BURDEN OF PROOF

What is burden of proof? The term burden of proof draws from the Latin Phrase Onus
Probandi and when we talk of burden we sometimes talk of onus.
Burden of Proof is used to mean an obligation to adduce evidence of a fact. According to
Phipson on the Law of Evidence, the term burden of proof has two distinct meanings
1. Obligation on a party to convince the tribunal on a fact; here we are talking of the
obligation of a party to persuade a tribunal to come into ones way of thinking. The
persuasion would be to get the tribunal to believe whatever proposition the party
is making. That proposition of fact has to be a fact in issue. One that will be critical
to the party with the obligation. The penalty that one suffers if they fail to proof their
burden of proof is that they will fail, they will not get whatever judgment they require
and if plaintiff they will not sustain a conviction and if defendant no relief. There will
be a burden to persuade on each fact and maybe the matter that you failed to persuade
on is not critical to the whole matter so you can still win.
2. The obligation to adduce sufficient evidence of a particular fact. The reason that
one seeks to adduce sufficient evidence of a fact is to justify a finding of a particular
 matter. This is the evidential burden of proof. The person that will have the legal
burden of proof will almost always have the burden of adducing evidence.

Section 107 of Evidence Act

Defines Burden of Proof –

Of essence to burden of proof is proving the matter in court.

(2) Refers to the legal burden of proof.

S. 109. – Specifically exemplifies the Rule in S. 107 and it talks about proof of a particular
fact. It is to the effect that the burden of proof as to any particular fact lies on the person
who wishes to rely on its existence. Whoever has the obligation to convince the court is the
person said to bear the burden of proof. If you do not discharge the burden of proof then
you will not succeed in as far as that fact is concerned.

Cases that exemplify Burden of Proof

Ryde v. Bushell pg. 8 course outline

The defendant was seeking to rely on the defence of act of God and the court held that if a person
wished to rely on defence of act of God one has to establish it through aid.

Omar Mohiddin V. Sikuthani Pg. 8

Where it is neither readily appreciated nor known that you are married to somebody the burden
of proving that you are so married lies on you. The total essence of proof is that the burden is on
the one who wishes to prove that they are married

11th Case Course outline

Hakam Bibi v. Mistry
Kimani v. Gikanga

The principle is that if you want to rely on personal law, you have to establish what that law is.
In Kimani a person sought to rely on customary law and if you are relying on customary law you
have to establish what the law is.

Commissioner of Income Tax v. Baku

The principle is the same as in Valabras Shamzi v. Commissioner of Income Tax these two
cases establish the principle that if you dispute tax on the basis that it is excessive, the burden of
proof is on you. It is not up to the Commissioner to establish that it is excessive but it is in your
interest to adduce evidence before the case to determine to what extent it is excessive.

If you are the person with a legal obligation to establish a matter then the burden of proof is on
you.

GENERAL RULE:

The general rule is that burden of proof is borne by the Plaintiff in Civil cases and by the
Prosecution in Criminal Cases.

Joseph Mbithi Maula v. R

In this particular case the 1st Appellant was convicted for handling cows stolen by the 2nd
Appellant. The trial Magistrate said in the course of his judgment ‘None of the accused disputed
the fact that the cows mentioned in the three counts belong to the Respondent owners and they
had been stolen from their bomas during the material nights. They did not dispute the identity
and ownership of the cows therefore I find all this as facts.’ The High Court affirmed the
conviction but the court of Appeal found that the statement of the trial magistrate was a mis-
direction. In the words of the Court of Appeal it was up to the prosecution to prove that the cows
were stolen. In criminal cases the burden of proof has to be beyond reasonable doubt, having
doubt or suspicion is not enough. In the words of the Court of Appeal, the mere fact that the
accused kept quiet did not approve of the matters.

Alois Nyasinga v. R

In that case which was a murder trial, there was evidence that at the time that the appellant
committed the offence he was drunk. He had stabbed the deceased the deceased in the neck
inflicting him with a fatal wound. The trial judge directed himself and the assessors that it was
for the appellant to prove that he was so inebriated as to be unable to form the intent to kill.

On appeal, the decision of the first court was reversed by the Court of Appeal who said that the
trial court had misdirected itself and the assessors on the matter of intent. The Judge should have
explicitly told the assessors that it was not for the Appellant to prove that he was so drunk he
could not form intent to kill or hurt the deceased. It was the duty of the prosecution to prove that
the Appellant was not so affected as to be incapable of forming intent. even though if a person is
trying to establish a defence and one wants the court to excuse them from having done
something, say murder and you want to plead self defence, or insanity, while it is incumbent for
you to bring the matter before the court, it does not discount the prosecution’s duty to establish
the intent.

Woolmington v. DPP

The accused was charged with the murder of his wife. He gave evidence that he had accidentally
shot her. the trial court directed the jury that once it was proved that the accused shot his wife,
he bore the burden of disproving malice aforethought (intention). On Appeal to the House of
Lords it was stated that the trial court direction was not appropriate, that it was a misdirection,
and stated as follows: ‘throughout the web of English criminal law one golden thread is
always to be seen. That is the duty of the prosecution to prove the prisoner’s guilt subject to
what I have said as to the defence of insanity and subject also to any statutory exception.
He continues to say that no matter what the charge or where the trial the principle that the
prosecution must prove the guilt of the prisoner is part of the law of England and no
attempt to whittle it down can be entertain.”

In Woolmington you will see intimations as exceptions to the general rule.

BURDEN OF PROOF IN CIVIL CASES

The principle is that burden of proof in civil cases rests with the plaintiff.

Joseph Constantine Steamship Line v. Imperial Smelting Co. Ltd. [1942] A.C 154

In this case the plaintiff; Charterers of a ship claimed damages from the owners for failure to
load. The defendants pleaded that the contract had been frustrated by destruction of the ship
owing to an explosion the cause of which was unclear. Such frustration would have concluded
the case in favour of the defendants in the absence of any fault on their part. The trial court held
that the onus of proving or the burden of proving that frustration was induced by the defendant or
by their default lay on the plaintiffs. The Court of Appeal reversed this finding holding that it
was up to the defendants to establish that the frustration was not induced by their default. The
case went to the House of Lords where the Appeal was allowed the House of Lords holding that
the burden of proving that there was default on the part of the owners lay upon the plaintiffs.

What we are saying that burden of proof by and large in civil cases is going to lie on the plaintiff.
Levison & Another v. Patent Steam Carpet Cleaning Co. [1978] QB 79

The defendants were guilty of unexplained loss of a Chinese carpet which had been delivered to
them for cleaning and which belonged to the plaintiff. A clause in the contract signed by the
plaintiffs would have exempted the defendants from liability for negligence but not for any
fundamental breach. The plaintiff sued the cleaners for loss of carpet. The trial court gave
judgment against the cleaners. They appealed and it was held on appeal that in a bailment
contract when a bailee seeks to escape liability on the ground that he was not negligent, or that
he was excused by an exception or limitation clause, then he must prove what happened to the
goods. Having failed to satisfactorily explain the circumstances surrounding the loss of the
carpet, the carpet cleaner was liable.

Burden of proof is on plaintiff in civil cases.

EXCEPTIONS TO THE GENERAL RULE IN CIVIL CASES

What are the circumstances you have the burden of proof lying on the respondent? These are
provided for in S. 112 which relates to facts within the special knowledge of a party to the
proceedings.
1. It is to the effect that if it is alleged that the facts are especially within the
knowledge of a party, the burden of proving those will lie on such party.
So it may happen that in the course of proceedings, there are certain facts that happen to be
within the special knowledge of the respondent and the burden on prove will be on the
respondent.

The second exception is contained in S. 115 of Evidence Act which relates to disproving
apparent special relationship. This section is to the effect that,
2. When there is an apparent relationship between 2 or 3 people, the burden of
proving that there is no such relationship is on the person alleging that the
relationship does not exist.
For instance if the question is whether there is a party averring that that there is no relationship
between for instance a landlord and tenant.

S. 116 this relates to disputing ownership.

3. This section is to the effect that when you are shown to be in possession of
anything, the burden of proving that you are not the owner of that which you
possess will be on the person alleging that you are not the owner. This exception is
explained away on the difficulty that one might visit on the people who would be under
threat of people coming in and disputing ownership.

Section 117 which deals with prove of good faith

4. Where there is a question as to the good faith of a transaction between parties one
of whom stands to the other in the position of active confidence, the burden of
proving good faith of the transaction is on the person who stands in the position of
active confidence in relation to the client.

EXCEPTIONS TO GENERAL RULE IN CRIMINAL CASES

The burden of proof lies in the prosecution

The constitution in S. 77 2 (a) provides that a person charged with any offence is presumed to be
innocent unless he pleads guilty or is proved guilty by the prosecution. This provision imposes
burden of proof on the prosecution. It is up to the prosecution to prove the guilt of the accused
unless the accused pleads guilty. Where one pleads guilty, there is no contestation.

To buttress this presumption is S. 77 (12) (a) nothing in any law shall be construed as being in
conflict with S. 77 (2) (a) if the law in question imposes the burden of proof in specific parts on
an accused person. This section saves the statutory provisions that there might impose burden of
proof on accused persons on specific facts.

What are the instances where specific facts require to be proved by an accused?

S. 111 (1) K. E.A.

1. If you are charged with an offence and you are in a position of claiming that you
are exempted from liability for that kind of offence, it is your duty to bring the
circumstances to the notice of the court. It is incumbent upon you to prove a fact.
There is a derogation that the burden of proof in criminal cases lies on the
prosecution. For instance if you have diplomatic immunity you must bring it to the
attention of the court for the exemption.

R. .v, Hunt (1987) 1 ALR 1

The accused was charged with unlawful possession of a prohibited drug. The relevant statute
provided that it would not apply to any preparation containing not more than 0.2% of the drug.
The defence submitted that there was no case to answer since the prosecution had not adduced
evidence as to the percentage of the prohibited substance found on the accused. The defence was
overruled and on appeal the court of appeal dismissed the appeal but at the House of Lords it was
stated that
1. A statute can place a burden of proof on an accused person and it can do this either
explicitly or implicitly.
2. A statute may be construed as imposing the burden of proof on an accused person but
such a construction depends on the particular legislation.
3. The statute however cannot be taken to impose the duty on an accused to prove his
innocence in a criminal case.
4. Public policy in this particular case favoured the position that the burden of proof was
on the accused person.
The Appeal was allowed.

2. S. 111 (2) (c) intoxication or insanity

2. The accused bears the burden of proof of intoxication or insanity if an accused

person claims that he was so intoxicated as to be insane, he has to prove that but
the duty of the accused only goes as far as proving that he was intoxicated and does
not go to the level of proving that he could not form an intent.

Godiyana Barongo s/o Rugwire v. R

Defence of insanity through intoxication

The burden resting upon an accused person when attempting to rebut a natural presumption
which must prevail until the contrary is proven will never be the same as that resting upon the
prosecution to prove the facts which they have to establish. It will not be higher than the burden
which rests on a plaintiff in civil cases.

Nyakite s/o Oyugi v. R[1959]

In this case the evidence of the defence and the prosecution showed that the accused was
intoxicated but the accused did not raise intoxication as a defence. The trial judge said that the
burden of raising a defence of intoxication so as to negative intent was on the accused person.
On Appeal, it was held that this statement was a misdirection and that the onus of establishing a
defence is not on an accused person, if there is evidence of intoxication the court must consider it
and determine whether it negative intent. The prosecution has to show that the intoxication was
not as high as to negative intent.

Nyamweru s/o kinyaboya v. R. (1953)

The appellant was in an advanced state of intoxication when he killed his wife with a knife. He
was convicted of murder. On Appeal it was held that whilst the plea of intoxication is a matter
for the defence, there can be circumstances pointing to such a condition arising out of the
prosecution case. The use of a lethal weapon may indicate a malicious intent but it is not
conclusive of an intent to murder. It gave an example where the accused is so drunk that they are
not able to form the intent not withstanding the use of a lethal weapon.

Malungu s/o Kieti v. R

Where the accused was convicted of murder and evidence established that the appellant was
drunk by the time he killed. The assessors were of the opinion that the appellant was incapable
of forming the intent necessary to constitute the offence of murder but the trial judge took the
view that the onus of rebutting the presumption that he was capable of forming the necessary
intent to kill was on the appellant. On Appeal it was held that the burden of proving that an
accused is capable of forming the intent necessary to constitute the offence of murder always
remains on the prosecution. So even when the defence raises the defence of intoxication, the
burden of prove is still on the prosecution.

R v. Kamau s/o Njoroge

R v. Saidi Kabila Kiunga

There are other statutes apart from the Evidence Act that place burden of proof on the accused.
1. The Public Order Act which is to the effect that the burden of proving lawful or
reasonable excuse or lawful authority is upon the person alleging the same.
2. The Prevention of Corruption Act Cap 65 which provides that any money paid or gift
given to a public servant shall be deemed to have been paid or offered corruptly as an
inducement or reward unless the contrary is proved.
3. The Immigration Act, which is to the effect that in any proceedings under the
Immigration Act if the question in issue is
(i) whether a person is or is not a citizen of Kenya, or
 (ii) whether or not a person is a diplomat or wife of child of such or
(iii) whether or not any person has been issued or granted a passport,
certificate, entry permit, pass, authority or consent under the Act or
(iv) whether or not any person is at any time entitled to any such issue of right
the burden of proof will lie on the person contending that they are so
entitled.

4. The Public Health Act, - every person while suffering from a venereal disease in any
communicable form or continues in employment in or about any factory shop, hotel,
restaurant, house or other place in any capacity entailing the care of children or handling
of food of food utensils intended for use of consumption by any person shall be guilty of
an offence unless he proves that he did not know or suspect or had no reasonable means
of knowing or suspecting that he was so suffering. It is an offence for any person to
employ such a person, the defence would be for the employer to prove that they did not
know that the employee was sick.

5. Stock and Produce Theft Act – any person who has in his possession any stock
reasonably suspected of being stolen or unlawfully obtained shall if he fails to prove to
the satisfaction of the court, that he came by the stock lawfully shall be guilty of an
offence and liable to conviction.

6. Wildlife Conservation & Management Act – it is an offence to be found with or to be

dealing with Game Trophies and the person charged under this Act has the burden of
proving lawful possession for dealing with such gain.

Those are the exceptions to the general rule that he burden of proof lies on the prosecution.

Section 108 E.A incidence of the burden of proof. It lies on that person who would fail if at all
…
STANDARD OR DEGREE OF PROOF

The question is what level of cogency or conviction should evidence attain before the court can
act in favour of the person who bears the burden of proof.

In criminal cases when the burden of proof is on the prosecution the standard of proof is beyond
reasonable doubt. The question has arisen as to what is reasonable doubt?
Miller v. Minister of Pensions [1947] 2 ALL ER

In this case Lord Denning tried to explain what reasonable doubt would mean he said ‘the degree
is well settled. It need not reach certainty, but it must carry a high degree of probability. He
continues ‘proof beyond reasonable doubt does not mean proof beyond a shadow of doubt the
law would fail to protect the community if it admitted fanciful probabilities or possibilities to
deflect the course of justice. If the evidence is so strong against a man as to leave only a remote
possibility, in his favour which can be dismissed with a sentence ‘of course it is possible but not
in the least probable’, then the case is proved beyond reasonable doubt.’

Lord Denning continues “it must carry a reasonable degree of probability but not as high as is
required in criminal cases. If the tribunal can say ‘we think it more probable than not,’ the
burden is discharged but if the probabilities are equal, the burden is not discharged. Degree of
cogency in burden of proof required is less than in criminal law.

