Paged Evidence Act Cap. 80 - No. 46 Of 1963

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LAWS OF KENYAEVIDENCE ACTCHAPTER 80Revised Edition 2012 [2010]Published by the National Council for Law Reportingwith the Authority of the

[Rev. 2012]CAP. 80EvidenceCHAPTER 80EVIDENCE ACTARRANGEMENT OF SECTIONSCHAPTER I – PRELIMINARYSection1.2.3.4.Short title.Application.Interpretation.Presumptions of fact.CHAPTER II – ADMISSIBILITY AND RELEVANCYPART I – GENERAL5. restriction on admissibility of evidence.Facts forming part of the same transaction.Facts causing or caused by other facts.Facts relating to motive, preparation and conduct.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 or feeling.Facts showing system.Facts showing course of business.17.18.19.Admissions defined generally.Statements by party to suit or agent or interested person.Statements by persons whose position or liability must be proved as against partyto suit.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.PART II – ADMISSIONS20. III – CONFESSIONS25.25A.26.27.28.Confession defined.Confessions generally inadmissible.Confessions and admissions caused by inducement, threat or promise.Confession made after removal of impression caused by inducement, threat orpromise.Repealed.3[Issue 1]

CAP. 80[Rev. 2012]EvidenceSection29.30.31.32.Confessions to police officers.Repealed.Repealed.Confession implicating co-accused.PART IV – STATEMENTS BY PERSONS WHO CANNOT BE CALLED ASWITNESSES33.34.Statement by deceased person, etc., when—(a) relating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.Admissibility of evidence given in previous proceedings.PART V – STATEMENTS IN DOCUMENTS PRODUCED IN CIVIL PROCEEDINGS35.36.Admissibility of documentary evidence as to facts in issue.Weight to be attached to statement admissible under section in books of account.Entries in public records.Statements, etc., in maps, charts and plans.Statements of fact contained in laws and official gazettes, etc.Statements as to law contained in books.42.Extent of admissibility., etc., excluding jurisdiction.Judgments in rem.Other judgments of a public nature.Inadmissible judgments.Proof that judgment was incompetent or obtained by fraud or collusion.Proof of guilt. of experts.Facts bearing upon opinions of experts.Opinion as to handwriting.Opinion relating to customs and rights.Opinions of persons with special knowledge.Opinion on relationship.Grounds of opinion.PART VI – STATEMENTS UNDER SPECIAL CIRCUMSTANCESPART VII – EXTENT TO WHICH STATEMENT IS ADMISSIBLEPART VIII – JUDGMENTSPART IX – OPINIONS[Issue 1]4

[Rev. 2012]CAP. 80EvidencePART X – CHARACTERSection55.56.57.58.Character in civil cases.Good character in criminal cases.Bad character in criminal cases.Definition of “character”.CHAPTER III – PROOFPART I – FACTS REQUIRING NO PROOF59.60.61.Facts judicially noticed.Facts of which court shall take judicial notice.Facts admitted in civil proceedings.PART II – ORAL EVIDENCE62.63.Oral evidence.Oral evidence must be direct.PART III – DOCUMENTARY 78.Proof of contents of documents.Primary evidence.Secondary evidence.Proof of documents by primary evidence.Proof of documents by secondary evidence.Notice to produce a document.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.Admission of execution 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.Photographic evidence—admissibility of certificate. between public and private documents.Certified copies of public documents.Proof by certified copies.Proof of certain public documents. documents.Records of evidence.Gazette, etc., to be prima facie evidence.Gazettes, newspapers, and documents produced from proper custody.Publications generally.Documents admissible in England.PART IV – PUBLIC DOCUMENTSPART V – PRESUMPTIONS AS TO DOCUMENTS5[Issue 1]

