Section 144-146 of the Kenya Evidence Act
EXAMINATION OF WITNESSES
144. Court to decide as to the admissibility of evidence
(1) When either party proposes to give evidence of any fact, the court may ask
the party proposing to give the evidence in what manner the alleged fact, if proved,
would be admissible.
(2) The court shall admit the evidence of any fact if it thinks that the fact, if
proved, would be admissible and not otherwise.
(3) If the fact proposed to be proved is one of which evidence is admissible
only upon proof of some other fact, such last mentioned fact must be proved before
evidence is given of the fact first mentioned, unless the party undertakes to give
proof of such fact and the court is satisfied with such undertaking.
(4) If the admissibility of one alleged fact depends upon another alleged fact
being first proved, the court may, in its discretion, either permit evidence of the first
fact to be given before the second fact is proved, or require evidence to be given
of the second fact before evidence is given of the first fact.
145. Type of examination of witnesses
(1) The examination of a witness by the party who calls him shall be called his
examination-in-chief.
(2) The examination of a witness by the adverse party shall be called his cross-
examination.
(3) Where a witness has been cross-examined and is then examined by the
party who called him, such examination shall be called his re-examination.
146. Order and direction of examinations
(1) Witnesses shall first be examined-in-chief, then, if the adverse party so
desires, cross-examined, then, if the party calling them so desires, re-examined.
(2) Subject to the following provisions of this Act, the examination-in-chief and
cross-examination must relate to relevant facts, but the cross-examination need
not be confined to the facts to which the witness testified in his examination-in-chief.
(3) The re-examination shall be directed to the explanation of matters referred
to in cross-examination; and, if new matter is, by permission of the court, introduced
in re-examination, the adverse party may further cross-examine upon that matter.
(4) The court may in all cases permit a witness to be recalled either for further
examination-in-chief or for further cross-examination, and if it does so, the parties
have the right of further cross-examination and re-examination respectively.
Evidence Law: Examination of witnesses
Evidence Law: Admissibility of Evidence in Kenya
17. Admissions defined generally
An admission is a statement, oral or documentary, which suggests any inference
as to a fact in issue or relevant fact, and which is made by any of the persons and
in the circumstances hereinafter mentioned.
18. Statements by party to suit or agent or interested person
(1) Statements made by a party to the proceeding, or by an agent to any such
party, whom the court regards in the circumstances of the case as expressly or
impliedly authorized by 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 while the party making them
held that character.
(3) Statements made by—
(a) persons who have any proprietary or pecuniary interest in the subject-
matter of the proceeding, and who make the statement in the
character of persons so interested; or
(b) persons from whom the parties to a suit have derived their interest in
the subject-matter of the suit,
are admissions if they are made during the continuance of interest of the persons
making the statements.
19. Statements by persons whose position or liability must be proved as
against party to suit
Statements made by persons whose position or liability it is necessary to
prove as against any party to a suit, are admissions if such statements would be
admissible as against such persons in relation to such position or liability in a suit
brought by or against them, and if they are made whilst the person making them
occupies such position or is subject to such liability.
20. Statements by persons expressly referred to by party to suit
Statements made by persons to whom a party to the suit has expressly referred
for information in reference to a matter in dispute are admissions.
20A. Proof of written statement by consent
(1) If the person who makes a statement cannot read it, the statement shall be
read to him by an officer of or above the rank of a Chief Inspector or a magistrate
before he signs it, and an endorsement shall be made thereof by the person who
so read the statement to the effect that it was so read.
(2) A copy of the statement, together with a copy of any document referred to
in the statement as an exhibit, or with such information as may be necessary in
order to enable the party on whom it is served to inspect such document or a copy
thereof, shall, before the date on which the document is to be tendered in evidence,
be served on each of the other parties to the proceedings, and any such party may, at least two days before the commencement of the proceedings, object to the
statement being tendered in evidence under this section.
(3) If a party objects under subsection (2) that the statement in question be
tendered in evidence, the statement shall not, but subject to the provisions of
subsection (4), be admissible as evidence under this section.
(4) If a party does not object under subsection (2) or if the parties agree
before or during the proceedings in question that the statement may be so
tendered in evidence, the statement may, upon the mere production thereof at such
proceedings, be admitted as evidence in the proceedings.
