This gives foundational knowledge on the Law of Evidence, in Kenya.

1. Francis Kariuki
11/8/2018

2. Introduction
 In civil and criminal cases, where there is non-
admission of liability or plea of not guilty, the
plaintiff/defendant or prosecution/accused have to
prove a variety of facts.
 Facts that have to be proved are determined by the
substantive law concerned. This in turn determines
the facts in issue and any relevant facts to the facts in
issue.
What facts must you prove to succeed in a negligence
case? Breach of contract? Murder charge?
 In both instances, the Plaintiff and the prosecution
must establish their cases by presenting to the court
evidence.
11/8/2018

3. What is Evidence?
 According to Keane, Evidence is:
“information by which facts tend to be proved, and the
law of evidence is that body of legal rules regulating the
means by which facts may be proved in courts of law and
tribunals and arbitrations in which the strict rules of
evidence apply.”
 Sec. 3(1) of the Evidence Act defines Evidence as:
“…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
generality, includes statements by accused persons,
admissions, and observation by the court in its judicial
capacity.”
11/8/2018

4. Why Evidence Law?
Evidence law is concerned with the proof
or disproof of facts in courts of law.
Rules of evidence act as a guide to the
relevance and admissibility of evidence,
and the weight to be given to a particular
piece of evidence.
An important branch of law in
dispensation of justice.
Supports other branches of law in dispute
resolution.
11/8/2018

5. Sources of Evidence Law
Rules of Evidence are mainly contained
in the Evidence Act, Cap. 80. The Act
replaced the Indian Evidence Act of 1872,
on 10th Dec 1963.
Case law.
Common law.
Other Acts of Parliament.
Constitution of Kenya 2010-Articles 35,
49(1)(d), 50(2)(j)-(l), 50(4),(6) etc
11/8/2018

6. Facts and Types of Facts
 Sec. 3(1) of the Act defines the term ‘fact’ in an inclusive
manner as-
“(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.”
 When is a fact proved or disproved?
A fact is proved when, after considering the matters
before it, the court 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, Sec 3(2).
11/8/2018

7. Facts…
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, Sec 3(3).
A fact is not proved when it is neither proved nor
disproved, Sec 3(4).
 Although as a general rule, all facts must be proved,
certain facts need not be proved (Judicial notice,
presumptions and formal admissions).
11/8/2018

8. Types of Facts
a) Facts in issue/principal facts: these are facts that a
claimant must prove to succeed. For example;
 In a contractual dispute, where D denies the
contractual relationship, the principal facts P must
prove are those establishing formation of a contract
between P and D, breach and the loss suffered.
 What are the principal facts in a negligence case?
Theft? Defamation?
 In civil matters, facts in issue can be found in the
pleadings.
 In criminal cases, facts in issue can be isolated from the
charge sheet or indictment.
11/8/2018

9. b) Relevant facts: these are facts which
help to prove that a fact in issue exists.
Such type of evidence is called
circumstantial evidence.
If the fact in issue is whether A shot X,
an eyewitness would be the best way to
prove. However, if such evidence is
unavailable, the fact that after the
incident, a policeman found the gun in
A’s car would be a relevant fact that
assists in proving the fact in issue.
11/8/2018

10. c) Collateral facts: facts that support or
corroborate other facts. There are 3 types of
such facts:
 Facts regarding the competence of witnesses.
 Facts regarding the credibility of a witness.
 Preliminary facts: these are facts relating to the
admissibility of evidence, e.g. the rule that
confessions must not be obtained through use
of oppression. If an accused has been tortured
to confess, evidence can be adduced to decide
whether that confession is admissible.
11/8/2018

11. Types of Evidence
 Oral evidence/testimony/direct evidence-
oral statement of a witness made on oath in
court.
 It is offered as evidence of truth of what is said.
 It is normally direct evidence of matters which
the witness has first-hand knowledge-facts
experienced with one of his five senses.
 Hearsay evidence.
 Documentary evidence-includes maps, plans,
graphs, drawings, photographs, discs, tapes,
videotapes, films, negatives etc.
11/8/2018

12. Types of Evidence
 A document may be introduced as evidence of the
truth of its contents or to show that it exists or to
prove its condition, in which case it is regarded as
real evidence.
 Real evidence-usually a material object produced
for inspection.
 Circumstantial evidence-common where there is a
combination of circumstances, none of which can
raise a reasonable conviction UNLESS taken
together.
 Primary evidence/ the ‘best evidence rule’-means
the original document produced to court-sec 65.
 Secondary evidence-copies of original document.
11/8/2018

13. 11/8/2018