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LAWS OF KENYAEVIDENCE ACTCHAPTER 80Revised Edition 2012 [2010]Published by the National Council for Law Reportingwith the Authority of the Attorney-Generalwww.kenyalaw.org

EvidenceCAP. 80

[Rev. 2012]EvidenceCAP. 80CHAPTER 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Repealed.E17-3[Issue 1]

CAP. 80Evidence[Rev. 2012]Section29.30.31.32.Confessions to police officers.Repealed.Repealed.Confession implicating co-accused.PART IV – STATEMENTS BY PERSONSWHO CANNOT BE CALLED AS WITNESSES33.34.Statement by deceased person, etc., whenAdmissibility of evidence given in previous proceedings.PART V – STATEMENTS IN DOCUMENTSPRODUCED IN CIVIL PROCEEDINGS35.36.Admissibility of documentary evidence as to facts in issue.Weight to be attached to statement admissible under section 35.PART VI – STATEMENTS UNDER SPECIAL CIRCUMSTANCES37. 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.PART VII – EXTENT TO WHICH STATEMENT IS ADMISSIBLEPART VIII – JUDGMENTS43., 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.PART IX – OPINIONS48. 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.[Issue 1]E17-4

[Rev. 2012]EvidenceCAP. 80PART 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.62.63.Oral evidence.Oral evidence must be direct.PART II – ORAL EVIDENCEPART 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 DOCUMENTSE17-5[Issue 1]

CAP. 80Evidence[Rev. 2012]Section89. 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]E17-6

[Rev. 2012]EvidenceCAP. 80Section118.118A.119.Conclusive proof of legitimacy.Presumption of death.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.PART II – COMPELLABILITY AND PRIVILEGES OF WITNESSESPART II – EXAMINATION OF WITNESSES144.145.146.Court to decide as to the admissibility of evidence.Types of examination of witnesses.Order and direction of examinations.PART 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.E17-7[Issue 1]

CAP. 80Evidence[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.174.Deleted.PART V – QUESTIONS BY ASSESSORSCHAPTER 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.CHAPTER VII – BANKERS’ BOOKSCHAPTER VIII – MISCELLANEOUS PROVISIONS182.183.184.185.Saving for other laws.Amendment of laws.Repeals.Cessation of application of Indian Evidence Act.[Issue 1]E17-8


CAP. 80[Issue 1]EvidenceE17-9[Rev. 2012]

[Rev. 2012]EvidenceCAP. 80CHAPTER 80EVIDENCE ACT[Date of assent: 9th December, 1963.][Date of commencement: 10th December, 1963.]An Act of Parliament to declare the law of evidence[Act No. 46 of 1963, 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, ActNo. 7 of 1990, Act No. 14 of 1991, Act No. 9 of 2000, Act No. 5of 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 that Act,to act as an advocate, whilst so acting in connection with the duties of his office;“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 banking business(as defined in section 2 of the Banking Act (Cap. 488), and includes—(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 KenyaPost Office 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 businessin Tanzania 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 in writtenform or micro-film, magnetic tape or any other form of mechanical or electronicdata retrieval mechanism whether kept in written form or printouts or electronicform;“computer” means any device that receives, stores and processes data, orinformation applying stipulated processes to the data and supplying results ofE17-9[Issue 1]

CAP. 80Evidence[Rev. 2012]that data or information; and any reference to information being derived fromother information shall be construed to include a reference to its being derivedtherefrom 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, withoutprejudice to the foregoing generality, includes statements by accused persons,admissions, and observation by the court in its judicial capacity;“fact” includes—(a) any thing, state of things, or relation of things, capable of 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”respectively include the Gazette andthe Organization Printer as defined in the Interpretation Act of the HighCommission, and the High Commission Printer as formerly so defined;“public officer”except in section 80 of this Act, includes an officer in theservice of the Organization.(2) A fact is proved when, after considering the matters before it, the court eitherbelieves 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.(3) A fact is disproved when, after considering the matters b

EVIDENCE ACT [Date of assent: 9th December, 1963.] [Date of commencement: 10th December, 1963.] An Act of Parliament to declare the law of evidence [Act No. 46 of 1963, 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

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