LAW OF EVIDENCE
INTRODUCTION
What is evidence? Each writer on the subject approaches the answer to this question in a
slightly different way. Generally speaking the term “evidence” has two different meanings;
facts, and the means of proving those facts in a court of law. OSBORN, THE CONCISE LAW
FICTIONARY (4th Edn.) gives the following definition:-
“All the legal means, exclusive of mere argument, which tend to prove or disprove any matter
of fact, the truth of which is submitted to judicial investigation;...”
You, as the judicial tribunal, must be completely conversant with the law determining (1) what
facts may be proved in court, and (2) how these facts may be proved, and you must first become
aware of the different meanings of the term “evidence” as you will hear it used. For example, in
the statement “From the evidence, I am convinced beyond reasonable doubt that ...”, the word,
“evidence” means “facts proved in court”, and the sentence could be easily read, “From the facts
proved in court, I am convinced beyond reason able doubt that ...”. Again, in s. (2.K.E.A.: “All
facts, except the contents of documents, may be proved by oral evidence.” Here the words “oral
evidence” refer to the means by which facts may be proved, i.e by spoken evidence, and not to
the facts themselves.
It is also important to bear in mind that “evidence” is first tendered or offered to the
court: that is to say the parties to the suit, through their witnesses, offer certain facts to the court
in support of their case. Moreover or not these tendered facts are accepted by the court, or
admitted into evidence depends on what the facts are and the method by which they are tendered,
and it is to this procedure that the law of evidence applies, although certain laws, particularly
those relating to presumptions, also affect the question as to how these facts will be treated once
they have been admitted.
The definition of “evidence” which is contained in the K.E.A. is found in s.3, the
Interpretation section. This section is, in effect, your dictionary for the K.E.A., for whenever you
need to know the definition of a word in the Act which is found in s.3 that is the meaning which
,you must give to the term, regardless of what you may have previously understood the term to
mean, and whether or not it may be used in a different sense in ordinary conversation or even in
another Act. The definition of “evidence” reads:-
“evidence” denotes the means by which an alleged matter of fact, the truth of which is
submitted to investigation, is proved or disproved; and, without prejudice to the foregoing
generally, includes statements by accused persons, admissions, and observations by the court
in its judicial capacity;.
The word “evidence” is often found with an adjective which describes in legal terms the
type of evidence. In as much as these terms appear frequently, not only in the K.E.A. but in the
Reports, you must memorize and understand them completely. The following list is taken from
OSBOTN, THE CONCISE LAW DICTIONARY:
1 Oral evidence: statements made by witnesses in court.
2 Documentary evidence: documents produced for inspection by the judge. (The question of
what a document is discussed elsewhere).
3 Conclusive evidence: evidence of a fact whcih the court must take as full proof of it, and
which excludes all evidence to disprove it.
4 Direct evidence: evidence of a fact actually in issue; evidence of a fact actually perceived by a
witness with his own senses. (The definition of “direct evidence” inasmuch as it relates to
oral evidence is found in s.63(2)K.E.A, and is discussed elsewhere).
5 Circumstantial evidence: evidence of a fact not actually in issue but legally relevant to a fact
in issue.
6 Real evidence: evidence supplied by material objects produced for the inspection of the court.
7 Extrinsic evidence: oral evidence given in connection with written documents.
8 Hearsay evidence: evidence of a fact not actually perceived by a witness with his own senses,
but proved by him to have been stated by another. (A mere complete definition is given in
connection with s.33 K.E.A.).
9 Indirect evidence : circumstantial or hearsay evidence.
10 Original evidence: evidence which has an independent probative of its own.
11 Derivative evidence: evidence which derives its force from some other source.
12 Parol evidence: oral, extrinsic evidence
13 Prima facie evidence: evidence of a fact which the court must take as proof of such fact,
, unless disproved by further evidence.
14 Primary evidence: evidence which itself suggests that it is the best evidence, and which is
rejected to be produced if available.
15 Secondary evidence: evidence which itself suggests the existence of better evidence, and
which is rejected if primary evidence is avaiable.
(Note that in connection with documents and the proof of documents, primary and secondary
evidence are defined in ss.65 and 66, K.E.A.)
Facts:
As a general statement we may say, with certain exceptions which we will consider later,
that the court is concerned almost conclusively with the FACTS of the case and the means by
which these facts say be proved. The court will then, of course, apply the relevant law to the
admissible facts in order to reach a decision. “Fact” is defined in s.3 K.E.A. as follows: “fact”
includes:-
a any thing, state of things, or relation of things, capable of being perceived by the senses;
b any mental condition of which any person is conscious; “fact in issue” means any fact from
which, either by itself or in connexion with other facts, the existence, non-existence, nature or
extent of any right, liability or disability, asserted or denied in any suit or preceeding,
necessarily follows;
A “thing” under (a) above is a material object (a chair), or a fact (that man is 30 years old.
