Introduction

In civil and criminal cases, where there is non- admissibility of liability or plea of not
guilty. The parties involved in such proceedings have to prove a variety of facts.
The facts that have to be proved are determined by the substantive law concerned. This in
turn determine the facts in issue and any relevant fact to the fact in issue, in both instances,
the parties must establish their case by presenting to the court their evidence.

Section 3(1) of the Evidence Act Cap 80, 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 from accused persons ,
admissions, and observations by the court in its judicial capacity

Documentary evidence can be referred to a evidence produced in court in the form of

documents. Article 260 of the Constitution of Kenya 2010, a document has been described to
include any matter expressed or described upon any substance by means of letters, figures
or marks or by one of those means, intended to be used or which may be used for the
purpose of recording that matter and Electronic files.
In simple terms documentary evidence means and/or refers to all documents produced for the
inspection of the court.

Documents are thus classified into two categories;

1) Public documents.
2) Private documents.

PUBLIC DOCUMENTS

Public documents as described under the dictates of section 79(1)(a) and (b) entail documents
forming the acts or record of the acts

a) Of the sovereign authority;

b) Of official bodies and tribunals;
c) Of public officers, legislative, judicial or executive, whether of Kenya or of any
other country;
d) Public records kept in Kenya of private documents.

It can therefore be deduced that public document(s) means a document that is made for the
purpose of the public making use of it expecially where there is a judicial or quasi judicial
duty to inquire.

PRIVATE DOCUMENTS

As provided under section 79(2), private documents are all other documents other than
public documents.
How does one proof the contents of a document intended to be used and/or admitted into evidence?

Proof of the contents of a document entered or intended to be admitted as evidence is envisaged

under Section 64 of the Evidence Act, which provides thus “The contents of documents may be
proved either by primary or by secondary evidence.”

Primary evidence
Provided for under section 64(1) of the Evidence Act to mean production of the document
intended to be used and/or admitted into evidence in court for the court to scrutinize. Further,
where the document is executed in several parts, each part is a primary evidence of the
document.

However, there is an exception to this position, which is provided for under the provisions of
section 65(4) to include among others;

a) Where the document is produced in counterpart, each counterpart being executed by

one of the parties only;
b) A number of documents are made by one uniform process as in the case of printing,
lithography, or photocopy each is a primary evidence of the contents of the rest

Secondary evidence

As provided for under section 66 of the Evidence Act, it entails;

a) Copies made from original by mechanical process which in themselves ensure the
accuracy of the copy, and copies compared with such copies;
b) Copies made from or compared with the original;
c) counterparts of documents as against the parties who did not execute them;
d) oral accounts of the contents of a document given by some person who has himself
seen it.

It is worth noting that all Documents must be proved by primary evidence in that it must be
produced for the inspection of the court. Exeptions are as listed under section 67 of the
evidence act to include where the same can be proven vide secondary evidence.

ADMISSIBILITY OF DOCUMENTARY EVIDENCE

The document which is provided by the party to be received in evidence as proof of the fact or
information it asserts is to be first admitted by the court. The court for that matter relies upon
the statutory provision in relation to the admission of documentary evidence. 

The admission of a document will thus depend of factors such as proof of the contents of the
documentary evidence and proof of genuiness of the document to be admitted as evidence.

1. Proof of the contents of the documentary evidence.

This is provided for under the dictates of section 35 of the Evidence Act where it is stated In
any civil proceedings where direct oral evidence of a fact would be admissible, any statement
made by a person in a document and tending to establish that fact shall, on production of the
original document, be admissible as evidence of that fact if the following conditions are
satisfied;

a) notwithstanding that the maker of the statement is available but is not called as a
witness;
b) notwithstanding that the original document is not produced, if in lieu thereof there is
produced a copy of the original document or of the material part thereof certified to be
a true copy in such manner as may be specified.

A witness must be examined in order to proof the content and/or the document, therefore
evidence of the contents of a document are deemed to be hearsay unless the author is
examined before the court.

2. Proof of genuineness of the document

These can be deduced from a perusal of sections 70-78 of the evidence Act

It simply denotes that where there is signature or writing, seal or mark of attestation where
the later is a necessary formality of execution, it must be proved.

ELECTRONIC RECORD EVIDENCE

There is the advancement of technology resulting advanced methods of capturing, storing,

retrieving , receiving and analyzing information by the use of computers.

Under the provisions of section 106B of the evidence Act, it is provided thus any
information contained in an electronic record which is printed on paper, stored, recorded or
copied on optical or electro-magnetic media produced by a computer shall be deemed to be
also a document,

Tapes and audios are generally not admitted in evidence as a document since it is generally
not easy to prove the owner of the voice in the said tape recording; the maker of the tape
recording; the circumstance under which the recording was and/or is made and finally the
time of which the tape recording is made however if the same can be proved and/or validated
then such tapes and audios can be admissible.

APPLICATION OF DOCUMENTARY EVIDENCE IN CIVIL LITIGATION.

Under the dictates of Order 3, rule2 of the Civil procedure rules, documents to accompany a
suit are provided for to include among others; (c) written statements signed by the witnesses
excluding expert witnesses and copies of documents to be relied on at the trial…

Under Order 7 , rule 5 of the Civil procedure rules, the documents to accompany a defense or
counterclaim are provided for to include (c) written statements signed by the witnesses
excluding expert witnesses and copies of documents to be relied on at the trial…
Under the dictates of Order 16, rule 6 of the Civil Procedure Rules “Any person may be
summoned to produce a document without being summoned to give evidence; and any person
summoned merely to produce a document shall be deemed to have complied with the
summons if he causes such document to be produced instead of attending personally to
produce the same.”

Similarly under Order 16, rule 7, any person present in court may be required by the court to
give evidence or to produce any document there and then in his possession or power.

APPLICATION OF DOCUMENTARY EVIDENCE IN CRIMINAL LITIGATION.