Other people have said that reasonable doubt is the doubt of men of good sense not of imbeciles
or fools.

In criminal cases where the accused bears the burden of proof, we have already stated that the
standard of proof is on a balance of probability.

The burden of proof in civil matters is on a balance of probabilities.

Where you have cases of fraud for instance if the allegation involves criminal conduct, the
degree required is going to be higher. There is a spectrum level of degrees.
R.G. Patel v. Lalji Makanji [1957] E.A. 314

The court in this case stated that allegations of fraud must be strictly proved although the
standard of proof may not be so heavy as to require proof beyond reasonable doubt, something
more than a mere balance of probabilities.

In a matrimonial offence, there is a variation in the standard of proof. If you are relying on
adultery to get your divorce, the standard of proof is beyond reasonable doubt, you have to catch
them flagrante delicto.
In Wangari Mathai v. Andrew Mathai it was stated that if you are relying on the offence of
adultery the court must prove guilt beyond reasonable doubt or so as to feel sure that the guilt
had been proved. The Appellant had argued that there was no direct evidence of adultery and on
Appeal it was argued that the degree of adultery had not been proved but the decision was
upheld. The court relied on circumstantial evidence to find guilt.

Maherdavan v. Maherdavan [1964] p233 [1962] 3 ALL ER 617

A ceremony had been celebrated between the parties in Ceylon. Two of the requirements of the
local law were solemnisation of the marriage by a registrar, either in his office or in another
authorised place and, during the ceremony, an address by the registrar to the parties on the nature
of the union. The parties cohabited as if man and wife for a short period of time and the husband
acknowledged the wife as such. Seven years after the first ceremony, the husband went through
another ceremony of marriage with another woman in England and the validity of the first
marriage came into question. According to the marriage certificate, the marriage had been
solemnized by a registrar in his office, but the wife gave evidence that the marriage had taken
place at her patents house and there was no evidence of the requisite address by the registrar of
parties. Rejecting as irrational legal chauvinism an argument of counsel for the husband that
there was no presumption in favour of a foreign marriage the establishment of which would
invalidate a subsequent English one, Sir, Jocelyn Simon P applied the presumption and held the
foreign marriage to be formally valid.
In 1980, T and M were married in London, UK. In 1985, the couple returned to Kenya,
whereafter a short stay, M proceeds to USA for post-graduate studies. For 7 years, T does not
hear from M. In 1993, T gives up on waiting for Ms’ return. She (T) meets with F and out of a
desperate love they get immediately married.

Shortly thereafter, T meets with J, an old friend just returned from the USA. J confirms to T that
M is living in the US with an American lady. In 1996, T sues F for divorce. In his defence, F
asserts that their marriage is a nullity because in 1993, T was still legally married to M.
Unfortunately F cannot trace J to testify. T has evidence that M may
have been married previously to A in 1978 and that A is still alive.

Advice T and F.

The presumption of marriage will arise where there has been a ceremony of marriage which has
been subsequently cohabitated. If the parties had capacity to contract a marriage then the law
presumes that they are validly married. Presumption of marriage can also be established through
ceremony and cohabitation. The formal validity of a marriage depends upon the lex loci
celebrationis i.e. the law of the place where one purports to have gotten married and failure to
comply with the formal requirements of the local law may make a marriage void. Once it is
admitted that a marriage was celebrated between 2 persons who intended to marry then the
formal validity is presumed to exist.

On advice to T, beginning with the marriage of T and M, it will be presumed that T and M were
validly married in London in 1980. The presumption of marriage is a very strong presumption,
rebuttable only by strong evidence that will go beyond a mere balance of probability. For
instance in the decided case of Piers V. Piers the couple got married in a private dwelling house
while the law required as a prerequisite for the validity of such a marriage that a special licence
be obtained. The Pierses did not get that kind of licence and when the marriage turned sour, the
validity of the marriage was questioned. It was held that the presumption of marriage in favour
of the legality of marriage is not to be lightly repelled. The evidence against it or evidence to
rebut it must be strong, distinct, satisfactory and conclusive. The presumption of marriage is not
lightly repelled and requires evidence that can satisfy the court beyond reasonable doubt as was
held in Mahadervan V. Mahadervan where was held that the court must be satisfied beyond
reasonable doubt if a presumption of marriage is to be rebutted.
Evidence of a prior marriage may suffice to rebut a presumption of marriage and therefore if T is
able to prove that M may have been married previously to A in 1978, this would nullify T’s
marriage to M in London. If M had been previously married to A it would mean that the
marriage between T and M was a nullity and therefore F cannot assert that T had been legally
married to M when they got married and F therefore has to consider giving M her divorce as it
would mean that the marriage to M was void and whether M is alive or not, T was legally
married to F and was thus entitled to a divorce. T has to have strong evidence of for instance a
marriage certificate and corroborating evidence to prove that M had been previously married to
A which would make her marriage to M void and her marriage to F legit thereby earning her a
divorce from F.
In Chard V. Chard (1956) 2 AER 259 parties to a marriage celebrated in 1933 sought decrees of
nullity on the grounds that the husband had been through a marriage ceremony in 1909. The first
wife in respect of whom there was no evidence of ill health or registration of death was last heard
of in 1917 and would be aged 44 in 1933. There were reasons which might have led her not to
wish to be heard of by her husband or his family in that between 1917 and 1933 the husband was
continually in prison. The question was whether one could presume that she was dead and
therefore hold this marriage of 1933 valid. The court held that there was no evidence of a person
who would have been likely to have heard of the first wife between 1917 and 1933 and
consequently the presumption of death was inapplicable in which case the nullity would not go
through but they would have to bring in more evidence.

In WANJIKU V. MACHARIA [1968] Wanjiku petitioned for maintenance from Macharia calling
to her aid a marriage certificate. The two had gotten married in 1963, stayed together as husband
and wife until the relationship turned sour. She had testified on oath that she had been married to
another man in 1953 or thereabouts. The court held that they would not presume marriage
because all that was required to rebut presumption of marriage by cohabitation was some
evidence that leads the court to doubt the validity of marriage. In the words of the court,
Wanjiku had no validity of marriage.
F wants his marriage to T declared a nullity on the fact that M who was validly married to T in
London in 1978 is not dead since J claims to have seen him living with an American woman in
America.

Section 118 (a) of The Evidence Act Cap 80 Laws of Kenya states that where it is proved that
a person has not been heard of for seven years by those who might be expected to have heard of
him if he were alive, there shall be a rebuttable presumption that he is dead.

For presumption of death to be established, the court will consider whether there are people who
would be likely to have heard from the person presumed to be dead in over seven years, and
whether they have actually heard from that person and whether all due inquiries have been made
as appropriate in a given circumstance.

The next thing that the court will want to consider is whether M is still alive and whether he has
had communications with people that he ought to be in touch with namely family and relatives or
can M be presumed to have died since T had not heard from him in over 7 years. The court will
need prove that the people who could have heard from M have not heard or seen M in over 7
years. The court will also need evidence that T has made all efforts to reach M and that M has
not been heard from in over 7 years, and that all efforts to reach M have been fruitless.

Is the evidence of J that he met M in United States living with another woman credible? Can J
be called to give evidence that M is alive and living in the United States with another woman? If
J can be found and agree to testify, the Judge may be convinced by J’s evidence not to presume
that M is dead so it will depend on the trial Judge.

F has to rebut the presumption that his marriage to T is valid with the argument that T was
validly married to M who is not dead and who is living in the United States of America with an
American woman. To be able to rebut the presumption that M is still alive, F will have to find J
who is the last known person to have seen M and who can rebut the presumption that M is dead.
The rebuttal must be cogent and has to be supported by evidence. The court must be satisfied
beyond reasonable doubt in order for the presumption to be rebutted. Evidence that T had been
married to M and that that marriage is still valid may suffice. F has an uphill task of proving that
M is still alive without the evidence of J and will have to look for J to give evidence that M is
alive in the United States of America and living with an American woman to rebut the
presumption that M can be presumed dead.

The outcome will depend on what kind of evidence T has that M could have been married to A
before they met and if the evidence is cogent, the marriage between T and m will be nullified as
this means that M was already married to A when he met T and the marriage in London to T is
therefore invalid. In the absence of evidence from T about M’s prior marriage to A, F will have
to find J to give evidence to rebut the presumption of the death of M to prove that his marriage to
T was void and therefore a divorce will not be necessary.
THE BURDEN OF PROOF

The term “burden of proof” comes from the Latin phrase Onus probandi, hence in
practice the terms burden of proof and onus are used interchangeably.

1. The meaning of burden of proof

“The burden of proof has only one primary meaning. It is a metaphorical phrase
indicating an obligation to prove a fact or facts. This obligation necessarily involves the
adduction of evidence in an attempt to prove a fact, subject to occasional cases when a fact
can be established without evidence. Thus the primary meaing of the burden of proof is an
obligation to adduce evidence of a fact. ....

In whatever may the phrase may be defined, the obligation is not enforced by any
direct sanction. The penalty for failure to fulfil the duty, or to discharge the burden, is the
risk of failure in the whole or a part of the litigation.”
NOKES, AN INTRODUCTION TO EVIDENCE (4th Edn.), pp. 456-6.

Another meaning of “burden of proof is the burden of adducing evidence, or the

burden of going forward with the evidence. This distinction may be seen from Art 5 of
CROSS AND WILKINS, AN OUTLINE OF THE LAW OF EVIDENCE, p. 26:-
1. The burden of proof must be distinguished from the burden of adducing evidence.
2. The incidence of the burden of proof (i.e. the question which party bears it) is dependent
on the substantive law. At the trial of a civil action, it is borne by the plaintiff on the
facts pleaded by him and not admitted by the defendant. At a criminal trial, it is borne
by the prosecution on every issue except that of insanity and issues on which the burden
of proof is cast on the accused by statute.
3. The burden of adducing evidence is generally borne by the party bearing the burden of
proof, but, in criminal cases, the accused bears the burden of adducing evidence in
support of many of the defences that would be open to him on the strength of his plea of
not guilty.
WILSON’S MANUAL OF EVIDENCE (8th Edn.), p. 184 notes the distinction as follows:-

“The expression ‘burden of proof’ has two meanings which are distinct, but frequently
confused. One meaning is the obligation in a party to convince the tribunal of fact (whether
by preponderance of evidence or beyond reasonable doubt) of the truth of some preposition of
fact which is in issue and which is vital to his case. This obligation may be called ‘the burden
of proof on the pleadings. The penalty for failure to discharge this burden is the certainity of
failure in the whole or some part of the litigation. The other meaning is the obligation to
adduce sufficient evidence on a particular is under the obligation, which may be termed ‘the
burden of adducing evidence,’ or ‘the evidential burden’. Failure to discharge the
evendential burden carries the risk, but not the certainity, of failure in the whole or some part
of the litigation. Success in discharging the obligation shifts the evidential burden onto the
opposing party.

It will readily be appreciated that it is of crucial importance to determine upon which

party rests the burden of proof, in either sense in which that expression is used; and in a case
where there is little or no evidence of the facts in issue, the determination of this question may
well be decisive of the result of the proceedings.”

The law of the burden of proof in Kenya is set forth in ss.115 K.E.A. Included in
the subject is the question of submissions, that situation in which certain facts are
presumed
to be true until the contrary is proven, or which are presumed conclusively to be true.

b. “Prima facie case”

 The term prima facie is from the Latin meaning “of first appearance” 9OSBORN),
or “at first sight” which come into usage in the late Niddle English period (OXFORD
ENGLISH DICTIONARY). A prima facie case is based on prima facie evidence.
OSBORN gives a general definition of prima facie case as:-

“A case in which there is some evidence in support of a charge or allegation made in it, and
which will stand unless it is displaced. In a case which is being heard in court, the party
starting, that is, upon whom the burden of proof rests, must make out a prima facie, or else
the other party will be able to submit that there is no case to answer, and the case will have to
be dismissed.”

SARKAR on p. 29 says:-

“Prima facie evidence is evidence which, if accepted, appears to be sufficient to establish a

fact unless rebutted by acceptable evidence to the contrary. It is not conclusive.”

In a criminal case the legal onus is always on the prosecution to prove its case
beyond reasonable doubt. (For one statement only, see Ramanial T. Bhatt v R., ‘[1957]
E.A. 332, 334 (C.A). A case proved “beyond reasonable doubt” should not be confused with
a prima facie, or a case to answer as provided for in s.211 CP.C.

Section 210 C.P.C. as amended by Act No. 13 of 1967 reads:-

210. If at the close of the evidence in support of the charge, and after hearing such
summing up, submission or argument as the prosecutor, the accused person or his advocate
may wish to put forward, it appears to the court that a case is not made out against the
accused person sufficiently to require him to make a defence, the court shall dismiss the
case and shall forthwith acquit him.

The “case to answer” which must be made out against the accused before s.211
C.P.C. becomes operative and the accused is required to make a defence must be a prima
facie case. See Murimi v R., [1967] E.A. 542, 546 (C.A) where the court, discussing the
equivalent provisions of the Tanganyika C.P.C.

“The provisions of s.205 are mandatory and if at the close of the prosecution’s case a prima
facie has not been made out the accused person is entitled to be acquitted.”

c. When is a prima case established?

The leading decision on this question is Ramnlal T. Bhatt v R., [1957] E.A. 332
(C.A). There the appellant, a sub-inspector of police, had been charged on two counts of
official corruption. At the trial the magistrate considered that a “fragment of evidence”,
namely “Have you got Shs.1,000/=? was not sufficient to justify’ his calling on the defence
on thecount of soliciting and though evidence on the second count was strong he though it
did not constitute proof of the charge as laid. He therefore discharged the appellant on
both counts. The Attorney General appealed to the High Court by way of case stated and
obtained an order remitting the case to the same magistrate with a direction to put the
appellant on his defence in respect of both counts and to hear and determine the case
according to law. At the resumed trial the appellant was convicted. The Court of Appeal,
discussing and disagreeing in part with passages from the judgment of WILSON, J in R v.
Jagjivan K. Patel and Others, (1948), I.T.L.R 85, said:-

“Remembering that the legal onues is always on the prosecution to prove its case
beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the
close of the prosecution, the case is merely one ‘which full consideration might possible be
thought sufficient to sustain a conviction’. This is perilously near suggesting that the court
would not be prepared to convict if no defence is made, but rather hopes the defence will
fill the gaps in the prosecution case.

Nor can we agree that the question whether there is a case to answer depends only
on whether there is ‘some evidence, irrespective of its credibility or weight, sufficient toput
the accused on his defence’. A mere sointilla of evidence can never be enought: nor can any
amount of worthless discredited evidence. It is true, as WILSON, J said, that the court is
not required at that stage to decide finally whether the evidence is worthy of credit, or
whether if believed it is weighty enough to prove the case conclusively: that final
determination can only properly be made when the case for the defence has been heard. It
may not be easy to define what is meant by a ‘prima facie’ case but at least it must mean
one on which a reasonable tribunal, properly directing its mind to the law and the evidence
could convict if no explanation is offered by the defence” (emphasis added).