A “state of things” is the state of affairs (hali ya mambo), and a “relation of things” is the relation
facts bear to each other: the chair is in the room; he is my son, therefore I am his father. The
senses are the special powers of the body by which a person is conscious of things, ie sight,
hearing, smell, taste and feeling, “feeling” to include the definition of (b) above, the mental
condition of which a person is conscious. Thus if a man through his senses “feels” or is
conscious that another person is angry, happy, disturbed, etc, this is a fact. It is important to
remember, however, that this type of fact arises from the physical manifestations of that feeling
in the other person, that mental condition. If a person is angry, he shows his anger by frowning,
clenching his fists, speaking certain words, acting in a certain way, etc, and if a witness states “he
was angry”, he should be able to describe how the man acted, what he said; etc to support his
feeling; to support the fact.
, As we will see in the section on the burden of proof, a party to a suit or proceeding must
prove the facts upon which he rests his case, i.e. he must prove the facts in issue. Each party will
assert or allege that certain things are true, that certain facts exist, claiming that the existence of
these facts means that the court should decide the case in his favour. In many cases the parties
will assert an entirely different set of facts; the prosecution claims that the defendant assaulted
Mr. X; the defendant alleges that he did not assault Mr. X. In some instances, particularly in civil
cases, both parties will assert that even though only one agreed set of facts existed, the case
should be decided in his favour e.g. in a contract case where there is an agreed set of facts and
the parties assert that the law as applied should result in a particular decision. The question
therefore arises as to when a fact is proved or disproved. The answer is found in s.3 K.E.A.
1 A fact is proved when, after considering the matters before it, the court either believes it to
exist, or considers its existence so probable that a prudent man ought, in the circumstances of
the particular case, to act upon the supposition that it exists.
2 A fact is disproved when, after considering the matters before it, the court either believes that
it does not exist, or considers its non-existence so probable that a prudent man ought, in the
circumstances of the particular case, to act upon the supposition that it does not exist.
3 A fact is not proved when it is neither proved nor disproved.
The presumption of innocence.
The basic presumption underlying the criminal law of Kenya is the presumption of
innocence, found in the Constitution of Kenya in Chapter II (Protection of Fundamental Rights
and Freedoms of the Individual), Section 21(2)(a) as follows:-
21. (1) ...
(2) Every person who is charged with a criminal offence -
a shall be presumed to be innocent until he is proved or has pleaded guilty; and in connection
therewith, subs.(7), which reads:-
(7) No person who is tried for a criminal offence shall be compelled to give evidence at the trial.
These provisions are reflected in the K.E.A. and in the Criminal Procedure Code (hereinafter
referred to as the C.P.C.)
Direct and circumstantial evidence
INTRODUCTION
What is evidence? Each writer on the subject approaches the answer to this question in a
slightly different way. Generally speaking the term “evidence” has two different meanings;
facts, and the means of proving those facts in a court of law. OSBORN, THE CONCISE LAW
FICTIONARY (4th Edn.) gives the following definition:-
“All the legal means, exclusive of mere argument, which tend to prove or disprove any matter
of fact, the truth of which is submitted to judicial investigation;...”
You, as the judicial tribunal, must be completely conversant with the law determining (1) what
facts may be proved in court, and (2) how these facts may be proved, and you must first become
aware of the different meanings of the term “evidence” as you will hear it used. For example, in
the statement “From the evidence, I am convinced beyond reasonable doubt that ...”, the word,
“evidence” means “facts proved in court”, and the sentence could be easily read, “From the facts
proved in court, I am convinced beyond reason able doubt that ...”. Again, in s. (2.K.E.A.: “All
facts, except the contents of documents, may be proved by oral evidence.” Here the words “oral
evidence” refer to the means by which facts may be proved, i.e by spoken evidence, and not to
the facts themselves.
It is also important to bear in mind that “evidence” is first tendered or offered to the
court: that is to say the parties to the suit, through their witnesses, offer certain facts to the court
in support of their case. Moreover or not these tendered facts are accepted by the court, or
admitted into evidence depends on what the facts are and the method by which they are tendered,
and it is to this procedure that the law of evidence applies, although certain laws, particularly
those relating to presumptions, also affect the question as to how these facts will be treated once
they have been admitted.
The definition of “evidence” which is contained in the K.E.A. is found in s.3, the
Interpretation section. This section is, in effect, your dictionary for the K.E.A., for whenever you
need to know the definition of a word in the Act which is found in s.3 that is the meaning which
,you must give to the term, regardless of what you may have previously understood the term to
mean, and whether or not it may be used in a different sense in ordinary conversation or even in
another Act. The definition of “evidence” reads:-
“evidence” denotes the means by which an alleged matter of fact, the truth of which is
submitted to investigation, is proved or disproved; and, without prejudice to the foregoing
generally, includes statements by accused persons, admissions, and observations by the court
in its judicial capacity;.
The word “evidence” is often found with an adjective which describes in legal terms the
type of evidence. In as much as these terms appear frequently, not only in the K.E.A. but in the
Reports, you must memorize and understand them completely. The following list is taken from
OSBOTN, THE CONCISE LAW DICTIONARY:
1 Oral evidence: statements made by witnesses in court.
2 Documentary evidence: documents produced for inspection by the judge. (The question of
what a document is discussed elsewhere).