(5) When the documents referred to in subsection (3) are served on an accused
person, the documents shall be accompanied by a written notification in which the
accused person is informed that the statement in question shall be tendered in
evidence at his trial in lieu of the State calling as a witness the person who made
the statement, but that such statement shall not without the consent of the accused
person be so tendered in evidence if he notifies the prosecutor concerned, at least
two days before the commencement of the proceedings, that he objects to the
statement so being tendered in evidence.
(6) The parties to criminal proceedings may, before or during such proceedings,
agree that any written statement referred to in subsections (1) which has not been
served in terms of subsection (2) be tendered in evidence at such proceedings,
whereupon such statement may, upon the mere production thereof at such
proceedings, be admitted as evidence in the proceedings.
(7) Notwithstanding that a written statement made by any person may be
admissible as evidence under this section—
(a) a party by whom or on whose behalf a copy of the statement was
served, may call such person to give oral evidence;
(b) the court may, of its own motion, and shall, upon the application of
any party to the proceedings in question, cause the person giving oral
evidence to be summoned before the court, or the court may, where
the person concerned is resident outside the court's jurisdiction, issue
summons to be effected through the diplomatic channel.
(8) Any document or object referred to as an exhibit and identified in a written
statement tendered in evidence under this section, shall be treated as if it had
been produced as an exhibit and identified in court by the person who made the
statement.
(9) Any person who makes a statement which is admitted as evidence under
this section and who in such statement willfully and falsely states anything which,
if sworn, would have amounted to the offence of perjury, shall be deemed to
have committed the offence of perjury and shall, upon conviction, be liable to the
punishment prescribed therefor.
[Act No. 19 of 2014, s. 26.]
21. Proof of admissions against persons making them, and by or on their
behalf
Subject to the provisions of this Act, an admission may be proved as against
the person who makes it or his representative in interest; but an admission cannot
be proved by or on behalf of the person who makes it or by his representative in
interest, except in the following cases—
(a) when it is of such a nature that, if the person making it were dead,
it would be admissible as between third persons under section 33 of
this Act;
(b) when it consists of a statement of the existence of any state of mind or
body, relevant or in issue, made at or about the time when such state
of mind or body existed, and is accompanied by conduct rendering its
falsehood improbable;
(c) if it is relevant otherwise than as an admission.
22. Oral admissions as to contents of documents
Oral admissions as to the contents of a document may not be proved unless and
until the party proposing to prove them shows that he is entitled to give secondary
evidence of the contents of such document under the provisions of this Act or
unless the genuineness of a document produced is in question.
23. Admissions made without prejudice in civil cases
(1) In civil cases no admission may be proved if it is made either upon an
express condition that evidence of it is not to be given or in circumstances from
which the court can infer that the parties agreed together that evidence of it should
not be given.
(2) Nothing in subsection (1) of this section shall be taken to exempt any
advocate from giving evidence of any matter of which he may be compelled to give
evidence under section 134 of this Act.
24. Effect of admissions
Admissions are not conclusive proof of the matters admitted, but they may
operate as estoppels under the provisions hereinafter contained.
Evidence Law: Competency of Witnesses in Kenya
Below is Section 125-127 the Kenya Evidence Act deals with competency of witnesses
125. Competency generally
(1) All persons shall be competent to testify unless the court considers that they
are prevented from understanding the questions put to them, or from giving rational
answers to those questions, by tender years, extreme old age, disease (whether
of body or mind) or any similar cause.
(2) A mentally disordered person or a lunatic is not incompetent to testify unless
he is prevented by his condition from understanding the questions put to him and
giving rational answers to them.
126. Dumb witnesses
(1) A witness who is unable to speak may give his evidence in any other manner
in which he can make it intelligible, as, for example, by writing or by signs; but such
writing must be written, and the signs made, in open court.
(2) Evidence so given shall be deemed to be oral evidence.
127. Competency of parties and spouses
(1) In civil proceedings the parties to the suit, and the husband or wife of any
party to the suit, shall be competent witnesses.
(2) In criminal proceedings every person charged with an offence, and the wife
or husband of the person charged, shall be a competent witness for the defence
at every stage of the proceedings, whether such person is charged alone or jointly
with 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) of this section, the wife or husband
of the person charged shall not be called as a witness except upon
the application of the person charged;
(iii) the failure of the person charged (or of the wife or husband of
that person) to give evidence shall not be made the subject of any
comment by the prosecution.