Bhatt’s case has been quoted and applied in R v. Rootes (Kenya) Ltd. [1958] E.A. 13(K);
Remat Nanji Ahmed v. R., [1959] E.A. 804 (p); Wibiro alias Musa v. R [1960] E.A. 184
(C.A.) where the Court at p. 187 clearly stated “It is abundantly clear that ‘a prima facie
case’ does not mean a case proved beyond reasonable doubt”, and Murimi v. R [1967] E.A.
542 (C.A.) which also considered the situation where a prima facie case has not been made
cut at the close of the prosecution case and the court either calls witnesses in order to
establish the case against the accused or calls for the defence, which then calls evidence
establishing the built of the accused. See pp. 545-6.

BROWN CRIMINAL PROCEDURE IN UGANDA AND KENYA, p.93 summarises

the position as follows:-

“The magistrate does not of courtse have to decide whether the accused is guilty at this stage.
He applied his mind in the same way as in a preliminary inquiry. All that he needs to do is
decide whether a case is made out sufficiently to require the accused to make his defence. It
may be a strong case or it may be a weak case. In cases of doubt as to the weight of the
prosecution case, the magistrate is justified in calling upon the accused to make his defence.
But there must be a prima facie case. That is to say if there is sufficient evidence upon which
the court convict if no explanation is offered by the defence, the magistrate calls upon the
accused to make his defence.”

d. Burden of proof in the K.E.A. - general sections.

107. (1) whoever desires any court to give judgment as to any legal right or liability
dependent on the existence of facts which he asserts must prove that those facts exist.
(2) when a person is bound to prove the existence of any fact it is said that the burden of
proof lies on that person.

.........................

It has been noted earlier that the penalty for failure to discharge the obligation to
prove facts may result in a failure in the whole or part of the litigation. A good example is
the case of Damadar Jamnadas v Noor Valji, [1967] E.A. 615 (C.A.), wherein Moneylender
made a loan to borrower, which was granted in writing by Guarantor. Borrower failed to
repay the loan, and Moneylender sued Guarantor to force him to make good on the
security. Section 11 of the Moneylenders Ordinance (Cap 307) provided that no security
given by a borrower is enforceable unless a note or memorandum in writing of the contract
is made, signed personally by the borrower, and a copy of the contract is made, signed
personally by the borrower, and a copy of the contract is delivered or sent to the borrower
within 7 days of making the contract. Hard Moneylender failed to produce the required
note or memorandum in court and the case was decided in favour of Guarantor.

On appeal Moneylender argued that since the defence that the required note or
memorandum had not been produced had been raised by Guarantor, he (Guarantor) had
the onus of proving that Moneylender had failed to comply with the provisions of s.11 and
the onus was not upon him to prove affirmatively that he had, in fact, complied. On appeal
it was held that under s.11 the production of the note of memorandum in court was a
condition precedent to the enforcement of the contract of security, ie a condition which mut
be met before enforcement. Since in this case secondary evidence was not admissible,
Moneylender could not give oral evidence concerning the making of the note or
memorandum. Thus since s.11 required that Moneylender produce the note in court, the
last sentence of s.101 I.E.A. (S.107 k.E.A..) and ss. 102 and 103 (ss. 108 and 109 K.E.A..)
clearly placed the burden of proof on Moneylender to prove that the note had been signed
and delivered to Borrower, and did not prove this burden on Guarantor. Since the amount
involved was 36,500/= it can be seen that the decision on the question of on whom the
burden of proof lay was one of consideratble importance.

Incident of the burden of proof.

108. The burden of proof in a suit or proceeding lies on that person who would fail if no
evidence at all were given on either side.

...................................

Section 108 sets forth the test for determining on whom the burden of proof lies in a
particular case. In a criminal case, as noted, the burden lies upon the prosecution to prove
its case beyond reasonable doubt. In a civil case, generally the burden of proof lies on the
plaintiff, for if no evidence were given for either side, obviously the plaintiff would have no
grounds for legal relief.

Examples:-

A. A sues B for possession of an automobile, presently in the possession of B. A alleges that

the automobile belongs to him and is only on loan to B. If no evidence is given on either
side, the case would be decided in favour of B and the automobile would remain in his
possession, hence A has the burden of proof.
B. A sues B for money due on a note. B admits that he signed the note, but asserts that it
was obtained by fraud in as much as he is illiterate and could not read the note, a fact
which he claimes was in the knowledge of A. If no evidence were given on either side, A
would succeed, in as much as B has admitted that he signed the note, and the alleged
fraud has not been proved by evidence.

SARKAR at pp. 873 - 4 notes that the sense of the term “burben of proof” as used in s.108
is the duty of adducing evidence:
“It lies at first on that party who would be unsuccessful if no evidence at all were given on
either side. This being the test, this burden of proof cannot remain constant but must shift
as soon as he produces evidence which prima facie gives rise to a presumption in his favour.
It may be given shift back on him if the rebutting evidence produced by his opponent
prependerates. This being the position, the question as to onus of proof is only a rule for
deciding on whom the obligation rests of going further, if he wishes to win’. (Jones, s.176).
‘As the proceedings go on, the burden of proof may be shifted from the party on whom it
rested at first by his proving facts which raise a presumption in his favour’ (Steph. Art.
95)...”

“It is not always easy to determine at what particular point the onus shifts from the
plaintiff to the defendant and then back again from the defendant to the plaintiff and then
once again from the latter to the former and so on; the more so in contested proceedings as
evidence gradually continues to be adduced, but at the conclusion of the trial when the
issues come to be judged it has to be seen, whether the initial onus which s.101 casts on the
plaintiff have been discharged or not. It would wholly wrong to allow the burden of proof
to be shifted by a redundant averment in the pleading or by an incautions acceptance of an
issue framed upon that averment. The court ought to consider whether the burden lies in
law. The evidence required to shift the burden need not necessarily be direct evidence i.e.
oral or documentary evidence or admissions of opposite party; it may comprise
circumstantial evidence or presumptions of law or fact. The amount of evidence required
to shift the burden of proof depends on the circumstances of each case.”

“... The true test of onus in the case of ‘shifting’ has been put thus by LORD HANSWORM,
N.R.:-

‘It appears to me that there can only be sufficient evidence to shift the onus from one side to
the other if the evidence is sufficient prima facie to establish the case of the party on whom
the onus lies. It is not merely a question of weighing feathers on the one side and of saying
that if there were two feathers on one side and one on the other that would be sufficient to
shift the onus. What is meant is, that in the first instance the party on whom the onus lies mut
prove his case sufficiently to justify a judgment in his favour if there is no other evidence.’
Stoney v. Eastbourne R. D. Council, 1927, 1 Ch. 367, 397.

It can be seen from the above that much will depend upon the pleading in a
particular case, not only in determining who will have the burden under s.108, but as to
who must first present evidence. For example, in Nanlal Vrajdas v Chunilal Dhanji Mehta,
promisory note which the defendant admitted he had made and signed in favour of the
plaintiff, but which he alleged was given for an illegal consideration. Having admitted the
note, the defendant was called on to begin, and the onus of proving what is alleged was
placed on him.

Another case illustrative of “shifting” is Fakhruddin Mohammed Ali Affarji v.

Ahmedali Abdulhussein Lukmanji, (1946), 13 E.A.C.A. in which involved a claim of money
under a mortgage deed which contained 3 recital containing acknowledgment of
consideration by the mortgager. The mortgager pleaded that the mortgage deed was a
fictitious document and that he had never received money. The mortgagor gave evidence in
support of his contention but the mortgager did not, and the suit was dismissed. On appeal
it was said that the onus was on the mortgager to establish that the remital in the mortgage
deed was incorrect, and that having succeeded in doing so, the onus shifted back to the
mortgagee to have the existence of consideration, which he had failed to do.

See alsoMulji Jetha Ltd. v. Commissioner of Income Tax, [1966] E.A. 159, 262 (K) where
the Court used the following language:-

“It can be argued to the contrary, that while the overall burden of proof is on the appellant,
once it has produced what on its face is a valid and regular declaration of trust and the
presumptive or provisional burden of proof chifts to the respondent to show that the
declaration is inaeffective. This the respondent has failed to do and so the appellant should
succeed.”

Proof of a particular fact

109. The burden of proof as to any particular fact lies on the person who wishes the court
to believe in its existence, unless it is provided by any law that the proof of that fact shall lie
on any particular person.

.............................

This section is an amplification of the general rule in s.107 but deals with the
burden of proving particular facts. Thus if the prosecution wishes to prove a case by the
isolated fact of an admission made by an accused, or if it wishes to prove that as a fact in
addition to independent oral testimony, it must prove it. Similarly, an accused relying on
an alibi must prove it, or if lawful excuse is relied upon, as incases involving possession of
stolen property when the accused alleges that he innocently purchased the goods from a
market or a particular person, the burden of proving such is upon him.

Example:-

A prosecute B for theft, and wishes the court to believe that B admitted the theft to C. A
must prove the admission. B wishes the court to believe that, at the time in question, he
was elsewhere, he must prove it.

Proof of admissibility

110. The burden of proving any fact necessary to be proved in order to enable any person
to give evidence of any other fact is on the person who wishes to give such evidence.

...............................

SARKAR on p.877 notes that “This is a roundabout way of saying that no one shall
be entitled to give evidence of any fact without first showing that he is legally entitled to do
so”. Thus if there are conditions precedent to the admissible of certain kinds of evidence,
as in the case of s.33 K.E.A. statements by persons who cannot be called as witnesses, the
requirements for admission of the evidence must be proved before the evidence is
admissible.

The section should, however, he read in connection with s.144 K.E.A., especially
subs.(4) which governs the procedure to be used:-

(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
the second fact is proved, or require evidence to be given of the second fact before evidence
is given of the first fact.

Thus while the order of introduction of fact A and fact B is in the discretion of the
magistrate, whether fact B will be admitted in evidence still depends upon fact A being
admitted, and the person wishing to introduce fact B has the burden of proving fact A.

In Commissioner of Customs v S.K. Panachand, [1961] E.A. 303 (ed.), the company
imported some blankets, allegedly from West Germany, to import licence was required for
goods from West Germany, although a licence was required for goods from other countries.
The Customs seized the blankets acting on information that they, in fact, had come from
East Germany. The Company, seeking to return of the blankets, in order to support its
case produced two documents, an invoice, and a document signed by a Mr. Blok in which it
was stated that the invoice, on which appeared the words “Country of Origin - Wes
Germany” was correct. The Company claimed that these documents satisfied the burden
placed upon it by the Customs Act, i.e to prove the country of origin of the blankets.

The decision involved s.32(b) I.E.A (s.33(b) K.E.A), covering cases where the
attendance of a witness cannot be procured without unreasonable delay and expense,
subs(b) dealing with statements or documents made in the ordinary course of business.
The main issue was whether the invoice and document signed by Mr. Blok were admissible
is evidence to prove country of origin.
 The Court held basically that the “any person” who will “give evidence of any other
fact” in this case, as set forth ins.110 I.E.A was Mr. Blok, who, by means of his signed
document would give evidence of the “other fact”, i.e. that the blankets came from West
Germany. Before Mr. Blok could “give evidence “through the media of the documents,
s.110 placed the burden upon the Company proving:-

a) that Mr. Blok’s attendance at the trial could not be procured without unreasonable delay
or expense,
b) that Mr. Block’s signed document was used in the course of business, and
c) that the document was actually signed by Mr. Blok, the person whose attendance it was
unreasonable to procure.

Since the Company had failed to meet its burden of proving these conditions precedent to
the admission of the documents they were held not admissible in evidence and the Court
ordered condemnation of the blankets.

e. Cases illustrating the application of rules on the burden of proof

The following cases are illustrative of the application of the rules regarding the
burden of proof. Those cases involving legislation should be treated with caution owing to
the possibility of repeal or amendment of the sections noted.

Act of God

L. Besson v Esaji Allibhoy, (1906), 2 E.A.L.R. 8. Where the loss of ship is

apparently due to an Act of God the onus of proof of negligence is on the person so
contending.
 Ryde v Bushell, [1967] E.A 817 (C.A.). Breach of covenant to plant coffee. “It is for
the person setting up the plear of act of God to prove the various facts which constitute an
Act of God@. (p.820)

Appeal

Shaw v R. [1963] E.A. 400 (U). On appeal against a conviction on ground of

misdirection as to the facts, the onus is on the appellant to show that the findings are
unreasonable and cannot be supported having regard to the evidence.

Bankruptcy

Patel v Uganda, [1966] E.A. 311 (C.A). Appellant was charged with failing to keep
proper books of account within a period of three years prior to the date of the presentation
of a bankruptcy petition contrary to s.140(1) of the Bankruptcy Act (Cap.71) of Uganda. It
was conceded that during the material period proper books had not been kept and the sole
question which arose for consideration was whether the ommission to keep proper books
came within the proviso of s.140(1) which provides that such omission shall not be an
offence if it is hones and excusable. Held, the onus was on the sccused to show on the
balance of probabilities that the failure to keep proper books was excusable.

Bills of Exchange

Fakhri Stores Ltd vs London Confirmers Ltd., [1965] E.A 159 (e.d). Bills of
Exchange Act (Cap.27) of Kenya, s.64(1). Held that the onus is on a plaintiff suing on bills
of exchange which have patently been altered in a material respect to prove that the
defendant was privy to the alteration.
 Raishi Mezhji Dhanani v Amratlal Hirchand Ltd., (1953), 26 K.L.R. 18.
Endorsement in blank on a bill of exchange stroked out. Necessity of specifically pleading
defence of lack of endorement. Bills of Exchange Ord. (Cap. 291) of Kenya. Burden of
proof on defence to establish that the endorsement had been cancelled before negotiation
made the plaintiff firm.

Bulk Sales

Ramsanali v Madhanji & Bros. and Another, (1952), 7 U.L.R. 37. The onus of
proving a sale was not in contravention of the Bulk Sales Ordinance lies on the purchaser.
The onus of proving that the person seeking to set aside a sale under the Ordinance was a
creditor prior to the sale lies on that person.

Common Calamity

Admin-General v Khalifan bin ElBattashy, [1963] E.A. 230, 231 (z). When two
individuals perish in a common calamity and the question arises as to who died first, in the
absence of evidence on the point, there is no presumption that the younger survived the
elder. Such a question is always from first to last a pure question of fact of the onus
probandi lying on the party who asserts the affirmative.

Consideration

Santa Singh v M. Thakar Singh, (1934), 1 E.A.C.A. 137. Where holder of a note
with interest at 3% signed a document to the effect that he would charge the borrower
interest at only 11/2, the onus of proving want of consideration for the document was on the
holder of the note.

Fakhruddin Mohamedali Jafferji v Ahmedali Abdulhussein Lukmanji, (1945), 13

E.A.C.A 77. Claim on money under a mortgage deed. Recital in deed containing
acknowledgement of consideration. Held, that the onus was on the mortgagor to establish
that the recital was incorrect and that having succeeded in doing so, the onus shifted back
to the mortgagee to prove the existence of consideration.

Contract

Re Shariff Fazal Essa, (1909), 1 Z.L.R. 268. Wagering contract. S.30 Zanz. Contract
Decree, corresponding to s.30 Indian Contract Act. Semble, the onus of proof does not rest
on the person alleging that the contract is a wager.

Walji Jetha Kanji v Elias Freed, [1959] E.A. 1071 (C.A). Appellants sued
respondents for money due under a building contract, and for additional work.
Respondent’s defence was that building work was not completed to his satisfaction, and
counterclaim for loss of rent due to delay in completion and defective work. Held, the onus
was on the appellants to establish the amount to which they were entitled under the
contract and this they had failed to do, and that appellants also had the onus to show that
they were not responsible for defect in concrete work on the canopies.

