hereby certify asfollows: -

(1) On the ........... day of ................19.... at ..................... I received in asealed packet numbered .........................purporting to be signedby ................., ............. exposedphotographic film(s) under www.kenyalaw.org Evidence Cap 80 [2009] 61

cover of a letter, No. ...... dated ...............,purporting to be sent by .................., requesting that Ishould process the said film(s) and prepare therefromphotographic print(s) and/or enlargement(s).

(2) The said letter and packet were each signed and dated byme and are attached hereto as annexes 1 and 2, respectively

(3) In pursuance of the said request (I processed) the saidfilm(s) were processed under my supervision and (prepared)therefrom photographic print(s) and/or enlargement(s) (each of)were prepared which I have signed and now attach hereto asannex(es) ..................

(4) The photographic print(s) and/or enlargement(s) attachedhereto as annex(es) ............... is/are as nearly as may be(an) exact reproduction(s) from the exposed film(s) submitted tome as aforesaid and have in no way been retouched, altered orotherwise interfered with in the process of their preparation.

Given at....................under my handthis....................day of .........19.....

(Signed).............................................. www.kenyalaw.org Evidence Cap 80 [2009] 62

L.N. 41/2009.CitationInterpretation. Cap. 80.Availability of Rules.Rights of accused person.

THE EVIDENCE (OUT OF COURT CONFESSIONS) RULES, 20091. These Rules may be cited as the Evidence (Out of Court

Confessions) Rules, 2009.2. In these Rules, except where the context otherwise requires –“Act” means the Evidence Act;“electronic recording media” includes any removable or

physical audio recording medium; and“recording officer” means a police officer (other than the

investigating officer) who is not below the rank of ChiefInspector of Police.

3. These Rules shall be readily availed by the Attorney-General for reference by police officers, accused persons andmembers of the public and in particular, shall –

(a) be displayed prominently at every police station andpolice unit;

(b) upon request, be made available by a police officer, ina form of a copy, to an accused person.

4. (1) Where an accused person intimates to the police thathe wishes to make a confession, the recording officer shall takecharge of the accused person and shall ensure that the accusedperson –

(a) has stated his preferred language of communication;(b) is provided with an interpreter free of charge where he

does not speak either Kiswahili or English;(c) is not subjected to any form of coercion, duress,

threat, torture or any other form of cruel, inhuman or degradingtreatment or punishment;

(d) is informed of his right to have legal representation ofhis own choice;

(e) is not deprived of food, water or sleep;www.kenyalaw.org Evidence Cap 80 [2009] 63

Caution to the accused person. Electronic recording media.

(f)has hisduration,including dateandtime ofarrestanddetention inpolicecustody,establishedandrecorded;

(g)has hismedicalcomplaint, ifany,adequatelyaddressed;

(h) is availed appropriate communicationfacilities; and

(i) communicates with the third party nominatedby him under paragraph (3) prior to the caution to berecorded under rule 5.

(2) The recording officer shall not record aconfession from any accused person who complains tohim of being a victim of torture or whose physicalappearance shows signs of physical injuries includingopen wounds, body swelling, or shows extraordinaryfatigue or any other indicators that would suggestthat the accused person has been tortured.

(3) The recording officer shall ask the accusedperson to nominate a third party who shall be presentduring the duration of the confession session, andupon the appearance of the third party, the recordingofficer shall record the third party’s particularsand relationship to the accused person.

5. (1) The recording officer shall caution theaccused person in the following terms and shallrecord his response:

“Do you wish to say anything? You are not obligedto say anything unless you wish to do so but whateveryou say will be taken down in writing and may begiven in evidence.”

(2) While recording the confession, the recordingofficer shall ensure, and record compliance, thatwhere the confession session is prolonged, thesession included rest and relaxation periods.

(3) The recording officer shall ensure that theconfession is recorded at the same time it is madeand shall record the date and time of commencement ofthe confession session and the place where theconfession is recorded.

6. (1) Subject to paragraph (2), the recordingofficer may record the confession of an accusedperson on electronic recording media.

(2) Where the recording officer records theconfession of an accused person on the electronicrecording media –

(a) the accused person shall be notified of suchrecording and of his right to object and thenotification and any response thereto by the www.kenyalaw.org Evidence Cap 80 [2009] 64

Confession recorded inwriting.Clarification of confessionsby accused person.Certificateof confession.Confession not recorded inEnglish or Kiswahili.

accused person,preferablyonelectronicmedia; and

(b)therecordingshall bein theopen.

(3) Inthe eventof failureof theelectronicrecordingmedia, therecordingofficermay –

(a)opt toreplacetheequipmentand recordthe

failure upon the resumption of the confessionsession; or

(b) record in writing.(4) Upon electronic recording, the first

recording which shall be the master recording,shall be marked with a reference number and sealedin the accused person’s presence while a secondrecording will be used as a working copy by theprosecuting authority during the period of exerciseof prosecutorial discretion.

(5) The recording officer shall produce themaster electronic record to the court and may berequested by the court to prove its authenticity.

(6) A copy of the recording shall be given tothe accused person, upon request.

7. Where the confession is to be recorded inwriting, the recording officer shall inform theaccused person of his option to write his ownstatement in his preferred language or to have therecording officer record it.

8. At the conclusion of the recording, theaccused person shall be offered the opportunity toclarify anything he has said and to add anything hemay wish.

9. The recording officer shall ensure that thewritten confession or electronic recording mediacontains the following certificate at the end ofthe confession, in the original language of theaccused person:

“I have read the above statement and I havebeen told that I can correct, alter or add anythingI wish. The statement is true. I have made it of myown free will.”

10. In the case of a confession not recorded inEnglish or Kiswahili, the recording officer shallensure that it is translated into English orKiswahili.www.kenyalaw.org Evidence Cap 80 [2009] 65

Safety of recorded confession. Cap. 84.Accused person arrested outside Kenya.Recording officer to be a witness.

Certification by recording officer.Language of publication.

11. The master recording or the signed confession statement shall be keptsecurely and their movements accounted for on the same basis as material whichmay be used for evidential purposes, as further elaborated in the Forcestanding orders issued under section 5 of the Police Act.

12. Where an accused person is arrested outside of the geographicalboundaries of Kenya for the purpose of being arraigned in a Kenyan court, and,prior to arrival in Kenya, the accused person opts to record a confession –

(a) the arresting authority shall record the confession if the governingprocedures for obtaining of confessions in the arresting jurisdiction are insubstantial compliance with these Rules; and

(b) the trial court shall be the final determining judicial body toadjudicate on the admissibility of the confession so obtained.

13. The recording officer, having informed himself of section 26 of theAct, shall be the proper prosecution witness to prove to the court beyondreasonable doubt that the Rules were complied with.

14. The recording officer shall certify, in writing, that a confession wasnot obtained as a result of any inducement, threat or promise having referenceto the charge against the accused person.

15. These Rules shall be translated and published in Kiswahili in additionto the official copy published in English.

Made the 6th March, 2009S.A. WAKO,

Attorney-General.www.kenyalaw.org Evidence Cap 80 [2009] 66 www.kenyalaw.org Evidence Cap 80 [2009] 67 www.kenyalaw.org Evidence Cap 80 [2009] 68 www.kenyalaw.orgEvidence Cap 80 [2009] 69 www.kenyalaw.org

LAWS OF KENYA

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