CAP. 80[Rev. 2012]EvidenceSection89. or plans.Law and judicial reports.Powers of attorney.Certified copies of foreign judicial records.Books, maps and charts.Telegraphic messages.Presumption as to due execution, etc.Documents twenty years old.PART VI – EXCLUSION OF ORAL BY DOCUMENTARY en contracts and grants.Evidence of oral agreement.Evidence to explain a patent ambiguity.Evidence to show inapplicability.Evidence to explain a latent ambiguity.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.PART VII – ELECTRONIC I.Section 106B to apply in proof of electronic records.Admissibility of electronic records.Proof as to a electronic signature.Proof as to the verification of electronic signature.Presumption as to Gazette in electronic form.Presumption as to electronic agreements.Presumption as to electronic records and electronic signatures.Presumption as to electronic signature certificates.Presumption as to electronic messages.CHAPTER IV – PRODUCTION AND EFFECT OF EVIDENCEPART I– BURDEN OF urden of proof.Incidence of burden.Proof of particular fact.Proof of admissibility.Burden on accused in certain cases.Proof of special knowledge in civil proceedings.Repealed.Repealed.Disproving apparent special relationship.Disproving ownership.Proof of good faith.[Issue 1]6

[Rev. 2012]CAP. 80EvidenceSection118. Conclusive proof of legitimacy.118A. Presumption of death.119. Presumption of likely facts.PART II – ESTOPPEL120.121.122.123.General estoppel.Estoppel of tenant or licensee.Estoppel of acceptor of a bill of exchange.Estoppel of a bailee, licensee or agent.124.Corroboration required in criminal cases.PART III – EVIDENCE OF CHILDRENCHAPTER V – WITNESSESPART I – COMPETENCY OF WITNESSES125.126.127.Competency generally.Dumb witnesses.Competency of parties and of ordinary witnesses.Privilege of court.Communications during marriage.Privilege relating to official records.Privilege of official communications.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.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.144.145.146.Court to decide as to the admissibility of evidence.Types of examination of witnesses.Order and direction of examinations.PART II – COMPELLABILITY AND PRIVILEGES OF WITNESSESPART II – EXAMINATION OF WITNESSESPART IV – QUESTIONING OF WITNESSES147.148.149.150.Person called to produce a document.Witness to character.Meaning of leading question.Leading questions in examination-in-chief and re-examination.7[Issue 1]

CAP. 80[Rev. questions in cross-examination.Examination as to whether certain formal matters are contained in writing.Cross-examination as to previous written statements.Cross-examination as to credibility.Compulsion to answer questions as to credit.Cross-examination of accused person.Discretion of court to compel witness to answer questions as to credit.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.Circumstantial questions to confirm evidenceProof of consistency by former statements.Evidence to test statement of person not available as witness.PART V – REFRESHING OF MEMORY AND PRODUCTION OF DOCUMENTS167. memory by reference to contemporaneous writing.Reference to accurate contemporaneous record though facts themselves notspecifically recalled.Rights of adverse party as to contemporaneous writing.Production of documents of doubtful admissibility.Document produced in answer to notice to be given as evidence if required.Consequence of refusal to produce document in answer to notice.Extended powers of court for purpose of obtaining proper evidence.PART V – QUESTIONS BY ASSESSORS174.Deleted.CHAPTER VI – IMPROPER ADMISSION AND REJECTION OF EVIDENCE175.Effect of improper admission or rejection. of proof of entries in bankers’ books.Proof and verification of copy.Restriction on compelling production of banker’s book.Inspection of bankers’ books.Warrant to investigate.Costs. for other laws.Amendment of laws.Repeals.Cessation of application of Indian Evidence Act.CHAPTER VII – BANKERS’ BOOKSCHAPTER VIII – MISCELLANEOUS PROVISIONS[Issue 1]8