Customary and personal law

In re: Hassanhali Jadayji (1941), 1 T.L.R. (R) 729. Where one contends that there is
a “special custom recognized and adopted by the deceased’s co-religionists” governing
succession, the onus of proof is on the person so contending.

Omar Mohidin v Sikuthani, (1914), 2 U.L.R. 91. Appellant sought declaration that
he was legally married to the respondent by Mohammedan rites. Held, that the onus of
proof of such marriage was upon the appellant.

Pazi v Mohamed, [1968] E.A 111, 113(T). There being evidence of ontinual
cohabitation as husband and wife sufficient to raise the presumption of marriage in Islamic
Law, the onus was on the respondent to produce evidence to show that there was, in fact, no
marriage between the persons.

Hakam Bibi v Mistry Fateh Mahommed, (1955), 28 K.L.R.. 91. The onus of proving
personal law in a matrimonial cause is on the person seeking to satisfy the court that the
personal law should be applied.

Kimani v Gikanga, [1965] E.A. 735 (C.A). The onus of establishing customary law
is on the party relying on it.

Nyamgunda v Kihwili, [1967] E.A. 212 (T). Paternity; customary law in Tanganyika
Primary Courts prevails over I.E.A and English cases, with the burden of proving
innocence upon the defendant once the girl has named him as father of the child.

Mtoro bin Mwamba v Attorney-General, (1953), 20 .E.A.C.A. 108. Where it is

alleged that a particular tribe has a different law and custom from the permissive
occupational right generally recognized by tribes in East Africa, recognized on individual
right of ownership equivalent to frecheld tenure as know to English Law, the onus of proof
is upon the person who so alleges.

Damages

Said bin Sultan bin Mchamed el Subhi v Jokha binti Sultan bin Salum el Miskiria,
(1955), 22 E.A.C.A. 273. Except where the quantum of damages is conceded and the only
issue is that of liability, the question of the amount of damages is always in issue, and is a
matter for proof by the plaintiff.

Defence raised

Choitram v H.G Dadlani, [1958] E.A. 641 (C.A.). Action for account. Defence that
vouchers destroyed by plaintiff’s agent. Held, the burden of proving that the respondent
was liable to account lay on the appellants, and they had discharged that burden; the onus
then rested on the respondent to show, if he could, that he was released from his liability by
certin actions of the appellants.

Detinue

Amritlal Hansraj Sheth v Nathwani, [1960] E.A. 447 (C.A.). Held, that the trial
judge was justified in rejecting evidence of both parties and therefore was right in holding
that the case fell to be determine on the basis of the burden of proof. In cases of detinue,
where the ownership of the plaintiff is admitted and possession has lawfully be acquired by
the defendant, and where the dispute is upon the immediate right to possession, the burden
of proving an immediate right to possession lies on the plaintiff.

Divorce

Mallinson v Mallinson, [1961] E.A. 185 (C.A.). Desertion; husband employed away
from matrimonial home; wife refused to join husband. Hold, that the burden of proof,
which is heavier than in an ordinary civil actopm, lay on the husband, and the evidence
here fell short of establishing an animus deserendi on the part of the wife. See also:
Campbell MoNeili v Ruth MoNeill, (1952), 19. E.A.C.A. 89; Stjernholm v Stjernholm,
(1955), 28 K.L.R 183. For burden of proof on allegation of impotence, see A v B., (1932): 14
K.L.R 109. (Note: the above cases are illustrative only and are in no way intended to be a
complete collection of situations concerning matrimonial causes).

Document

The Uganda Native Trading Co. Ltd vs Aguste Muwemba, (1956), 23 E.A.C.A. 62.
The onus of proving the effectiveness and validity of a document is upon the party relying
on it.
 Mocsaji Tayabali v Suleman bin Nassor bin Khelef, (1942), 9 E.A.C.A 29. Held, that
evidence to vary the plaint meaning of a deed of sale formally drawn by a lawyer should be
clear and unequivocal. Where a document on its face and in its terms if clearly and
admittedly a deed of sale and not a mortgage and where it had been held that the
surrounding circumstances do not vary the plain language of the document, a heavy onus
rests upon a person to override the plaint and accepted meaning of the document and the
oral evidence must be strong and certain to be of any use.

Domicil

Santhumayor v Santhumayor, [1959] E.A. 204 (U). Abandonment of domicil of

origin, acquiring fresh domicil. Held, the burden of proving a change from the domicil of
origin to a domicil of choice is not light, and taking all the factors into consideration the
petitioner had failed to prove that he had acquired a Uganda domicil with that “perfect
clearness” which English cases prescribe as necessary before a court can accept that the
domicil of origin has been lost. See also on comicil: Taylor v Taylor and Ueberueck, (1941),
1 T.L.R. (R) 737, on appeal, (1944), 11E.A.C.A 46; Zimbler v Zimbler, (1948), 15 E.A.C.A
10 (As in the case of divorce, cases noted are illustrative only and are not intended to
comprise a complete selection).

It should be further noted that the Report of the Commission on the Law of
Marriage and Divorce contains a Appendix VI a draft Bill to declare and amend the law
relating to domicil in Kenya, and domicil as it affects the right to invoke the jurisdiction of
courts in matrimonial causes (divorce, separation, declaratory decrees, maintenance,
custody and children and other matrimonial relief) is found in s.87 of the draft Bill for the
Law of Matrimony Act, proposed by the Commission, Appendix VIII of the Report.

Elections
 Mbowe v Eliufoo, [1967] E.A 240(T). Under the National Assembly (Elections) Act,
1964, s.99 (T), the burden of proof lay on an unsuccessful candidate in an election seeking
an order that the election was null and void.

Forgery

Nadhan Singh v Pritam Singh, (1954), 21 E.A.C.A. 82. In a suit on a promissory

note the respondent as administrator of a deceased person, denied that a signature on the
note was that of the deceased. At the beginning of the trial the counsel for the
plaintiff/appellant submitted that as the only defence was one of forgery, the defendant
should begin. Held, whilst in a suit on a promissory note thater is a prima facie
presumption that it was executed by the person whose signature appears thereon, when its
execution by that person is specifically denied, the onus lies on the person suing on the note
to prove its due execution.

Fraud

R.G. Patel v Lalji Makanji, [1957] E.A 314 (C.A.). Civil case, allegations of fraud.
From p. 317: “Allegations of fraud must be strictly proved: although the standard of proof
may not be so heavy as to require proof beyond reasonable doubt, something more than a
mere balance of probabilities is required”.

The Uganda Native Trading Company Ltd. v. Aguste Muwemba, (1956), 23

E.A.C.A. 62. Civil case, agreement for sale of land, foregery. Held, whilst fraud must be
“pleaded with particularity and proved with precision” and a more balance of probability
cannot lead to a finding of fraud, these propositions were inapplicable to the instant case.

Garnishment
 Petro Sonko and Another v H.A.D.B. Patel and Another, (1953), 20 E.A.C.A 99. The
onus is upon a judgement creditor seeking to garnishee a sum of money to prove that it is
due and recoverable.

Insurance

Kanti Ltd v British Traders (I.) Ltd., [1965] E.A. 108 (C.A). Claim for damage to
insured articles under an all risks insurance clause. The onus is on the plaintiff to prove
casualty, and the manner in which such onus can be discharged. Held here that as damage
from an inherent vice was damage from an excepted risk, it the respondent company could
have shown that the damage was directly caused by inadequate packing it would have been
entitled to judgement; this was precisely what the respondent company sought to do before
the trial magistrate, but on the balance of probabilities was rejected.

Shah v South Brit. Ins. Co. Ltd., [1965] E.A 679 (C.A.). Insurance aganist
housebreaking. Held, an assured need only prove that loss was caused by some event
covered by the policy, but if his case is that the loss was caused by a breaking in or a
breaking out then his evidence must prove it, which the appellants here had failed to do.

The South British Insurance Co. Ltd. v. Mohamed G. Dharsi and Another, (1055),
22 E.A.C.A. 98. Held, the onuse of proving a vessel is a total loss (either an actual or
constructive total loss), is upon the person so alleging, and in the instant case the breaking
up of the vessel, i.e. its total loss, was not due to the perils of the sea.

Landlord and Tenant

Mohamed Abdulla Jhetam v Hassan Mian Jhetam and Others, (1952), 25 K.L.R.
114. Landlord appealed against decision of Central Rent Control Board making a
conditional eviction order on grounds ..... that the tenant was out of occupation and had not
proved his intention to return, and was therefore not entitled to the protection of the
Ordinance. Held, that where a tenant was out of occupation for a sufficient time the
burden shifted upon him to rebut the presumption of cesser of possession.

Kamrudin Esmail Rajwani v Govindji Kalidas Degamwala, (1950), 17 E.A.C.A 37.

Agreement not identifiying the portion of a shop “let” to respondent, the appellant
permitted the respondent to share a shop with him without any regard for a dividing line.
Plaint for ejectment. Held that the onus of proof that there was a letting of a particular
portion was clearly upon the respondent, and there being no “letting” proved, there was no
protection from the relevant Ordinance.

Alimohamed Damji v Punja Hirji Gudka (1953), 20 E.A.C.A 78. Held, that the onus
is upon the non occupying statutory tenant to prove an animus revertendi by some outward
and visible signs of an inward intention to return.

Malicious prosecution/Libel

Bhanji Virji v Akbar Ali Jamal Gangji, (1936), 17 K.L.R. (1) 36. The onus of
showing an absence of reasonable and probable cause for instituting the proceedings is
upon the plaintiff. (As to libel, goe Swami Das Puri and Another v The Kenya Farmers’
Association (Co-operative) Ltd. and Another, (1947), 22 K.L.R (2) 1, which held that the
onus is upon the plaintiff’s to discharge the burden of establishing alleged innuendos, i.e.
that the words here imputed incompetence, gross carelessness, fraud and dishonesty on the
part of the plaintiffs.

Master and Servant

Eriya Bosa v High Commission c/c E.A. Railways and Harbours, (1950), 17
E.A.C.A. 42. Suit for wrongful dismissal; defence of misconduct. Where the plaintiff
proves that he was dismissed without notice, the onus lies on the defendants to prove
misconduct.
 R. v. Simeon Murage Gitwasi, (1942), 20 K.L.R. (1) 89. Onus of proof of
“irretrievably lost” in Employment of Servants Ordinance, 1937 (K), s.59(c)(iii) dealing
with herdsman being liable to fine when cattle “irretrievably lost” through his default.

Mariamu Nakalema v Stanistawa Michalistanos and Another, (1956), 23 E.A.C.A

172. Held that as the facts proved that at the time of the accident the second respondent
was driving the tractor which he was employed to drive, a prima facie case had been
established that he was acting in the scope of his employment, and if he was not, then the
burden of proving this had shifted to the first respondent.

Partition

G.V Patel v D.M. Patel, (1939), 6 E.A.C.A 48. Sale in lieu of partitian. Held that a
party interested to the extent of one moiety is entitled as of right to a sale in lieu of partition
unless there is some good reason to the contrary shown; the burden of showing such reason
is on the party opposing the sale.

Public user

Abbas Bros v Fazal Mohamed Champsi, (1951), 18 E.A.C.A 36. The plaintiffs
claimed an injunction to restrain respondent from entering their shamba and using a track
or private road running across it. The defendant admitted user but alleged the track was
common or public. At the trial the judge held that since the plaintiffs had pleaded the road
was private, the onus lay upon them to prove it. Held, on allowing appeal and ordering
retrial, it was incumbent upon the defendant to prove he had a right to use the plaintiff’s
land and if he could not do so was a trespassor.

Dar-es-Salaam v Twentache, [1967] E.A. 224 (T). The City Council prepared a
scheme for an unnamed street and frontagers objected when called upon to contribute to
the cost of making the road. In the lower court the Magistrate held that the street in
question was a public one and not subject to the provisions of the Private Street Works
Ordinance (Cap.347) (T). On appeal, held that the onus of proving that the street in
question was a public street lay on the objectors and was not discharged.

Rent

Alimohamed Damji v Punja Hirji Gudka, 20 E.A.C.A. 78. Increase of Rent

(Restriction) Ordinance, 1949 (K). The onus is upon a non-occupying statutory tenant to
prove an animus revertendi; (see Landlord and Tenant section, supra).

Res ispa loquitur

Ksuri Khuuidiin v Nazzer bin Seif El Kassaby and Another, [1960] E.A. 201 (C.A.).
Appellant sued respondents for damages in respect of personal injuries suffered when a
motor bus in which he was riding which was owned by the first and driven by the second
respondent overturned when both offside rear tyres burst. Held, that the respondents
could avoid liability by showing either that there was no negligence on their part which
contributed to the accident, or that there was a probable cause of the accident which did
not connote negligence on their part, or that the accident was due to circumstances not
within their control.

Taxation

Comr. Income Tax v Bapco, [1956] E.A. 223 (C.A.). The onus of proving tax payer is
not liable to assessment as well as onus of proving excessive assessment is on the taxpayer.

Vallabhdas Shamsi Khambhaita and Others v Comr. Income Tax, (1954), 21

E.A.C.A 16. The onus is on the taxpayer to show that his original assessment to tax is
excessive so that it is for him to satisfy the High Court on any disputed fact in issue.

Title to goods
 H.W. Guggenheim Ltd v K.K Rajguru and Another, (1953), 7 U.L.R. 55. The onus
of proving passage of title of goods falls on the party suing for the pride of the goods (i.e.
the seller).

Traffic Offences

Bhandari v R., [1961] E.A.. 367 (E). Defendant was convicted under s.49(b) Traffic
Ordiance, 1953, as amended, of Failing to conform to a traffic sign in that he parked his
vehicle longer than permitted. Defendant had appeared in court and pleaded not guilty
and held that there was no case to answer in that there was no evidence that he was the
driver at the time of the violation. On appeal, held that the burden of proof put down an
owner of a vehicle to show that he was not in charge of a vehicle arises only if he fails to
comply with the notification requiring him to attend court to answer the charge. If he
appears in court and pleads not guilty, it is then for the prosecution to prove that he was
the driver of the vehicle at the relevant time, and in the absence of proof he is entitled to
acquittal.

Kamau s/o Muga v R., [1963] E.A. 172 (K). Traffic Ordinance, 1953, ss 43 and 44.
Charge of causing death by dangerous driving. Evidence of a mechanical defect in the
steering mechanism. Accused under the influence of drink at the time. Held, that the fact
that a person may be under the influence of drink and may not thereby be capable of
having proper control of his vehicle is a factor by itself, and if no other factors intervene
may clearly be the cause of his driving dangerously, but if another factor intervenes, such
as a mechanical defect of which the driver has no knowledge or no reason to suspect its
presence or likelihood, then the question must inevitably arise as to whether, even if he had
not been driving under influence of drink, he could have so controlled the vehicle as to
avoid driving dangerously. In such circumstances the onus is upon the prosecution to
establish affirmatively and beyond reasonable doubt that a person’s dangerous driving,
irrepsective of the defect, was due to a cause within his control and that the death of his
passenger was not caused by the defect, but was caused by the dangerous driving.
f. The burden of proof in criminal cases

An accused person is presumed to be innocent until he is proved or had pleaded

guilty; Constitution, Sec.77 (2)(a), p.(v), and the establishment of a prima facie case by the
prosecution does not necessarily mean more than that there is a case to answer, see
discussion, pp. 25-26.