(3) In criminal proceedings the wife or husband of the person charged shall be
a competent and compellable witness for the 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 (No. 3 of 2006);
(c) in respect of an act or omission affecting the person or property of the
wife or husband of such person or the children of either of them, and
not otherwise.
(4) In this section “husband” and “wife” mean respectively the husband and
wife of a marriage, whether or not monogamous, which is by law binding during the
lifetime of both parties unless dissolved according to law, and includes a marriage
under native or tribal custom.
Evidence Law: Documentary Evidence in Kenyan Courts
Section 64-78A of the Kenya evidence Act
DOCUMENTARY EVIDENCE
64. Proof of contents of documents
The contents of documents may be proved either by primary or by secondary
evidence.
65. Primary evidence
(1) Primary evidence means the document itself produced for the inspection
of the court.
(2) Where a document is executed in several parts, each part is primary
evidence of the document.
(3) Where a document is executed in counterpart each counterpart being
executed by one or some of the parties only, each counterpart is primary evidence
as against the parties executing it.
(4) Where a number of documents are all made by one uniform process, as in
the case of printing, lithography or photography, each is primary evidence of the
contents of the rest; but where they are all copies of a common original they are
not primary evidence of the contents of the original.
(5) Notwithstanding anything contained in any other law for the time being in
force—
(a) a micro-film of a document or the reproduction of the image or images
embodied in such micro-film; or
(b) a facsimile copy of a document or an image of a document derived or
captured from the original document; or
(c) a statement contained in a document and included in printed material
produced by a computer (hereinafter referred to as a “computer print-
out”),
shall, if the conditions stipulated in subsection (6) of this section are satisfied, be
deemed to also be a document for the purposes of this Act and shall be admissible
in any proceedings without further proof of production of the original, as evidence
of any contents of the original or of any fact stated therein of which direct evidence
would be admissible.
(6) The conditions referred to in subsection (5) in respect of a computer print-
out shall be the following, namely—
(a) the computer print-out containing the statement must have been
produced by the computer during the period in which the computer
was regularly used to store or process information for the purposes of
any activities regularly carried on over that period by a person having
lawful control over the use of the computer;
(b) the computer was, during the period to which the proceedings relate,
used in the ordinary course of business regularly and was supplied
with information of the kind contained in the document or of the kind
from which the information so contained is derived;
(c) the computer was operating properly or, if not, that any respect in
which it was not operating properly was not such as to affect the
production of the document or the accuracy of its content;
(d) the information contained in the statement reproduces or is derived
from information supplied to the computer in the ordinary course of
business.
(7) Where, over any period, the function of storing or processing information
for the purposes of any activities regularly carried on over that period mentioned in
paragraph (a) of subsection (6) was regularly performed by computers, whether—
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over
that period; or
(d) in any other manner involving the successive operation over that
period, in whatever order, of one or more computers and one or more
combination of computers,
all computers used for that purpose during that period shall be treated for the
purposes of this section as constituting a single computer; and references in this
section to a computer shall be construed accordingly.
(8) In any proceedings under this Act where it is desired to give a computer
print-out or statement in evidence by virtue of this section, a certificate doing any
of the following things, that is to say—
(a) identifying a document containing a print-out or statement and
describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that
document as may be appropriate for the purpose of showing that the
document was produced by a computer;
(c) dealing with any of the matters to which conditions mentioned in the
subsection (6) relate,
which is certified by a person holding a responsible position in relation to the
operation of the relevant device or the management of the activities to which
the document relates in the 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 a computer if it is
supplied in any appropriate form and whether it is so supplied directly
or (with or without human intervention) by means of any appropriate
equipment;
(b) information shall be deemed to be supplied in the ordinary course of
business if the information was obtained, received or supplied with a
view to it being processed, stored or retrieved in the ordinary course
of business; and
(c) a document shall be deemed to have been produced by a computer
whether it was produced by it directly or (with or without human
intervention) by means of any other appropriate equipment connected
to such computer.