[Rev. 2012]CAP. 80EvidenceCHAPTER 80EVIDENCE ACT[Date of assent: 9th December, 1963.][Date of commencement: 10th December, 1963.]An Act of Parliament to declare the law of evidence[L.N. 22/1965, Act No. 17 of 1967, Act No. 8 of 1968, Act No. 10 of 1969, Act No. 13 of 1972,Act No. 14 of 1972, Act No. 19 of 1985, Act No. 7 of 1990, Act No. 14 of 1991, Act No. 9 of 2000,Act No. 5 of 2003, Act No. 3 of 2006, Act No. 7 of 2007, Act No. 1 of 2009, Act No. 12 of 2012.]CHAPTER I – PRELIMINARY1. Short titleThis Act may be cited as the Evidence Act.2. Application(1) This Act shall apply to all judicial proceedings in or before any court otherthan a Khadi’s court, but not to proceedings before an arbitrator.(2) Subject to the provisions of any other Act or of any rules of court, this Actshall apply to affidavits presented to any court.[Act No. 17 of 1967, First Sch., Act No. 10 of 1969, Sch.]3. Interpretation(1) In this Act, unless the context otherwise requires—“admissible” means admissible in evidence;“advocate” has the meaning ascribed to that expression in the AdvocatesAct (Cap. 16), and includes any person entitled, pursuant to section 9 of thatAct, to act as an advocate, whilst so acting in connection with the duties of hisoffice;“bank” means a person or company or other body of persons carrying on,whether on his or their own behalf or as agent for another, any bankingbusiness (as defined in section 2 of the Banking Act (Cap. 488)), andincludes—(a)a financial institution within the meaning of section 2 of the BankingAct (Cap. 488);(b)the Kenya Post Office Savings Bank established by the Kenya PostOffice Savings Bank Act (Cap. 493B);(c)the Co-operative Bank of Kenya Limited; and(d)for the purposes of subsections 176 and 177, any person orcompany or other body of persons carrying on banking business inTanzania or Uganda;“banker’s book” includes a ledger, day book, cash book, account book,and any other book used in the ordinary business of the bank, whether in11[Issue 1]

CAP. 80[Rev. 2012]Evidencewritten form or micro-film, magnetic tape or any other form of mechanical orelectronic data retrieval mechanism whether kept in written form or printoutsor electronic form;“computer” means any device that receives, stores and processes data,or information applying stipulated processes to the data and supplying resultsof that data or information; and any reference to information being derivedfrom other information shall be construed to include a reference to its beingderived therefrom by calculation, comparison or any other process;“court” includes all judges and magistrates, and persons, exceptarbitrators, legally authorized to take evidence;“evidence” denotes the means by which an alleged matter of fact, thetruth of which is submitted to investigation, is proved or disproved; and,without prejudice to the foregoing generality, includes statements by accusedpersons, admissions, and observation by the court in its judicial capacity;“fact” includes—(a)any thing, state of things, or relation of things, capable of beingperceived 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 connectionwith other facts, the existence, non-existence, nature or extent of any right,liability or disability, asserted or denied in any suit or proceeding, necessarilyfollows;“Gazette” and “Government Printer” deleted by Act No. 7 of 1990, Sch.;“public officer” deleted by Act No. 7 of 1990, Sch.(2) A fact is proved when, after considering the matters before it, the courteither believes it to exist, or considers its existence so probable that a prudentman ought, in the circumstances of the particular case, to act upon thesupposition that it exists.(3) A fact is disproved when, after considering the matters before it, the courteither believes that it does not exist, or considers its non-existence so probablethat a prudent man ought, in the circumstances of the particular case, to act uponthe supposition that it does not exist.(4) A fact is not proved when it is neither proved nor disproved.[L.N. 22/1965, Act No. 19 of 1985, Sch., Act No. 7 of 1990, Sch., Act No. 9 of 2000, s. 64,Act No. 1 of 2009, s. 36.]4. Presumptions of fact(1) Whenever it is provided by law that the court may presume a fact, it mayeither regard such fact as proved, unless and until it is disproved, or may call forproof of it.(2) Whenever it is directed by law that the court shall presume a fact, it shallregard such fact as proved, unless and until it is disproved.[Issue 1]12