Section 111 K.E.A. places a burden of proof of facts or circumstances on the accused
in certain instances which will be examined below, and sets forth the burden of proof which
is placed upon the prosecution and defence in these cases. The burden on the prosecution
under s.111 is to prove beyond reasonable doubt:-

(a) that a crime has been committed,

“........ to establish..... any acts, omissions or intentions which are legally

necessary to constitute the offence with which the person accused is charge
.......” (s.11(2)(a))
and, (b) that the accused is the person or one of the persons who committed the
offence

If an accused is charged with the burden of proof under s.111, he need only
raise a reasonable doubt to be acquitted.

“....... the person accused shall be entitled to be acquitted of the offence with
which he is charged if the court is satisfied that the evidence given by either
the prosecution or the defence creats a reasonable doubt as to the guilt of
the accused person in respect of that offence.” Second proviso, s. 111(1).
Section 105 of the I.E.A as applied in East Africa prior to

1936 reads:-
 105. When a person is accused of any offence, the burden of proving the
existence of circumstances bringing the case within any of the General Expectations in
the ..... Penal code, or within any special exception or proviso contained in any other part of
the same Code, or in any law defining the offence is upon him, and the Court shall presume
the absence of such circumstances.

This was apparently a statement of the English law as it then stood; see
MORRIS, p.137. In 1935, however, the House of Lords decided the case of Woolmington v
Director of Public Prosecutions, [1935] A.C. 462, wherein it was said:-

“....... Just as there is evidence on behalf of the prosecution so there may be

evidence on behalf of the prisoner which may cause a doubt as to his guilt.
In either case, he is entitled to the benefit of the doubt. But while the
prosecution must prove the guilt of the prisoner, there is no such burden laid
on the prisoner to prove his innocence and it is sufficient for him to raise a
doubt as to his guilt; he is not bound to satisfy the jury of his innocence.
This is the real result of the perplexing case of Rex v Abramovitch, (1914), 11
Cr. App. R. 45, which lays down the same proposition ..... Juries are always
told that, if conviction there is to be, the prosecution must prove the case
beyond reasonable doubt. This statement cannot mean that in order to be
acquitted the prisoner must `satisfy’ the jury. This is the law as laid down in
the Court of Criminal Appeal in Rex v Davis, 29 Times L.R. 350; 8 Cr. App.
R. 211, the headnote of which correctly states that where intent is an
ingredient of a crime there is no onus on the defendant to prove that the act
alleged was accidental. Throughtout the web of the English Criminal Law
one golden thread is always to be seen, that it is the duty of the prosecution
to prove the prisoner’s guilt subject to what I have already said as to the
defence of insanity and subject also to any statutory exception. If, at
the end of and on the whole of the case, there is a reasonable doubt, created by
the evidence given by either the prosecution or the prisoner, as to whether the
 prisoner killed the deceased with a malicious intention, the prosecution has
not made out the case and the prisoner is entitled to an acquittal. No matter
what the charge of where the trial, the principle that the prosecution must
prove the guilt of the prisoner is part of the common law of England and no
attempt to whittle it down can be entertained. (emphasis added).

As a result of the decision in Woolmington v D.P.P. the I.E.A. is applied in East Africa was
amended; Kenya, Ord.30/1936; Tanganyika, Ord. 12/1936; Uganda, Ord.9/1936; Zanzibar,
Decree 17/1939.

This rule has been stated by the courts in East Africa in a variety of different
situations. For example, in Leonard Aniseth v R., [1963] E.A. 206 (C.A.), the accused was
charged with murder and the trial Judge directed the assessors that “..... the burden of
proof with regard to alibi is on the person setting up that defence to account for so much of
the time of the transaction in question as to render it impossible that he could have
committed the imputed act”. The Court held this to be a misdirection, and said that in so
far as a passage in R v. Chemulon Wero Olango, (1937), 4 E.A.C.A. 46 suggests that any
burden of proof rests on the defence when the defence is an alibi, it is clear in view of the
decision in Woolmington v D.P.P and R. v. Johnson, (1961), 46 Cr. App. R. 455; 3 All E.R.
969 that such as suggestion is no longer good law and should not be followed. The Court
quoted the headnote from R. v. Johnson:-

“Though on alibi is comonly called a defence, it is to be distinguished from a

statutory defence such as insanity or diminished responsibility and is
analogous to a defence such as self defence or provocation. A prisoner
who puts forward an alibi as an answer to a charge does not assume any
burden of proving that answer, and it is a misdirection to refer to any burden
as resting on the prisioner in such a case”.

On alibi, see also said s/o Mwakawanga v R., [1963] E.A. 6 (T), where the court reached the
same conculsion, adding that if the accused by adducing evidence of an alibi introduces into
the mind of the court a doubt that is nor unreasonable, then the court must acquit him,
applying R. v. Johnson.

The Court in Okale v. R. [1965] E.A 555 (C.A.) repeated the principles set out in
Ndege Maragwa v. R., (1965), E.A.C.A. Cr. App. 156/1964 (unreported) that the burden of
proof in criminal proceedings is on the prosecution throughout the case, and that it is the
duty of the trial judge to look at the evidence as a whole, coming from Ndege’s case which
said:-

“We think it is fundamentally wrong to evaluate the case for the prosecution
in isolation and then consider whether or not the case for the defence rebuts
or casts doubt on it. Indeed, we think that no single piece of evidence
should be wieghed except in relation to all the rest of the evidence. (These
remarks do not, of course, apply to the consideration whether or not there is
a case to answer, when the attitude of the court is necessarily and
essentially different).”

In Reed v R., (1952), 1 T.L.R. (R) 375, a charge under the murder and Native
Servants Ordinance (Cap.78), of Tanganyika,11(a) in that the defendant failed to pay the
wagers of his convict without reasonable and probable cause for believing that the wasge
sware not in fact due, it was held that the onus is upon the prosecution to establish that an
accused acted in bad faith, in that this would imply a certain state of mind of mens rea
necessary before the criminal offence created by the section could be established. Where
an accused was charged with alleged illegal movement of cattle contra the Animal Diseases
Rules, 1948, the court held that the prosecution had the burden of proving that the land
onto which the cattle moved came within specified categories and that the land was a
“farm” within the meaning of r.2. Ndungu Kasau and Others v. R., [1958] E.A. 71 (K).
Where an accused was charged under the Liquor Ordinance, 1934, of selling intoxicating
liquor without a licence and being in unlawful possession of intoxicating liquor, it was held
in R. v Josephine Muthoni w/o Ismael Ithongo, (1948), 23 K.L.R. (1) 71 that to prove an
unlawful sale took place under s. 44 of the Ordinance, the onus is on the prosecution, and it
was necessary to adduce positive evidence either direct or circumstantial from which a sale
could reasonably be inferred.

In Waera s/o Madoya v R., [1962] E.A. 783 (K), the accused was charged and
convicted with assaulting police officers in the due execution of their duties under s.254(b) -
now s.253(b), P.C. On appeal the Court here held that he could not escape liability merely
on the ground that he did not know the person he assaulted or obstructed was in fact a
policeman, but if he had reasonalbe ground for his belief he was entitled to the benefit of
s.10 P.C., mistake of fact, but he then had the onus of establishing circumstances which
were capable of justifying the conclusions that he acted under such a resonable and honest
mistake. The Court said at p.786:-

“It is sufficient if on all the material in the case, it is open to the court to find
that the mistaken belief might reasonably and honestly have existed in the
mind of the accused and the onus of establishing that that was not so in
fact, woul rest upon the prosecution and would require to be established
with certainty”.

Other examples of application of the principle in various types of cases are R. v.

Manishanker v Mehta, (1946), 13 E.A.C.A. 115 is bankruptcy, where the accused was
charged with attempting to account for property by fictitious loss and it was held that the
onus of proving fictitious loss is on the prosectuion; Philip Buiga s/o Churia v. R., (1953),
256 K.L.R. 100 where the accused was charged with knowingly allowing a meeting of a
prohibited society in his house contra s.71 (a) and (b) P.C., now s.70(a) and (b). It was hled
that the burden of proof never shifted from the prosecution which, to succeed, had to prove
affirmatively that the accused knowingly allowed the meeting to take place in his home. In
Attorney General v. Ngaru s/o Kanyore, (1950), 24 K.L.R. (2) 123 the charge was under
s.333 P.C. (now s. 338 as amended), wilfully or unlawfully killing, etc,. any animal capable
of being stolen. The accused claimed he heard rustling among the maize and threw his
spear thinking it was a wild pig, when in fact it was a cow. It was argued by the
prosecution that once the facts had established that the wilful act was done, the prosecution
had discharged the burden of proving wilful and unlawful maiming. The Court, however,
disagreed, deciding that although the act of throwing the spear was per se unlawful, the
finding that he was acting under an honest and reasonable, though mistaken belief, relieved
him of liability is that the burden of proof had not been discharged. Where it is sxpressly
forbidden to do an act, proof of the doing of that act is deemed wilful as opposed to
accidental or inadvertant, but different principles apply where the injury is one to
property.

I. The burden of pleading a specific defence

Section 111(2)(c) provides:-

(2) Nothing in this section shall -

(c) affect the burden placed upon an accused person to prove a defence of
intoxication or insanity.

............................................

1. Intoxication

If an accused person pleads the defence of intoxication, the burden is place upon
him to prove the defence. Section 13 P.C. states that intoxication shall not constitute a
defence to any criminal charge save as provided in the section, i.e. that if at the time of the
act or omisison compained of the accused, by reason of intoxication, did not know that such
act or omission was wrong or did not know what he was doing, and the intoxication was
caused without his consent by the malicious or negligent act of another, or the accused was,
by reason of intoxication, insane, temporarily or otherwise, at the time of the act or
omission. By virture of subs.(4) intoxication shall be taken into account for the purpose of
determinign whether the accused had formed any intention, specific or otherwise, in the
absence of which he would not be guilty of the offence.
 Section 111(2)(c), placing the burden on the accused to prove a defence of
intoxication applies only to s.13(2) P.C., i.e. the burden rests on the accused only where the
defence of temporary insanity through intoxication resulting in inability of the accused to
know what he was doing or not knowing that what he was doing was wrong. The
subsection has no application to s.13(4) P.c. which provides that intoxication shall be taken
into account on the subject of intention. Therefore, while the accused has the burden of
proving a defence under s.13(2) P.C., the burden of proving intention remains on the
prosecution throughout. See Kongoro alias Athumani s/o Mrisho v. R., (1056), 23 E.A.C.A.
532, 534. The matter is clearly stated in the headnote to Cheminingwa v. R., (1956), 23
E.A.C.A. 451:-

“Held - That intoxication may provide a defence either by enabling the

accused to prove temporary insanity or by indicating that he was
incapable of forming the intention necessary to constitute the offence. Int he
first case the onus is on the accused to show the insanity. Int he second, the
onus never shifts from the prosecution. Unless the intention is established the
case fails at the outset and the Judge had erred as to the onus on this
point”.

The matter has been stressed in cases of murder. In Malungu s/o Kieti v. R., [1959]
E.A. 797, 799 (C.A.) it was said:-

“It is well established by a series of decisions of this court that the burden of
proving that an accused was capable of forming the intent necessary to
constitute the offence of murder always remains on the prosecution”.
(citing cases).

The appropriate question in all such cases is whether the accused was so intoxicated
as to be entirely incapable of forming the intent charged, that is, the intent to murder.
Nyameru s/o Kinyoboya v. R., (1953), 20 E.A.C.A. 192, 195 citing R. v Beard, [1920] A.C.
479; 14 Cr. App. R. 159, 191.

When will the burden placed on the accused under s.13(2) P.C. be discharged? In
Godiyano Barongo s/o Rugwire v R., (1952), 19 E.A.C.A 229 the appellant was convicted of
murder, and the Judge was prepared to find as a fact that his brain must have been
inflamed and poisoned by drink, but refused to believe that his intoxication was so
complete as to amount to legal insanity. The Court held that:-

“Thd burden resting upon the accused when attempting to rebut a natural
presumption which must prevail unless the contrary is proved will never be
so heavy as that which rests upon the prosecution to prove the facts which
they have to establish and it will not be higher than the burden which rests
on a plaintiff or defendant in civil proceeidngs. It must, however, at least
establish the probability of what is sought to be proved”.

Similar language was employed in Cheminingwa’s case, cited with approval in

Kongoro’s case and reiterated in Malungu’s case:-

“It is of course correct that if the accused seeks to set up a defence of

insanity by reason of intoxication, the burden of establishing that defence
rests upon him in that he must at least demonstrate the probability of what
he seeks to prove”.

MORRIS, p.142, relying on a passage in R. v. Justo Odima, (1941), 8 E.A.C.A. 29,

“.....It would have been sufficient for the appellant to have reaised a reasonable doubt in his
favour as to his being capagle of forming the necessary intention.....”, equates intoxication
with the defence of provocation, and it certainly does not appear from the decisions
whether raising a reasonable doubt and “demonstrating the probability of what he seeks to
prove” are equivalent or exactly how they are related. (On the burden of proof, see also
Nyakite s/o Oyugi v. R., [1959] E.A. 322 (C.A.), R. v. Retief, (1941) 8 E.A.C.A. 71.
 2. Insanity

Section 11 P.C. Provides:-

11. Every person is presumed to be of sound mind, and to have been of

sound mind at any time which comes in question, until the contrary is
proved.

This is a rebuttable presumption of law (see discussion, infra), and is the

presumption referred to in the quotation from Godiyano’s case, supra p.40, in relation to
the burden of proof when the defence of intoxication is predicated upon s.13(2) P.C. where
the alleged insanity is the result of intoxication. The statement is also applicable to defence
of insanity not arising from intoxication.

In the decision of R. v. C.W. Ross, (1932), 14 K.L.R. 48, it was held that on a trial for
murder where the defence is insanity, the accused person to exempt himself from cirminal
responsibility must satisfy the jury beyond any reasonable doubt that he was insane int he
legal sense at the time of committing the act.
This decision has never been referred to in subsequent East African Reports, but has
clearly been superceded, not only by Godiyano’s case but by R. v. Mwose w/o Mwiba,
(1948), 15 E.A.C.A. 161 wherein it was held that the well-settled law is now that the onus on
an accused person to establish insanity is no higher than that on a party to a civil case on
whom is laid the burden of proving a particular issue, following Sodeman v. R., (1946), 2
A.E.R. 1138 and R. v. Noormahomed Kanji, (1937), 4 E.A.C.A. 34.
Elaborating, the Court in R. v. Kamau s/o Njoroge, (1939), 6 E.A.C.A. 133 said:
“The burden of proving this incapacity is on the defence and the
appellant will be deemed to have discharged that burden if he
has shown that the preponderance of evidence supports a
defence of insanity”.
See also R. v. Kibiegon arap Bargutwa, (1939), 6 E.A.C.A. 142; R. v. Muna s/o Mubaba,
(1939), 18 K.L.R. (2) 141; R. v Kachinga, (1946) 13 E.A.C.A. 135, wherein the Court said:
“It is, generally speaking, sufficient if he (the accused) produces such a preponderance of
evidence as to show that the conclusion that he was insane at the time of the offence is
substantially the most probable of the possible views of the facts”.

The matter was discussed in slightly discussed in slightly different terms in R. v.

Saidi Kabila Kiunga, [1963] E.A. 1 (T), where the Court said at p. 2:-

“When insanity is advanced by the defence; ...... the burden of proof is on the
defence, although it is not a heavy burden. As WINDHAM, J.A. ..... said in Nyinge
s/o Suwatu v. R., [1959] E.A. 974 (C.A.):

“he must show, on all the evidence, that insanity is more likely than sanity,
though it may be ever so little more likely. Merely to raise a reasonable
doubt might still leave the balance tilted on the side of sanity”.