66. Secondary evidence
Secondary evidence includes—
(a) certified copies given under the provisions hereinafter contained;
(b) copies made from the original by mechanical processes which in
themselves ensure the accuracy of the copy, and copies compared
with such copies;
(c) copies made from or compared with the original;
(d) counterparts of documents as against the parties who did not execute
them;
(e) oral accounts of the contents of a document given by some person
who has himself seen it.
67. Proof of documents by primary evidence
Documents must be proved by primary evidence except in the cases hereinafter
mentioned.
68. Proof of documents by secondary evidence
(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 the possession 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 fails to produce it;
(b) when the existence, condition or contents of the original are proved
to be admitted in writing by the person against whom it is proved, or
by his representative in interest;
(c) when the original has been destroyed or lost, or when the party
offering evidence of its contents cannot, for any other reason not
arising from his own default or neglect, produce it in a reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section
79 of this Act;
(f) when the original is a document of which a certified copy is permitted
by this Act or by any written law to be given in evidence;
(g) when the original consists of numerous accounts or other documents
which cannot conveniently be examined in court, and the fact to be
proved is the general result of the whole collection.
(2) (a) In the cases mentioned in paragraphs (a), (c) and (d) of subsection (1),
any secondary evidence of the contents of the document is admissible.
(b) In the case mentioned in paragraph (b) of subsection (1) of this section, the
written admission is admissible.
(c) In the cases mentioned in paragraphs (e) and (f) of subsection (1) of this
section, a certified copy of the document, but no other kind of secondary evidence,
is admissible.
(d) In the case mentioned in paragraph (g) of subsection (1) of this section,
evidence may be given as to the general result of the accounts or documents by
any person who has examined them, and who is skilled in the examination of such
accounts or documents.
69. Notice to produce a document
Secondary evidence of the contents of the documents referred to in
section 68(1)(a) of this Act shall not be given unless the party proposing to give
such secondary evidence has previously given to the party in whose possession or
power the document is, or to his advocate, such a notice to produce it as is required
by law or such notice as the court considers reasonable in the circumstances of
the case:
Provided that such notice shall not be required in order to render secondary
evidence admissible in any of the following cases—
(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 fraud or force;
(iv) when the adverse party or his agent has the original in court;
(v) when the adverse party or his agent has admitted the loss of the
document;
(vi) when the person in possession of the document is out of reach of, or
not subject to, the process of the court;
(vii) in any other case in which the court thinks fit to dispense with the
requirement.
70. Proof of allegation that persons signed or wrote a document
If a document is alleged to be signed or to have been written wholly or in part
by any person, the signature or the handwriting of so much of the document as is
alleged to be in that person’s handwriting must be proved to be in his handwriting.
71. Proof of execution of document required by law to be attested
If a document is required by law to be attested it shall not be used as evidence
until one attesting witness at least has been called for the purpose of proving its
execution, if there is an attesting witness alive and subject to the process of the
court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of
the execution of any document which has been registered in accordance with the
provisions of any written law, unless its execution by the person by whom it purports
to have been executed is specifically denied.
72. Proof where no attesting witness found
Where evidence is required of a document which is required by law to be
attested, and none of the attesting witnesses can be found, or where such witness
is incapable of giving evidence or cannot be called as a witness without an amount
of delay or expense which the court regards as unreasonable, it must be proved
that the attestation of one attesting witness at least is in his handwriting, and that
the signature of the person executing the document is in the handwriting of that
person.
73. Admission of execution of attested document
The admission of a party to an attested document, of its execution by himself,
shall be sufficient proof of its execution as against him though it be a document
required by law to be attested.
74. Proof where attesting witness denies execution
If the attesting witness denies or does not recollect the execution of a document,
its execution may be proved by other evidence.
75. Proof of document not required to be attested
An attested document not required by law to be attested may be proved as if
it was unattested.
76. Comparison of signatures, seals, etc.
(1) In order to ascertain whether a signature, writing or seal is that of the person
by whom it purports to have been written or made, any signature, writing or seal,
admitted or proved to the satisfaction of the court to have been written or made
by that person, may be compared by a witness or by the court with the one which
is to be proved, although that signature, writing or seal has not been produced or
proved for any other purpose.
(2) The court may direct any person present in court to write any words or
figures for the purpose of enabling the court to compare the words or figures so
written with any words or figures alleged to have been written by such person.
(3) This section applies with necessary modifications to finger impressions.