[Rev. 2012]CAP. 80Evidence(3) When one fact is declared by law to be conclusive proof of another, thecourt shall, on proof of the one fact, regard the other as proved, and shall notallow evidence to be given for the purpose of disproving it.CHAPTER II – ADMISSIBILITY AND RELEVANCYPART I – GENERAL5. General restriction of admissibility of evidenceSubject to the provisions of this Act and of any other law, no evidence shall begiven in any suit or proceeding except evidence of the existence or nonexistence of a fact in issue, and of any other fact declared by any provision of thisAct to be relevant.6. Facts forming part of the same transactionFacts which, though not in issue, are so connected with a fact in issue as toform part of the same transaction are relevant whether they occurred at the sametime and place or at different times and places.7. Facts causing or caused by other factsFacts which are the occasion, cause or effect, immediate or otherwise, ofrelevant facts or facts in issue, or which constitute the state of things under whichthey happened or which afforded an opportunity for their occurrence ortransaction are relevant.8. Facts relating to motive, preparation and conduct(1) Any fact is relevant which shows or constitutes a motive or preparation forany fact in issue or relevant fact.(2) The conduct of any party, or of any agent of a party, to any suit orproceeding, in reference to such suit or proceeding or in reference to any fact inissue therein or relevant thereto, and the conduct of any person an offenceagainst whom is the subject of any proceeding, is relevant, if such conductinfluences or is influenced by any fact in issue or relevant fact, and whether itwas previous or subsequent thereto.(3) When evidence of the conduct of a person is relevant any statementmade to him, or in his presence and hearing, which affects such conduct, isrelevant.(4) The word “conduct” in this section does not include statements, unlessthose statements accompany and explain acts other than statements.9. Explanatory or introductory facts, etc.Facts necessary to explain or introduce a fact in issue or relevant fact, orwhich support or rebut an inference suggested by such a fact, or which establishthe identity of any thing or person whose identity is relevant, or fix the time orplace at which any fact in issue or relevant fact happened, or which show therelation of parties by whom any such fact was transacted, are relevant in so faras they are necessary for that purpose.13[Issue 1]

CAP. 80[Rev. 2012]Evidence10. Statements and actions referring to common intentionWhere there is reasonable ground to believe that two or more persons haveconspired together to commit an offence or an actionable wrong, anything said,done or written by any one of such persons in reference to their commonintention, after the time when such intention was first entertained by any one ofthem, is a relevant fact as against each of the persons believed to be soconspiring, as well for the purpose of proving the existence of the conspiracy asfor the purpose of showing that any such person was a party to it.11. Facts inconsistent with, or affecting probability of, other factsFacts not otherwise relevant are relevant—(a)if they are inconsistent with any fact in issue or relevant fact; or(b)if by themselves or in connection with other facts they make theexistence or non-existence of any fact in issue or relevant fact highlyprobable or improbable.12. Facts affecting quantum of damagesIn suits in which damages are claimed, any fact which will enable the court todetermine the amount of damages which ought to be awarded is relevant.13. Facts affecting existence of right or customWhere the existence of any right or custom is in question, the following factsare relevant—(a)any transaction by which the right or custom in question wascreated, claimed, modified, recognized, asserted or denied, or whichwas inconsistent with its existence; or(b)particular instances in which the right or custom was claimed,recognized or exercised, or in which its exercise was disputed,asserted or departed from.14. Facts showing state of mind or feeling(1) Facts showing the existence of any state of mind, such as intention,knowledge, good faith, negligence, rashness, ill-will or good-will towards anyparticular person, or showing the existence of any state of body or bodily feeling,are relevant, when the existence of any such state of mind or body or bodilyfeeling is in issue or relevant.(2) A fact relevant within the meaning of subsection (1) of this section asshowing the existence of a state of mind must show that the state of mind exists,not generally, but in reference to the particular matter in question.(3) Where, upon the trial of a person accused of an offence, the previouscommission by the accused of an offence is relevant within the meaning ofsubsection (1) of this section, the previous conviction of such person is alsorelevant.15. Facts showing systemWhen there is a question whether an act was accidental or intentional, ordone with a particular knowledge or intention, the fact that such act formed partof a series of similar occurrences, in each of which the person doing the act was

Act No. 5 of 2003, Act No. 3 of 2006, Act No. 7 of 2007, Act No. 1 of 2009, Act No. 12 of 2012.] CHAPTER I – PRELIMINARY 1. Short title This Act may be cited as the Evidence Act. 2. Application (1) This Act shall apply to all judicial proceedings in or before any court other than a Khadi’s court, but not to proceedings before an arbitrator.

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