Here, as the headnote says, “the evidence regarding the accused’s insanity did no
more than raise a doubt as to the sanity of the accused at the time of the act, but it fell far
short of establishing a margin of probability on the side of insanity”.

It would appear that the language of the Court in Saidi’s case is not inconsistent
with the language in Godiyano’s and Kamau’s cases, supra, and that the terms “insanity is
more likely than sanity”, “margin of probability”, and “preponderance of the evidence” all
refer to the same standard of proof, no higher than the burden which rests on a party of
civil proceedings.

(Note: If the insanity is alleged to have been caused by a physical as opposed to a mental
disease, such as an offence committed by an alleged epileptic, the burden is on the accused
to show that at the time of the commission of the offence he was suffering from an epileptic
seizure. See: R. v. Salim bin Saidi, (1930), 1 T.L.R. (R) 123.)
h. The burden of proving circumstances bringing a case within exception or exemption
from or qualification to the law.

S.111(1) K.E.A provides:-

111.(1) When a person is accused of any offence, the burden or proving the
existence of circumstances bringing the case within any exception or exemption
from, or qualification to, the operation of the law creating the offence with which he
is charged and the burden of proving any fact especially within the knowledge of
such person is upon him:

Provided that such burden shall be deemed to be discharged if the court is satisfied
by evidence given by the prosecution, whether in cross examination or otherwise,
that such circumstances or facts exist:

........................................
Subs.111(2)(b) provides further:-

(2) Nothing in this section shall:

(b) impose on the prosecution the burden of proving that the circumstances
or facts described in subsection (1) of this section do not exist;

..............................................

1. Exceptions and exemptions from, and qualifications to the operation of the

law general

If a person is an exception to the operation of the law, he is not included; it does not
apply to him. If a person is exempted from the operation of the lawyers is not subject to its
application for a particular reason. If there in a qualification to the operation of the law,
its operation is modified, limited or restricted.

If a person enters a plea of not guilty in cases to which s.111(1) applies, he is not
entering the normal claim that he did not do the acts complained of: rather he is saying in
effect “If I did in fact do what the prosecution claims I did, nevertheless I am not guilty of
an offence because the law does not apply to me, or does not apply to what I did in the
circumstances of this case”.

Thus, for example, it may be proved that an accused acted in a particular way with
respect to property, but the accused claims that the actions were done or omitted to be done
in the exercise of an honest claim of right and without intention to defraud; s.8 P.C., or that
what he did or omitted was under an honest and reasonable, but mistaken belief in the state
of things, and that he is not guilty to any greater extent than if the real state of things had
been such as he believed to exist; s.10 P.Cp.

In circumstances such as these, the burden of proving these circumstances is on the

accused, and the prosecution has no burden to prove that the circumstances did not exist,
although the burden may be discharged if by prosecution evidence, from cross examination
exception, exemption or qualification.

In this section, s.111 K.E.A is identical in wording to s.105 I.E.A as amended, and
most of the cases will refer to s.105. See pp.37-38.

It should be kept in mind that proving circumstances or facts as set forth in s.111 is
a different matter from establishing a defence, which is not required except in cases of
insanity. See Data s/o Mtaki v R., [1959] E.A 862 (C.A)

2. Where a burden is placed upon the accused by statute

 Those cases in which a burden of proof is placed on an accused person by statute
must be distinguished from (a) those cases where the burden to prove the existence of
circumstances bringing the case within an exception, etc., and (b) those cases where the
burden of proving any fact within the knowledge of an accused is upon him. In statutory
burden cases, s.111 is not applicable.

The basic East African authority for this proposition is Ali Ahmed Saleh Amgara v.
R., [1959] E.a. 654 (C.A), in which the appellant had been convicted on two counts of
importing restricted goods, contrary to para. (a)(ii) of s.147 of the East African Customs
Management Act, 1952. Under s.167(b) of the Act, the onus of proving that those goods,
gold, were imported lawfully, that is to say that since the gold was unlicensed it was in
transit and that there was no intention to dispose of it in Kenya, was placed on the accused.
On appeal Counsel argued that there had been a misdirection in the Supreme Court, and
that the onus on an accused person under s.105 I.E.A. and s.167 of the Customs Act was no
more than to raise a reasonable doubt. The Court of Appeal said on p.658:-

“Where, as in the instate case, there is a specific provision in a statute

placing the burden of proof regarding a particular matter on the person accused,
there is no need for the prosecution to rely upon s.105.... and we think that the
application of that section must be excluded, even though it would otherwise have
been applicable, and that the principles of English law would apply. Nevertheless,
even if it might be thought that by analogy the degree of the burden on the accused
should be drawn from s.105, we do not think that there is any material difference
between s.105 of the Evidence Act and the English Law on the point. The position
under English Law is stated in PHIPSON ON EVIDENCE (9th edn) at .38 as
follows.

“When, however, the burden of an issue is upon the accused, he is not, in

general, called on to prove it beyond a reasonable doubt or in default to incur
a verdict of guilty; it is sufficient if he succeed in proving a prima facie case,
for then the burden is shifted to the prosecution, which has still to discharge
 its original onus that never shifts, i.e. that of establishing, on the whole case,
guilt beyond a reasonable doubt.

We accept that statement of the law. In R. v. Carr-Briant, [1943] K.B. 607, which is
one of the cases cited in PHIPSON in support of the proposition just stated (and is
also cited in the commentary on s.105 of the Indian Evidence Act in SARKAR ON
EVIDENCE (4th Edn.) ag p. 698) the Court of Criminal Appeal said, at p.612:

“In our jugement, in any case where, either by statute or at common law,
some matter is presumed against an accused person `unless the contrary is
proved’, the jury should be directed that it is for them to decide whether the
contrary is proved, that the burden of proof required is less than that
required at the hands of the prosecution in proving the case beyond a
reasonable doubt, and that the burden may be discharged by evidence satisfying
the jury of the probability of that which the accused is called upon to
establish”.

......It still, of course, remains for the court to be satisfied beyond reasonable doubt as to the
guilt of the accused on the whole of the evidence and this, in substance, is all that is enacted
by the second proviso to s.105.....”.

Amgara’s case has been quoted in extenso and its principles applied in R. v.
Mohanlal Ramji Popat, [1961] E.A. 263 (C.A.) a case under s.137(1)(t) of the Bankruptcy
Ordinance (Cap.30) of Kenya, which throws on a debtor the burden of showing that at the
time he contracted a debt he had reasonable or probable grounds of expectation of being
able to pay it; quoted and discussed, contrasting application of the rule with s.105 in
Omparkash Ghandi v. R., [1961] E.A. 643 (K); and quoted and applied in Chebusit
A’Kalia v. R., [1963] E.A. 448, 453 (K) in a case involving stock theft (see below).

The burden of proof in these statutory burden cases is a persuasive burden, as

distinguished from an evidential burden. See Omparkash Ghandi’s case, p.650 and
discussion below. The burden upon the accused must be satisfied to the extent of showing a
balance of probability, as in cases of insanity.

In Gamalieri Mubito v. R., [1961] E.A. 244, 247 (C.A.) under the Game
(Preservation and Control) Ordinance, 1959 wherein s.23 placed upon an accused charged
with being in possession of, selling, etc. trophies obtained in contravention of the
Ordinance, the burden of proving that the trophy was lawfully obtained, the Court
indicated that the accused need only put forward an explanation which might reasonably
be true. Another phrasing of the standard of proof required is R. v. Bashir Ahmed, (1945),
21 K.L.R.(2) 29 where the Native Liquor (Amendment) Ordinance, 1941, s.4 had placed
upon an accused the onus to prove that liquor was in his possession without his knowledge
once possession had been proved. Here the Court held that the onus on the accused is not
as heavy as that resting on the prosecution in ordinary criminal cases and would be
sufficiently discharged if the evidence, taken as a whole, established that the lack of
knowledge on the part of the accused was so probable that a prudent man ought, under the
circumstances, to believe that fact, citing s.3 I.E.A.; see also R. v. Dewji Pragji Mehta,
(1946), 13 E.A.C.A. 80, possession of diamonds, also under s.3. For other examples of
instances placing a burden on the accused by law see: R. v. Ramathan Jabi; (1948), 23
K.L.R. (1) 81, charge of unlawful possession of Crown Land; Mohamed Hussein v The
Price Controller, (1941), 10 E.A.C.A. 72, Defence (Price of Goods) Regulation, 1941, giving
false information in answer to request of Price Controller, burden of proving that accused
neither a wholesaler nor retailer on him.

Cases dealing with possession of stolen goods, s.324(2) P.C. will be found under the
subject of presumption, s.119K.E.A., infra.

In Ouko v R., [1966] E.A. 286 (K), where the accused was charged under s.3(1) of
the Prevention of Corruption Act (Cap.65) and the accused’s defence was that the case had
been fabricated against him, it was held a misdirection for the Magistate to hoel that all
that was necessary for the accused to succeed was to show on the balance of probabilities
that the case was a fabrication; the Court noted that this was not one of the special cases
where the Legislature had “with deliberation and in set terms thrown the burden of proof
upon the accused”.

Immigration cases raising questions of unlawful entry through misrepresentation,

etc. and the onus resting on an accused are discussed in Attorney General v Govindji H.N.
Shah, [1961] E.A. 110 (C.A.) at pp. 117-118. The trial Judge had said:

“I am satisfied that once it is established or admitted that the plaintiff duly

reported to the immigration officer and was permitted by him to enter ..... the
onus upon the plaintiff of proving that he is not a prohibited immigrant has
been prima facie discharged and that thereafter the onus of establishing that
the case comes within the provisions of s.8 of the Immigration Ordinance
lies upon theperson who asserts that this is so, at least to the extent of
raising a prima facie case”.

The court said:

“That may well be correct in a case where no misrepresentation has been

proved to have been made: Bhanabhai’s case. (Ex parte Bhagubhai Bhanabhai, (1954), 27
K.L.R. 134). It is correct that, in such a case, the provisional burden of proof depending on
the state of the evidence, which LORD DENNING, in Huyton-with-Roby U.D.C v Hunter,
[1955] 2 ALL E.R. 398; and Dunn v Dunn, [1946] 2All E.R. 822, distinguished from the
legal burden of proof, is shifted by showing that the immigration officer at the port of entry
was satisfied that the immigrant’s entry was lawful. That would not shift the legal burden
of proving that the immigrant was not a prohibited immigrant at the time of first entry
which, under s.18(2) of the Ordinance, remains upon the immigrant and does not shift, so
that at the end of the case it would be the duty of the judge to ask himself: `Has that
burden been discharged?’ Dunn v Dunn. In Bhanabhai’s case it was held that it had been
discharged. But, where it is proved that there has been a prior material misrepresentation
ot the Immigration Department .... not even the provisional burden of proof is shifted: the
burden of proof that the immigrant is not, or was not when he entered, a prohibited
immigrant and that his entry and presence in the Colony was and is lawful, rests squarely
upon the immigrant under s.18(2) of the Ordinance: Ramji’s case (Hirji Devchand Ramji v.
Attorney General for Kenya, (1956), 23 E.A.C.A. 20) and Chimanlal’s case. (Chimanlal
Motibhas Hira Patel v The Attorney General, [1960] E.A. 388 (C.A.).”

Other cases, for example Mandhan Devraj v. R., (1955), 22 E.A.C.A 488 have been decided
on the basis of s.105 I.E.A. or equivalents, see below. See also Abdillahi Jama Awaleh v. R.,
[1958] E.A. 20, 27 (C.A.).

(Note: s.15 of the Immigration Act, 1967 (No.25 of 1967) reads:-

15. Whenever in any legal proceedings under or for any of the purposes of this Act
any one or more of the following questions is in issue, namely:-

(a) Whether or not a person is a citizen of Kenya;

(b) Whether or not a person is one of the persons mentioned in section
4(3) of this Act;
(c) Whether or not there has been issued or granted to pass, authority,
approval or consent, whether under this Act or under the repealed
Acts;
(d) Whether or not any person was at any time entitled to any such
issue or grant as is referred to in paragraph (c) of this section,
the burden of proof shall lie on the person contending that such person is a citizen of
Kenya, or one of the persons mentioned in the said subsection, or a person to whom
such an issue or grant was made, or a person who was entitled to an issue or grant,
as the case may be.

The Court in Chubusit A’Kalia v R., [1963] E.A. 448 (K) discussed the changes in
the wording of s.10(1) of the Stock and Produce Theft Ordinance (now s.9(1) of the Stock
and Produce Theft Act, Cap. 355) which now reads:
 9.(1) Any person who has in his possession any stock which may reasonably be
suspected of being stolen of unlawfully obtained shall, if he fails to prove to the
satisfaction of the Court that he came by the stock lawfully, be guilty of an offence
.......”

and, after setting forth and considering the law on the burden of proof as found in Ali
Ahmed Saleh Amgara v. R., supra p.44, concluded (p.454):-

“..... a person in possession in a proclaimed district of any stock which is reasonably

suspected of having been stolen or unlawfully obtained can only be convicted under
the section if he fails to show that no offence was committed in respect of his
acquisition of the stock”.

It should be noted that the phrase “in a proclaimed district” was deleted by the First
Schedule of Act No.21/1966. The Court also noted that the previous rule as found in Kipsoi
arap Soiyot, (1941), 19 K.L.R. 89 is no longer good law. Presumably the same would apply
to other earlier cases: R. V. Kiberenge s/o Kachilichili, (1946), 22 K.L.R. (1) 36; R. V,
Mathayo Oyoo, (1945), 21 K.L.R. (2) 54; R. v. Kimuge Arap Ngelenu, (1939), 18 K.L.R.(2)
153.

3. The onus of proof under s.111 K.E.A.

In those cases where the burden of proof is placed on an accused by viture of s.111,
the onus of proof is different from that set forth in Amgara’s case see p.44 - where the
burden is on the accused by statute. This distinction is discussed in Omparkash Ghandi v.
R., [1961] E.A. 643, 650 (K):-

“Now the onus which is placed upon the defence by s.105 of the Indian Evidence Act
is to prove two types of facts. The first type of facts are circumstances bringing the
case within any exception, exemption from or qualification to the operation of the
law creating the offences. The second type of facts are those which are especially within
the knowledge of the person accused. Difficulties sometimes arise as to facts especially
within the knowledge of the person accused as to whether they have to be proved or
negatived by the prosecution as part of the general issue or whether they have to be
proved by the defence as facts specially within the accused’s own knowledge.
Fortunately no such difficulty arises in this appeal since it is clear that to avoid a
conviction the appellant had to obtain the benefit of the proviso to s.97, sub- s.(2), of the
Traffic Ordinance, 1953, by showing that the offence was committed without his
knowlege or consent and that he had taken all reasonable precautions to avoid it. The
issue which was really in question was whether he had taken all reasonable of proof
upon the appellant, however, was no tto establish that he had taken all reasonable
precautions to avoid the commission of the offence. The onus of proof upon the appellant,
however, was not to establish that he had taken all reasonable precautions to avoid
the commission of the offence, it was to prove circumstances bringing the case within
that exception. The distinction is perhaps a fine one, but we think it is important
since, in our opinion, if the accused establishes certain circumstances which he suggests
are capable of bringing the case within the proviso, then it is for the prosecution to
show conclusively that such circumstances do not bring the case within the proviso.
We thing it follows that the section does not have the effect of raising a presumption in
favour of the prosecution until the contrary is proved in the sense of the presumptions
involved in the cases of (R. v. Sodeman, [1936], 2 All E.R. 1138, R. v. Carr-Briant,
[1943] K.B. 607, and R. v. Dunbar, p[1957] 1 Q.B. 547; 1 All E.R. 734). It, therefore,
follows, in our opinion, that the onus on the defence is an onus of evidential proof
and not an onus of persuasive proof. This appears to be confirmed by the second
proviso to sub-s.(1) and by the exclusion from the scope of the section of the special
defence of insanity in which persuasive proof is required. In our opinion the effect
of s.105 in the present appeal was that it was for the appellant to show from the
evidence adduced by the defence or by the prosecution that there was evidential material
capable of being believe dand capable of brining the case within the proviso ...... It was
then for the court to decide if that evidential material sufficed to bring the case within the
proviso and if there was any doubt as to that or as to any other material ingredient
of the offence the appellant was entitled to be acquitted in accordance with the second
proviso to sub-s. (1) of s.105 of the Act: Madan Devraj v. R., (1955), 22 E.A.C.A. 488 at
493. “(emphasis added).