77. Reports by Government analysts and geologists
(1) In criminal proceedings any document purporting to be a report under the
hand of a Government analyst, medical practitioner or of any ballistics expert,
document examiner or geologist upon any person, matter or thing submitted to him
for examination or analysis may be used in evidence.
(2) The court may presume that the signature to any such document is genuine
and that the person signing it held the office and qualifications which he professed
to hold at the time when he signed it.
(3) When any report is so used the court may, if it thinks fit, summon the analyst,
ballistics expert, document examiner, medical practitioner, or geologist, as the case
may be, and examine him as to the subject matter thereof.
78. Photographic evidence—admissibility of certificate
(1) In criminal proceedings a certificate in the form in the First Schedule to this
Act, given under the hand of an officer appointed by order of the Director of Public
Prosecutions for the purpose, who shall have prepared a photographic print or a
photographic enlargement from exposed film submitted to him, shall be admissible,
together with any photographic prints, photographic enlargements and any other
annex referred to therein, and shall be evidence of all facts stated therein.
(2) The court may presume that the signature to any such certificate is genuine.
(3) When a certificate is received in evidence under this section the court may,
if it thinks fit, summon and examine the person who gave it.
[L.N. 22/1965, Act No. 12 of 2012, Sch.]
78A. Admissibility of electronic and digital evidence
(1) In any legal proceedings, electronic messages and digital material shall be
admissible as evidence.
(2) The court shall not deny admissibility of evidence under subsection (1) only
on the ground that it is not in its original form.
(3) In estimating the weight, if any, to be attached to electronic and digital
evidence, under subsection (1), regard shall be had to—
(a) the reliability of the manner in which the electronic and digital evidence
was generated, stored or communicated;
(b) the reliability of the manner in which the integrity of the electronic and
digital evidence was maintained;
(c) the manner in which the originator of the electronic and digital
evidence was identified; and
(d) any other relevant factor.
(4) Electronic and digital evidence generated by a person in the ordinary course
of business, or a copy or printout of or an extract from the electronic and digital
evidence certified to be correct by a person in the service of such person, is on
its mere production in any civil, criminal, administrative or disciplinary proceedings
under any law, the rules of a self-regulatory organization or any other law or the
common law, admissible in evidence against any person and rebuttable proof of
the facts contained in such record, copy, printout or extract.
Evidence Law: Facts Requiring no Proof
Section 59-61 of the Kenya Evidence Act
FACTS REQUIRING NO PROOF
59. Facts judicially noticed
No fact of which the court shall take judicial notice need be proved.
59A. Agreement on facts not in issue
(1) If an accused person has appointed an advocate and, at any stage during
the proceedings, it appears to a prosecutor that a particular fact or facts which must
be proved in a charge against an accused person is or are not in issue or shall
not be placed in issue in criminal proceedings against the accused person, the
prosecutor may, forward or hand a notice to the accused person and his advocate
setting out that fact or those facts and stating that such fact or facts shall be deemed
to have been proved at the proceedings unless notice is given that any such fact
shall be placed in issue.
(2) The notice by the prosecutor under subsection (1) shall be sent by registered
mail or handed to the accused and his advocate personally at least fourteen
days before the commencement of the criminal proceedings or the date set for
the continuation of such proceedings, or within such shorter period as may be
approved by the court or agreed upon by the accused person or his advocate and
the prosecutor.
(3) If any fact mentioned in the notice under subsection (2) is intended to be
placed in issue at the proceedings, the accused person and his advocate shall at
least five days before the commencement or the date set for the continuation of
the proceedings, or within such shorter period as may be approved by the court
or agreed upon with the prosecutor, deliver a notice in writing to that effect to the
registrar or the clerk of the court, as the case may be, or orally notify the registrar
or the clerk of the court to that effect, in which case the registrar or the clerk of the
court shall record such notice.
(4) If, after receipt of the notice from the prosecutor under subsection (1), any
fact mentioned in that notice is not placed in issue as under subsection (3), the
court may deem such fact or facts, subject to subsections (5) and (6), to have been
sufficiently proved at the proceedings concerned.