3 Conclusive evidence: evidence of a fact whcih the court must take as full proof of it, and
which excludes all evidence to disprove it.
4 Direct evidence: evidence of a fact actually in issue; evidence of a fact actually perceived by a
witness with his own senses. (The definition of “direct evidence” inasmuch as it relates to
oral evidence is found in s.63(2)K.E.A, and is discussed elsewhere).
5 Circumstantial evidence: evidence of a fact not actually in issue but legally relevant to a fact
in issue.
6 Real evidence: evidence supplied by material objects produced for the inspection of the court.
7 Extrinsic evidence: oral evidence given in connection with written documents.
8 Hearsay evidence: evidence of a fact not actually perceived by a witness with his own senses,
but proved by him to have been stated by another. (A mere complete definition is given in
connection with s.33 K.E.A.).
9 Indirect evidence : circumstantial or hearsay evidence.
10 Original evidence: evidence which has an independent probative of its own.
11 Derivative evidence: evidence which derives its force from some other source.
12 Parol evidence: oral, extrinsic evidence
13 Prima facie evidence: evidence of a fact which the court must take as proof of such fact,
, unless disproved by further evidence.
14 Primary evidence: evidence which itself suggests that it is the best evidence, and which is
rejected to be produced if available.
15 Secondary evidence: evidence which itself suggests the existence of better evidence, and
which is rejected if primary evidence is avaiable.
(Note that in connection with documents and the proof of documents, primary and secondary
evidence are defined in ss.65 and 66, K.E.A.)
Facts:
As a general statement we may say, with certain exceptions which we will consider later,
that the court is concerned almost conclusively with the FACTS of the case and the means by
which these facts say be proved. The court will then, of course, apply the relevant law to the
admissible facts in order to reach a decision. “Fact” is defined in s.3 K.E.A. as follows: “fact”
includes:-
a any thing, state of things, or relation of things, capable of being perceived by the senses;
b any mental condition of which any person is conscious; “fact in issue” means any fact from
which, either by itself or in connexion with other facts, the existence, non-existence, nature or
extent of any right, liability or disability, asserted or denied in any suit or preceeding,
necessarily follows;
A “thing” under (a) above is a material object (a chair), or a fact (that man is 30 years old.
A “state of things” is the state of affairs (hali ya mambo), and a “relation of things” is the relation
facts bear to each other: the chair is in the room; he is my son, therefore I am his father. The
senses are the special powers of the body by which a person is conscious of things, ie sight,
hearing, smell, taste and feeling, “feeling” to include the definition of (b) above, the mental
condition of which a person is conscious. Thus if a man through his senses “feels” or is
conscious that another person is angry, happy, disturbed, etc, this is a fact. It is important to
remember, however, that this type of fact arises from the physical manifestations of that feeling
in the other person, that mental condition. If a person is angry, he shows his anger by frowning,
clenching his fists, speaking certain words, acting in a certain way, etc, and if a witness states “he
was angry”, he should be able to describe how the man acted, what he said; etc to support his
feeling; to support the fact.
, As we will see in the section on the burden of proof, a party to a suit or proceeding must
prove the facts upon which he rests his case, i.e. he must prove the facts in issue. Each party will
assert or allege that certain things are true, that certain facts exist, claiming that the existence of
these facts means that the court should decide the case in his favour. In many cases the parties
will assert an entirely different set of facts; the prosecution claims that the defendant assaulted
Mr. X; the defendant alleges that he did not assault Mr. X. In some instances, particularly in civil
cases, both parties will assert that even though only one agreed set of facts existed, the case
should be decided in his favour e.g. in a contract case where there is an agreed set of facts and
the parties assert that the law as applied should result in a particular decision. The question
therefore arises as to when a fact is proved or disproved. The answer is found in s.3 K.E.A.
1 A fact is proved when, after considering the matters before it, the court either believes it to
exist, or considers its existence so probable that a prudent man ought, in the circumstances of
the particular case, to act upon the supposition that it exists.
2 A fact is disproved when, after considering the matters before it, the court either believes that
it does not exist, or considers its non-existence so probable that a prudent man ought, in the
circumstances of the particular case, to act upon the supposition that it does not exist.
3 A fact is not proved when it is neither proved nor disproved.
The presumption of innocence.
The basic presumption underlying the criminal law of Kenya is the presumption of
innocence, found in the Constitution of Kenya in Chapter II (Protection of Fundamental Rights
and Freedoms of the Individual), Section 21(2)(a) as follows:-
21. (1) ...
(2) Every person who is charged with a criminal offence -
a shall be presumed to be innocent until he is proved or has pleaded guilty; and in connection
therewith, subs.(7), which reads:-
(7) No person who is tried for a criminal offence shall be compelled to give evidence at the trial.
These provisions are reflected in the K.E.A. and in the Criminal Procedure Code (hereinafter
referred to as the C.P.C.)
Direct and circumstantial evidence