Thus the section cannot by any implication be utilized to cast on the accused the
burden of proving his innocence, i.e. it does not cast upon him any burden to prove that no
cirme was committed by proving facts lying specially within his knowledge. See Abdillahi
Jama Awaleh v. R., [1958] E.A. 20 (C.A) p.27; Remat Nanji Ahmed v. r., [1959] E.A. 804 (T)
p. 811. The standard of proof is set forth in Ali Hassan Mohamed v. R., [1959] E.A. 606 (K)
@ p.608:-

“....... the onus upon the defence will be discharged if the court is satisfied that the
evidence given by either the prosecution or the defence creats a reasonable dobut
as to the guilt of the accused person in respec of the offence”.

drawing on the language of the section.

4. Cases involving exceptions, exemptions and qualifications.

In R.B. Patel v R., [1959] E.A 97 (C.A.), the accused was found in possession of
currency notes for which no exchange control permit had been obtained. He was in
possession of an airline ticket to Bombay via Aden, and his departure declaration form
showed that he gave his country of destination as India. The Exchange Control Ordinance
(No. 40/1950), s.22(1) reads:

“22(1) The exportation from the Colony of - (a) any notes of a class which
are or have at any time been legal tender in the United Kingdom or any part
of the United Kingdom or in any other territory .... is hereby prohibited
except with the persmission of the member”.

An exemption had been granted under appropriate authority which read:-

 “3 (1) There shall be exempted from the provisions of s.22 of the Ordinance, the
exportation for the Colony -
(i) by any traveller to .... Aden ..... on his person or in his baggage of
any currency notes or postal orders”

The Court held that under the facts there had been no attempt to discharge the onus which
lay upon the appellent of showing that he fell within the exception by any suggestion that
he intended to apply for any permit, or exchange his currency notes for any draft or other
form of credit in Aden.

Abdul Hussein v. R., [1959] E.A. 105 (K) involved an accused who operated a
grocery store in Nairobi on Crown land within a military compound without a Municipal
licence as required by the Municipal By-laws. The accused contended that since the
premises were on Crown land, prima facie the By laws had no application, and that the
onus was on the prosecution to establish that in the circumstances of the case the By-laws
did, in fact, apply to the premises, and that the prosecution failed to discharge that onus.
The Court said at p.108:-

“....Although there was nothing in the evidence to show how the appellant
came to be in occupation of the premises, it seems clear that he was a
member of the public and not a servent of the Crown. There was nothing to
indicate that he had any good claim to Crown status. On those facts there
was a prima facie case against the appellant and the burden lay on him of
proving the existence of circumstances which would exempt him from the
operation of the By-laws. In our view the appellant did not discharge that
burden, even to the extent of raising a reasonable doubt”.

The relevant section in Omparkash Ghandi v. R., [1961] E.A. 643 (K) was s.97(2) of the
Traffic Ordinance, 1953, which reads:-
 “(2) If any public service vehicle carries more persons, baggage or goods
than it is licensed to carry, the driver, conductor and the owner of such vehicle shall be
guilty of an offence.....
Provided that the owner shall not be guilty as aforesaid if such offence is
committed without his knowledge or consent and if he took all reasonable precautions to
prevent it”.

The Court held that the proviso was an exception or qualification to the law creating
the offence stated in the earlier part of the sub-section, and therefore the onus of proving
circumstances entitled the appellant to the benefit of the proviso feel upon him by virture of
s.105 I.E.A. The appeal was allowed owing to a misdirection by the trial magistrate as to
the burden of proof required and other matters. The appellant had merely to prove the
existence of circumstances which might amount to proof that he had taken all reasonable
precautions, and it then was for the prosecution to prove beyond doubt that any facts so
proved did not establish that all reasonable precautions had been taken as well as to prove
all the other essentials of the offence.

In Bombay Trading Stores v. R., [1962] E.A. 589 (C.A) the appellant had been
convicted under the Uganda Pharmacy and Poisons Act (Cap.273) of selling poisons to an
unauthorised person. Section 29(4) created an absolute prohibition against the sale of such
poison, followed by words of exception. (The Court decided that the fact that the words of
exception were, in fact, contained in an earlier subsection was not material). After reaching
the conclusion (p/593) that whether M. was a person to whom the poisons could be sold was
not a fact specially within the knowledge of the appellants, the Court said at pp.594-5:-

“.... We think that it is to be gathered from the authorities discussed above

that the question whether a particular provision creates an exception affecting the burden
of proof must be resolved by construing as a whole the legislation in which it is contained,
in which task the fact that the exception is expressed before, within, or after the provision
creating the offence may possibly be a relevant, but is certainly not a determining factor.
We are therefore of opinion that the sale of Part I poison prima facie constitutes an offence,
that the first part of s.104(1) applies in the circumstances of this case and that the burden
of proving circumstances bringing the case within the exception to the operation of sub-s.
(4) lay upon the appellants. In short, the onus was upon the appellants to prove not only
that they were authorised to sell Part I poison, but also that Musoke was a person to whom
they were authorised to sell Part I poison under s.29.”

5. Cases involving facts especially within the knowledge of the accused.

It should be noted that the obligation cast by s.111 on an accused person of proving
any fact especially within his knowledge does not cast upon him the burden of proving that
no crime was committed; see Mwaitige v. R., [1961] E.A. 470, 475 (C.A.), citing authority.

Certain types of case have been held to fall doubly within the provisions of s.111(1),
notably those involving licences. In Mohamed Hassan Ismail v. R., (1955), 22 E.A.C.A. 461
the accused had been convicted for being in possession of a firearm and ammunition
without the requisite certificate. Possession was proved and admitted, but no evidence was
called by either side concerning the certificate, the evidence showing that the appellant had
been asked to produce a certificate and had said that he had it, but although given evey
opportunity, failed to produce it was only able to produce a certificate for the previous year.
The Court said at p.463:-

“In the present case we think that the possession by the appellant of a firearm
licence is a matter which falls twice over within the above provision, (s.105(1)I.E.A.),
for not only is it in our view a circumstances bringing the case `within an exception
or exemption from the operation of section 4(1) of the Firearms Ordinance, but also it
is a fact `especially within the knowledge of’ the appellant”.

See also John Nzoli v. R., [1961] E.A. 575 (K) wherein it was held that as the vehicle
in question carried a passanger or passengers for hire or reward, it was a public service
vehicle as defined in s.2 of the Traffic Ordinance, 1953, and under s.105 I.E.A. the onus was
upon the first appellant to show that there was a public service licence in force, referring to
Mohamed Hassan Ismail v. R. See also Fatch Ali Shah Mushad v. R., (1939), 1 T.L.R. (R)
229 where, in a case involving a charge of buying raw gold without a licence it was held
that when the prosecution had led sufficient evidence in respect of the purchase of raw gold
by the appellant, the onus of proof was shifted to him to prove that he was licensed to buy
gold if it was sought to bring the case within the exception to the operation of the section
under which he was charged, seeing that the negative averment in the charge (“not being a
licensed gold dealer”) was on that related to him personnaly and was peculiarly within his
knowledge. On appeal, (1940), 7 E.A.C.A. 41, the Court expressed the opinion that the case
fell within the exact language of s.105 and might have been decided on the ground that it
was for the appellant to prove that he came within the exception to the law by showing that
he had taken out a licence.

In R. v. Central African Contractors Ltd., (1944), 21 K.L.R. (2) 32 the accused was
convicted under the Defence (Control of Prices) Regulations, 1943 of selling various price-
regulated goods at prices exceeding the maximum prices fixed under the Regulations. the
accused claimed that the difference over the price of eggs was well within the legitimate
charge for transport on eggs. In no case did a sale invoice indicate any charge for
transport on the sale and delivery of the eggs, and certain exhibits inciated that they
delivered produce free of charge. It was held that the cost of transport was a matter
exclusively within the knowledge of the accused and he had the onus to prove it. On the
other hand it was held in Mwaitige v. R., [1961] .E.A 470, 475 (C.A.) the Court held that the
identity of the producer of coffee and the district in which it had been grown were not facts
especially within the other hands since it left the producer and before the accused acquired
it.

When an employee was injured feeding leave into a sisal decorticating machine, the
appellant in Kanji and Kanji v. R., [1961] E.A. 411 (C.A) was convicted under ss 23(1) and
75 of the Factories Ordinance (Cap. 297) of Kenya in that they failed properly to fence the
machine and as a consequence of this breach of duty the employee was injured. The
Magistrate made a finding on the condition of the machine on the date of the accident from
the evidence of a factor inspector who had inspected the machine five months after the
accident. The Court held that it had been wrong to hold that a change occuring in the
machine between the date of the accident and the date of the inspection by the factory
inspector would be a matter “especially within the knowledge” of the appellants within
s.105, it being well established that the section doe not cast upon an accused the burden of
proving that no crime was committed, and the appeal was decided on other grounds. It
has also been held in James Mutemi s/o Mbiti v. R. (1949), 23 K.L.R (2) 98 that the burden
of proving that passengers were being carried for hire or reward under the Transport
Licencing (Amd.) Ordinance, 1937, s.4(1) was on the prosection, being an averment of
positive fact and not a fact especially within the accused’s knowledge. Notice the difference
between the positive averment here, and the negative averment in Fathed Ali Shah
Mushad, above.

Chandaria v. R., [1966] E.A. 246 (C.A.) presented an interesting problem of

interpretation under s.111 K.E.A. The accused was convicted on eleven counts of
attempting to commit offences under the Exchange Control Act by mailing currency to one
K.H.C. in London. The question was whether K.H.C. was a person resident outside the
scheduled territories. A letter seized by the police clearly showed that K.H.C. was living in
London with his wife and children, was carrying on a business, and was considering buying
a building. Counsel for the Republic cotended that once a prima facie case had been
established that K.H.C was resident outside the scheduled territories, the burden of proof
would shift to the accused under s.111, relying on Mohamed Hassan Ismail, supra. The
Court said at p.250:-

“In the first (of the cases cited by Counsel) the question in issue was whether or not
the accused was an alien; in the second the question in issue was whether
sausages made by the accused contained pork and, if so, in what proportion; in the
third, the question in issue was whether the accused had a certificate entitling him to
possess a firearm. Those were all questions which the accused persons could
answer and probably no one else. Once the prosecution had established a prima
facie case, the onus therefore shifted. We think, however, that the position is
 essentially different here. In the cases cited, the accused’s knowledge was
knowledge of his own, personal, circumstances: one knew his own nationality, one
the ingredients of the sausages he made and one whether or not he had obtained a
firearms certificate. Here, we are being asked to say that a fact relating to someone
else was especially within the knowledge of the appellant. The fact in issue was
where Khimchand and resident; that fact could on be arrived at by influence from
other, primary, facts and possibly, though not necessarily, from a knowledge of
Khimohand’s intentions. The appellant may have known of his own knowledge,
some of the primary facts from which resident could be inferred by it was
impossible to be sure that he knew them all and he certainly could not know Khimohand
purporting to set out his intentions but these could do no more than found a belief in
the appellant’s mind as to Khimchand’s residence. It would not be a matter of
knowledge and therefore s.111 would not apply”.

For additional immigration cases under s.105 I.E.A. or equivalents, see Mandan Devraj v.
R., 1955, 22 E.A.C.A. 488, 493: Patel v Attorney General, [1960] E.A. 388 (C.A.), burden of
proving entry was lawful was on accused being a fact especially within his or his family’s
knowledge.

I. Proof of special knowledge in civil proceedings

Section 112 K.E.A reads:-

112. In civil proceedings, when any fact is especially within the knowledge of any
party to these proceedings, the burden of proving or disproving that fact is upon
him.

......................................
Section 106 I.E.A from which s. 112 was drawn, read:

106. When any fact is especially within the knowledge of any person, the burden of
proving that fact is upon him.

The words “in civil proceedings” were added when the section was enacted by virture of
Ordinance 30/1936, and when the Evidence Act, 1963 was enacted the words “or
dispreving” were included, as well as “party to those proceedings” which was substituted
for the words “any person” in the old section.

In civil cases it is the duty of a party, personally knowing the whole circumstances of
the case, to give evidence on his behalf and to submit to cross-examination; his non-
appearance would be one of the strongest circumstances going to discredit the truth of his
case.

When a person does some act with some intention other than that which the
character and circumstances of the act suggest, the burden of proving that intention is
upon him. For example:-

A is charged with travelling on a railway without a ticket. The burden of proving

that he had a ticket is upon him.

Before the 1963 Evidence Act added the word “or disproving”, the burden was one
of proving affirmative facts, not disproving facts, and the amendment has raised some still
unanswered questions. An example of the application of th eold section (s.106 I.E.A. as
amended by Ord. 30/1936) is Pritam v Commissioner of Internal Revenue, [1961] E.a. 671
(K), in which an assessment was made under s.105 (1) of the East African Income Tax
(Management) Act, 1958, which reads:-
 “An assessment may be made under s.102, s.103 or s.104 at any time prior to the
expiry of seven years after the year of income to which the assessment relatos;
provided that:-

(a) Where any fraud or any gross or wilful neglect has been committed
by or on behalf of any person in connection with or in relation to tax
for any year of income, an assessment in relation to such year of
income may be made at any time”.

More an assessment was made after the end of seven years. The Commissioner argued that
the onus was always on the taxpayer to show that the original assessment is excessive, and
that by virtue of s.106 I.E.A. the burden of proving that an assessment is barred by a
statute is on the taxpayer.

The Court held that if the respondent (Commissioner) sought to maintain that any
particular assessment which, on the face of it, is expressed to have been made more than
seven years after the end of the year of income to which it relates, was not statute barred,
he must call evidence of such a nature as to establish that there was a preponderance of
probabiltiy that the taxpayer in relation to his income tax for the relevant year of
assessment either acted fraudulently or was in gross or wilful default.
Discussing the application of the section, the Court said on p.675:-

“Admittedly it must be peculiarly within the knowledge of the taxpayer whether he

has committed fraud or gross neglect in relation to his income but the burden
created by (the section) is a burden of proving affirmative facts, not of disproving
facts; in fact, (Counsel’s) contention, if correct, would entail casting in every civil
case in which fraud is alleged the burden of disproving fraud upon the party against
whom fraud is alleged”. (emphasis added).