(5) If a notice was forwarded or handed over by a prosecutor under subsection
(1), the prosecutor shall notify the court at the commencement of the proceedings
of such fact and of the response thereto, if any, and the court shall thereupon
institute an investigation into those facts which are not disputed and enquire from
the accused person whether he confirms the information given by the prosecutor,
and whether he understands his rights and the implications of the procedure and where the advocate of the accused person replies to any question by the court
under this section, the accused person shall be required by the court to declare
whether he confirms such reply or not.
(6) The court may on its own motion or at the request of the accused person
order oral evidence to be adduced regarding any fact contemplated in subsection
(4).
60. Facts of which court shall take judicial notice
(1) The courts shall take judicial notice of the following facts—
(a) all written laws, and all laws, rules and principles, written or unwritten,
having the force of law, whether in force or having such force as
aforesaid before, at or after the commencement of this Act, in any part
of Kenya;
(b) the general course of proceedings and privileges of Parliament, but
not the transactions in their journals;
(c) Articles of War for the Kenya Military Forces;
(d) deleted by L.N. 22/1965;
(e) the public seal of Kenya; the seals of all the courts of Kenya; and all
seals which any person is authorized by any written law to use;
(f) the accession to office, names, titles, functions and signatures of
public officers, if the fact of their appointment is notified in the Gazette;
(g) the existence, title and national flag of every State and Sovereign
recognized by the Government;
(h) natural and artificial divisions of time, and geographical divisions of
the world, and public holidays;
(i) the extent of the territories comprised in the Commonwealth;
(j) the commencement, continuance and termination of hostilities
between Kenya and any other State or body of persons;
(k) the names of the members and officers of the court and of their
deputies, subordinate officers and assistants, and of all officers acting
in execution of its process, and also of all advocates and other
persons authorized by law to appear or act before it;
(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 any written law to take judicial
notice.
(2) In all cases within subsection (1) of this section, and also on all matters of
public history, literature, science or art, the court may resort for its aid to appropriate
books or documents of reference.
(3) If the court is called upon by any person to take judicial notice of any fact,
it may refuse to do so unless and until such person produces any such book or
document as it considers necessary to enable it to do so.
61. Facts admitted in civil proceedings
No fact need be proved in any civil proceeding which the parties thereto or their
agents agree to admit at the hearing, or which before the hearing they agree, by
writing under their hands, to admit, or which by any rule of pleading in force at the
time they are deemed to have admitted by their pleadings:
Provided that the court may in its discretion require the facts admitted to be
proved otherwise than by such admissions.
Evidence Law: Character of the Accused Person
Section 55-57 of the Kenya evidence Act
CHARACTER
55. Character in civil cases
(1) In civil cases, the fact that the character of any person concerned is such
as to render probable or improbable any conduct imputed to him is inadmissible
except in so far as such character appears from facts otherwise admissible.
(2) In civil cases, the fact that the character of any person is such as to affect
the amount of damages, is admissible.
56. Good character in criminal cases
In criminal proceedings, the fact that the person accused is of a good character
is admissible.
57. Bad character in criminal cases
(1) In criminal proceedings the fact that the accused person has committed or
been convicted of or charged with any offence other than that with which he is then
charged, or is of bad character, is inadmissible unless—
(aa) such evidence is otherwise admissible as evidence of a fact in issue
or is directly relevant to a fact in issue; or
(a) the proof that he has committed or been convicted of such other
offence is admissible under section 14 or section 15 of this Act to show
that he is guilty of the offence with which he is then charged; or
(b) he has personally or by his advocate asked questions of a witness for
the prosecution with a view to establishing his own character, or has
given evidence of his own good character; or
(c) the nature or conduct of the defence is such as to involve imputations
on the character of the complainant or of a witness for the prosecution;
or
(d) he has given evidence against any other person charged with the
same offence:
Provided that the court may, in its discretion, direct that specific
evidence on the ground of the exception referred to in paragraph (c)
of this subsection shall not be led if, in the opinion of the court, the
prejudicial effect of such evidence upon the person accused will so
outweigh the damage done by imputations on the character of the
complainant or of any witness for the prosecution as to prevent a fair
trial.
(2) Notwithstanding the provisions of subsection (1) of this section, evidence of
previous conviction for an offence may be given in a criminal trial after conviction
of the accused person, for the purpose of affecting the sentence to be awarded
by the court.
Evidence Law: Opinion Evidence in Kenya
Section 48-54 of the Kenya Evidence Act
OPINIONS
48. Opinions of experts
(1) When the court has to form an opinion upon a point of foreign law, or
of science or art, or as to identity or genuineness of handwriting or finger or
other impressions, opinions upon that point are admissible if made by persons
specially skilled in such foreign law, science or art, or in questions as to identity, or
genuineness of handwriting or fingerprint or other impressions.
(2) Such persons are called experts.
49. Facts bearing upon opinions of experts
Facts not otherwise admissible are admissible if they support or are inconsistent
with the opinions of experts, when such opinions are admissible.
50. Opinion as to handwriting
(1) When the court has to form an opinion as to the person by whom any
document was written or signed, the opinion of any person acquainted with the
handwriting of the person by whom it is supposed to be written or signed that it was
or was not written or signed by that person, is admissible.
(2) For the purposes of subsection (1) of this section, and without prejudice to
any other means of determining the question, a person is said to be acquainted with
the handwriting of another person when he has seen that person write, or when
he has received documents purporting to be written by that person in answer to
documents written by himself or under his authority and addressed to that person,
or when in the ordinary course of business documents purporting to be written by
that person have been habitually submitted to him.
51. Opinion relating to customs and rights
(1) When the court has to form an opinion as to the existence of any general
custom or right, the opinions as to the existence of such custom or right of persons
who would be likely to know of its existence if it existed are admissible.
(2) For the purposes of subsection (1) of this section the expression “general
custom or right” includes customs or rights common to any considerable class
of persons.
52. Opinions of persons with special knowledge
When the court has to form an opinion as to—
(a) the usages and tenets of any association, body of men or family; or
(b) the constitution and government of any religious or charitable
foundation; or
(c) the meaning of words or terms used in particular districts or by
particular classes of people,
the opinions of persons having special means of knowledge thereon are
admissible.
53. Opinion on relationship
When the court has to form an opinion as to the relationship of one person to
another, the opinion, expressed by conduct, as to the existence of such
Evidence Law: Admissibility of electronic and digital evidence in Kenya
Below is section 78A of the Kenya Evidence Act which talks about admissibility of electronic evidence in Kenya.
78A. Admissibility of electronic and digital evidence
(1) In any legal proceedings, electronic messages and digital material shall be
admissible as evidence.
(2) The court shall not deny admissibility of evidence under subsection (1) only
on the ground that it is not in its original form.
(3) In estimating the weight, if any, to be attached to electronic and digital
evidence, under subsection (1), regard shall be had to—
(a) the reliability of the manner in which the electronic and digital evidence
was generated, stored or communicated;
(b) the reliability of the manner in which the integrity of the electronic and
digital evidence was maintained;
(c) the manner in which the originator of the electronic and digital
evidence was identified; and
(d) any other relevant factor.
(4) Electronic and digital evidence generated by a person in the ordinary course
of business, or a copy or printout of or an extract from the electronic and digital
evidence certified to be correct by a person in the service of such person, is on
its mere production in any civil, criminal, administrative or disciplinary proceedings
under any law, the rules of a self-regulatory organization or any other law or the
common law, admissible in evidence against any person and rebuttable proof of
the facts contained in such record, copy, printout or extract.
Evidence Law: Oral Evidence in Kenya
Below is Section 62-63A of the Kenya Evidence Act which deals with Oral evidence
62. Oral evidence
All facts, except the contents of documents, may be proved by oral evidence.
63. Oral evidence must be direct
(1) Oral evidence must in all cases be direct evidence.
(2) For the purposes of subsection (1) of this section, “direct evidence” means
—
(a) with reference to a fact which could be seen, the evidence of a witness
who says he saw it;
(b) with reference to a fact which could be heard, the evidence of a
witness who says he heard it;
(c) with reference to a fact which could be perceived by any other sense
or in any other manner, the evidence of a witness who says he
perceived it by that sense or in that manner;
(d) with reference to an opinion or to the grounds on which that opinion
is held, the evidence of the person who holds that opinion or, as the
case maybe, who holds it on those grounds:
Provided that the opinion of an expert expressed in any treatise
commonly offered for sale, and the grounds on which such opinion is
held, may be proved by the production of such treatise if the author is
dead or cannot be found, or has become incapable of giving evidence,
or cannot be called as a witness without an amount of delay or
expense which the court regards as unreasonable.
(3) If oral evidence refers to the existence or condition of any material thing,
other than a document, the court may, if it thinks fit, require the production of such
material thing for its inspection.
63A. Teleconferencing and video conferencing
(1) A court may receive oral evidence through teleconferencing and video
conferencing.
(2) The Chief Justice may develop regulations to govern the use of
teleconferencing and video conferencing.
(PDF)The Kenya Evidence Act Cap 80
or
Continue reading the Act online.
CHAPTER 80
EVIDENCE ACT
ARRANGEMENT OF SECTIONS
CHAPTER I – PRELIMINARY
Section
1. Short title.
2. Application.
3. Interpretation.
4. Presumptions of fact.
CHAPTER II – ADMISSIBILITY AND RELEVANCY
PART I – GENERAL
5. General restriction on admissibility of evidence.
6. Facts forming part of the 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 – ADMISSIONS
17. 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.
20A. Proof of written statement by consent.
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.
PART III – CONFESSIONS
25. 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. Repealed.
Section
29. Confessions to police officers.
30. Repealed.
31. Repealed.
32. Confession implicating co-accused.
PART IV – STATEMENTS BY PERSONS
WHO CANNOT BE CALLED AS WITNESSES
33. Statement by deceased person, etc., when
34. Admissibility of evidence given in previous proceedings.
PART V – STATEMENTS IN DOCUMENTS
PRODUCED IN CIVIL PROCEEDINGS
35. 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. Statements of fact contained in laws and official gazettes, etc.
41. Statements as to law contained in books.
PART VII – EXTENT TO WHICH STATEMENT IS ADMISSIBLE
42. Extent of admissibility.
PART VIII – JUDGMENTS
43. Judgments, etc., excluding jurisdiction.
44. 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 – OPINIONS
48. Opinions of experts.
49. Facts bearing upon opinions of experts.
50. Opinion as to handwriting.
51. Opinion relating to customs and rights.
52. Opinions of persons with special knowledge.
53. Opinion on relationship.
54. Grounds of opinion.
PART X – CHARACTER
Section
55. Character in civil cases.
56. Good character in criminal cases.
57. Bad character in criminal cases.
58. Definition of “character”.
CHAPTER III – PROOF
PART I – FACTS REQUIRING NO PROOF
59. Facts judicially noticed.
59A. Agreements on facts not in issue.
60. Facts of which court shall take judicial notice.
61. Facts admitted in civil proceedings.
PART II – ORAL EVIDENCE
62. Oral evidence.
63. Oral evidence must be direct.
63A. Teleconferencing and video conferencing.
PART III – DOCUMENTARY EVIDENCE
64. 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.
72. 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 geologists.
78. Photographic evidence—admissibility of certificate.
78A. Admissibility of electronic and digital evidence.
PART IV – PUBLIC DOCUMENTS
79. 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 DOCUMENTS
83. 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.
Section
89. Maps or plans.
90. Law 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 EVIDENCE
97. 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.
PART VII – ELECTRONIC RECORDS
106A. Section 106B to apply in proof of electronic records.
106B. Admissibility of electronic records.
106C. Proof as to a 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 signature certificates.
106I. Presumption as to electronic messages.
CHAPTER IV – PRODUCTION AND EFFECT OF EVIDENCE
PART 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. Repealed.
114. Repealed.
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.
PART II – COMPELLABILITY AND PRIVILEGES OF WITNESSES
128. 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 II – EXAMINATION OF WITNESSES
144. 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 WITNESSES
147. 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
165. 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 contemporaneous writing.
168. Reference to accurate contemporaneous record though facts 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 V – QUESTIONS BY ASSESSORS
174. Deleted.
CHAPTER VI – IMPROPER ADMISSION AND REJECTION OF EVIDENCE
175. Effect of improper admission or rejection.
CHAPTER VII – BANKERS’ BOOKS
176. 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 PROVISIONS
182. Saving for other laws.
183. Amendment of laws.
184. Repeals.
185. Cessation of application of Indian Evidence Act.
SCHEDULES
FIRST SCHEDULE – CERTIFICATE AS TO PHOTOGRAPHIC PRINT
OR ENLARGEMENT
SECOND SCHEDULE – ENACTMENTS REPEALED