(Note: reference in the report is to s.105, but the section quoted is s.106, which is correct).
 Thus here the affirmative burden of proving facts places upon the Commissioner the
burden of proving the fraud or wilful or gross neglect on the party which alleged them, in
order to satisfy the condition which would allow the assessment to be made after the expiry
of the statutory period.

Under the section as it now reads, where a burden of proving or disproving facts
especially within his knowledge placed upon a party, and in as much as “it must be
peculiarly within the knowledge of the taxpayer whether he has committed fraud or gross
neglect in relation to his income.....”, what would be the position if the same case were
heard today?:-

1. Assessment brought after seven years.

2. Commissioner alleges fraud in preparation or original tax return allowing him to
bring an assessment after the expiry of the statutory period

.Query: Is the burden of disproving fraud placed upon the taxpayer by the allegation in
the pleadings?

It is submitted that a mere allegation of fraud in the pleadings would not be

sufficient to shift to a defendant a burden of disproving fraud, but that the plaintiff will be
required to make out a prima facie case before the burden will shift, especially since the
Court of Appeal has held that “allegations of fraud must be strictly proved: although the
standard of proof may not be so heavy as to require proof beyond reasonable doubt,
something more than a mere balance of probabilities is required”. R.G. Patel v Lalji
Makanji/. [1957] E.a. 314 (C.A.).

There have been, todate, no reporte cames on the burden of disprovingfacts

especially within the knowledge of a party. However several cases reporte illustrate how
the burden of proving facts has been placed on a person by virtue of the section.
 In Ali K. Virani v United Africa Co., [1958] E.A. 204 (C.A.) the applicants
knowingly sold coffee at an unreasonably low price. Soon after the police seized the coffee
under a search warrant. The director was charged with receiving it knowing it to have
been stolen, and was convicted. The coffee was never returned to the respondents who
claimed the return of the price paid. When the respondents closed their case the appellants
called no evidence, but submitted that there was no evidence before the court that the
appellants had no title to the coffee. On appeal the Court thought that the facts raised a
strong prima facie probability that there was outstanding a claim of right in some person
antecedent to the appellants’ title rendering it at best defective, and said on p.210:-

“At the very least, the facts proved were sufficient to place, by virtue of s.106
of the Indian Evidence Act, the onus on the appellants to prove two facts,
both peculiarly within their own knowledge, that they had a right to sell the
coffee (see s.14(a) of the Sale of Goods Ordinance), and that the failure of
the respondents to obtain quiet possession (see s.14(b)) was not due to any
cause for which in law they were responsible. The appellants, however,
deliberately chose to call on evidence”.

A case under s.112 K.E.A. is East African Road Services Ltd v J.s. Davis & Co. Ltd.,
[1965 E.A. 676 (K). The plaintiff consigned goods to the defendant, a carrier, for carriage
from Nairobi to Tanzania. None of the goods were delivered and the plaintiff sued for the
loss. At the trial no evidence was given as to the reason for non-delivery. The defendant
relied on an exemption clause in the contract which excluded liability for loss “whether or
not such loss ..... was caused by or through or due to the negligence of the (defendant) or its
servants or agents or otherwise. However, it was common ground that the exemption
clause could not be relied on if there had been a fundamortal departure from the
performance of the contract by the appellant. The trial Magistrate gave judgement for the
respondent. On Appeal the question in issue was whether the burden of proof lay on the
respondent as customer to prove that there had been a fundamental breach of the
performance of the contract, or on the appellant as carrier of proving that there had not.
The Court quoted from CHESHIRE AND FIFOOT ON THE LAW OF CONTRACT (6th
Edn.) at p.121 which commented on and approved the decision in Hung & Winterbothan
(West of England) Ltd. v. B.R.S. (Parcels) Ltd., [1962] 1. Q.B. 617; 1All E.R. 111:-

“He who makes an allegation must prove it. It is for the plaintiff to make out
a prima facie case against the defendant. If he succeeds in this, it is for the
defendant to plead and to prove some special defence such as an
exemption clause. The burden must then pass to the plaintiff who in turn
must plead and prove some reason, such as a breach of fundamental
obligation, why the exemption clause is to be disregarded”.

The Court then said on p.676:-

“The commentaries on s.106, the equivalent section of the Indian Evidence

Act, do not suggest that there is any essential difference between the
English and the Indian Law on the point, and indicate that in general some
prima facie evidence must be given by the complainant in order to cast the
burden on the adversary. See for instance, SARKAR ON EVIDENCE (10th
Edn), p. 843. It is agreed that non-delivery is prima facie evidence of
negligence; but the plaintiff in view of the exemption clause cannot succeed
unless fundamental breach is established, and in spite of the forceful
arguements of counsel for the defendant to the contrary, I am unable to
accept that non-delivery is either in itself a fundamental breach or
even raises such a prima facie case of a fundamental breach as to cast upon
the defendants by virtue of s.112 of the Evidence Act the burden of disproving
it”.

This decision, the only authority on s.112 to date, reinforces the submission above
that a mere allegation is not sufficient to cast upon a party a burden of disproving facts
especially within his knowledge, but that the courts will require that a prima facie case be
established before the burden of proof is shifted.
 [HOUSE OF LORDS.]

WOOLMINGTON APPELLANT;

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT.

VISCOUNT SANKEY L.C., LORD HEWART L.C.J.,

1935 April 5; May 23.
LORD ATKIN, LORD TOMLIN, and LORD WRIGHT.

Criminal Law - Murder - Onus of Proof - Accident - Unlawful Intention - Direction to the Jury -
Reasonable Doubt of Guilt - Criminal Appeal Act, 1907 (7 Edw. 7, c. 23), s. 4.
In a trial for murder the Crown must prove death as the result of a voluntary act of the prisoner
and malice of the prisoner. When evidence of death and malice has been given, the prisoner is
entitled to show by evidence or by examination of the circumstances adduced by the Crown that
the act on his part which caused death was either unintentional or provoked. If the jury are either
satisfied with his explanation or, upon a review of all the evidence, are left in reasonable doubt
whether, even if his explanation be not accepted, the act was unintentional or provoked, the
prisoner is entitled to be acquitted.
Statement of the Law in Foster's Crown Law (1762), p. 255, and summing up of Tindal C.J. in
Rex v. Greenacre (1837) 8 C. & P. 35 disapproved.
Order of the Court of Criminal Appeal reversed.

APPEAL from an order of the Court of Criminal Appeal refusing leave to Reginald
Woolmington, the appellant, to appeal against his conviction of the wilful murder of Violet
Kathleen Woolmington, who was his wife.
The appellant was convicted on February 14, 1935, at Bristol Assizes before Swift J. and a jury.
The appellant and his wife were married on August 25, 1934. He was a farm labourer and bore a
good character. His age was twenty-one and a half years, and his wife was four years younger.
They lived at Castleton, near Sherborne, on the farm of one Cheeseman, the appellant's
employer. On November 22, 1934, the appellant's wife left him and went to live with her mother,
Lilian Smith, a widow, at 24 Newtown, Milborne Port. The appellant wanted her to go back to
him and made efforts to induce her to go back, but she would not.
Next door to Mrs. Smith lived a Mrs. Brine, a sister of Mrs. Smith and aunt of the deceased
woman. On the morning of December 10, 1934, Mrs. Brine, who was in the back yard of No. 25,
heard the appellant's voice saying: "Are you coming back or not?" and "Where's your mother?"
Then she heard the back door of No. 24 slam, and then the report of a gun. She looked out of her
front window, and saw the appellant. She called to him; he made no reply, but mounted his
bicycle and rode away. She went into No. 24, and found her niece lying on the mat. She had been
shot through the heart.
The appellant gave evidence to the following effect: After a sleepless night on December 9-10 he
thought he might frighten his wife into obedience by threatening to shoot himself. On December
10 he went to the farm till 8.20 A.M.; came home to have his breakfast; then went back to the
farm, and took a gun belonging to Mr. Cheeseman, which lay on a shelf in a barn. Near the gun
was a box containing two cartridges. With a fret-saw belonging to his father he sawed off part of
the barrels and threw that part and the saw into a brook, and loaded the gun with the two
cartridges. Then he put the gun under his overcoat in a pocket used for carrying rabbits, and
returned home. There he attached to the gun some flex for carrying electric current, and with this
he suspended the gun from his right shoulder and under his overcoat; and so equipped he rode on
his bicycle to Mrs. Brine's house. There he tapped at the front door; his wife opened it; she was
washing clothes in the kitchen. They went into the back room. He said: "Are you coming back or
not, Vi?" but got no answer. His wife shut the back door, and they went into the front room. His
wife said she would not go back, but had decided to go into service. Then he said, if she would
not come back to him he would shoot himself; and, to explain how he meant to do this, and to
show her the gun with which he meant to do it, he unbuttoned his overcoat, and brought the gun
across his waist. The gun went off; he did not know it was pointing at his wife. She fell to the
ground. He did not know what to do. He went out of the house and to his own home. There he
saw his mother and told her that he had been up and shot his wife. He threw the gun on a bench
in the outhouse and rode to Mr. Cheeseman and said to him: "I shall not be coming to work any
more, as I have shot my wife."
A note was found in the pocket of the appellant's coat. It was in these terms:-
"Good bye all.
"It is agonies to carry on any longer. I have kept true hoping she would return this is the only
way out. They ruined me and I'll have my revenge. May God forgive me for doing this but it is
the Best thing. Ask Jess to call for the money paid on motor bike (Wed.). Her mother is no good
on this earth but have no more cartridges only 2 one for her and one for me. I am of a sound
mind now. Forgive me for all trouble caused
"Good bye
ALL
I love Violet with all my heart

Reg."

The appellant was cross-examined about the date when this note was written, whether it was
before or after the death of his wife. He persisted in his statement that it was written after the
death, and gave his explanation of its contents.
He said that after having written it he went downstairs and waited for the police; he intended to
shoot himself; he went outside and met his father in the lane. He told his father he was going to
shoot himself, but his father persuaded him not to. Then the policeman arrived and took him to
the police station. When he was charged, he said: "I want to say nothing, except I done it, and
they can do what they like. It was jealousy I suppose. Her mother enticed her away from me. I
done all I could to get her back, that's all."
The appellant was first tried at Taunton on January 23, 1935, before Finlay J. and a jury. After
considering their verdict for an hour and twenty-five minutes that jury disagreed.
At the trial out of which the present appeal arises Swift J. in his summing-up gave the following
direction to the jury: "A charge is made against Reginald Woolmington, the prisoner at the bar, of
wilful murder. It is said that on the morning of December 10, about half-past nine, he murdered
his wife. That she died whilst he was in that house you will, I should think, have little doubt. It is
a matter entirely for you. If you accept his evidence, you will have little doubt that she died in
consequence of a gun-shot wound which was inflicted by a gun which he had taken to this house,
and which was in his hands, or in his possession, at the time that it exploded. If you come to the
conclusion that she died in consequence of injuries from the gun which he was carrying, you are
put by the law of this country into this position: The killing of a human being is homicide,
however he may be killed, and all homicide is presumed to be malicious and murder, unless the
contrary appears from circumstances of alleviation, excuse, or justification. 'In every charge of
murder, the fact of killing being first proved, all the circumstances of accident, necessity, or
infirmity are to be satisfactorily proved by the prisoner, unless they arise out of the evidence
produced against him; for the law presumeth the fact to have been founded in malice, unless the
contrary appeareth.' 1 That has been the law of this country for all time since we had law. Once it
is shown to a jury that somebody has died through the act of another, that is presumed to be
murder, unless the person who has been guilty of the act which causes the death can satisfy a jury
that what happened was something less, something which might be alleviated, something which
might be reduced to a charge of manslaughter, or was something which was accidental, or was
something which could be justified."
Then, after reviewing and commenting upon the evidence, the learned judge added these words:
"The Crown has got to satisfy you that this woman, Violet Woolmington, died at the prisoner's
hands. They must satisfy you of that beyond any reasonable doubt. If they satisfy you of that,
then he has to show that there are circumstances to be found in the evidence which has been
given from the witness-box in this case, which alleviate the crime so that it is only manslaughter,
or which excuse the homicide altogether by showing that it was a pure accident."
The jury, after considering their verdict for an hour and nine minutes, found the appellant guilty
of wilful murder.
The appellant applied to the Court of Criminal Appeal for leave to appeal against his conviction,
but that Court, as stated above, refused the application.
The Attorney-General having certified that the decision of the Court of Criminal Appeal involved
a point of law of exceptional public importance and that, in his opinion, it was desirable in the
public interest that a further appeal should be brought, the present appeal was brought before this
House.

April 4. T. J. O'Connor K.C. and J. D. Casswell for the appellant. In delivering the judgment of
the Court of Criminal Appeal, Avory J. said: "The point, and really the only point, of complaint
as regards this summing-up is that the learned judge did not anywhere use the expression that the
jury should acquit the accused altogether, or convict him only of manslaughter, if they
entertained any reasonable doubt about the truth of his explanation of how his wife came by her
death. It may be that it would have been better if the learned judge had in those few words said to
the jury that if they entertained reasonable doubt whether they could accept his explanation, they
should either acquit him altogether or convict him of manslaughter only."
This is precisely the exception which the appellant takes to the summing-up of Swift J.; and the
complaint which he makes against the order of the Court of Criminal Appeal is that the learned
judges did not take a more serious view of the omission of the trial judge to make it quite clear
that the onus still lay upon the prosecution. If at the end of a trial for murder a reasonable doubt
remains in the minds of the jury whether the crime has been committed, it is their duty to acquit.
However the matter may have been regarded in former years, at the present time the Criminal
Law rests on the foundation that, apart from statutory enactment to the contrary, the prosecution
must prove the guilt of the prisoner; otherwise he must be acquitted. Earlier authorities, such as
Sir Michael Foster in the Introduction to the Discourse of Homicide in that learned judge's work
on Crown Law 2; Mackalley's case (1611) 9 Co. Rep. 65 b; Rex v. Legg (1674) Kelyng, 27; Rex v.
Oneby (1727) 2 Ld. Raym. 1484, 1493; East, Pleas of the Crown (1803), p. 224; Rex v.
Greenacre 8 C. & P. 35, 42; and Blackstone, Commentaries 3, are concerned primarily with the
definition of homicide and malice. Sir Michael Foster's description of murder is repeated in
Archbold's Criminal Pleading and Evidence 4 and Russell on Crimes.5 The proper direction to the
jury is thai which was given by Finlay J. at the former trial. That learned judge said: "The case
for the prosecution is deliberate shooting. The defence is, Not Guilty of murder. They" (the
prosecution) "prove the killing, and in the absence of explanation that is murder. The defence say
'Excusable, because accidental.' Consider whether you entertain the slightest doubt that this was
a deliberate killing. If you have no doubt, it is your duty to convict. .... If the result of a
dispassionate survey is to leave a reasonable doubt in your minds, then your duty as well as your
pleasure is to acquit." It is for the prosecution to satisfy the jury on all the evidence that the
prisoner is not an innocent man, but a guilty man. They must take the whole of the evidence into
consideration and then it is not for the prisoner to say: "My explanation is such that it must
satisfy you." It is enough for him if he says: "This is my explanation," and if the jury on
considering it are left in a reasonable doubt. Then it is their duty to acquit the prisoner. "Where, a
prima facie case having been made against him, the defendant offers an explanation, the jury
must be directed that the onus of proof of guilt is still on the prosecution, and that, if on the
whole evidence they are in doubt, they should acquit": Roscoe, Criminal Evidence. 6 This is the
result of numerous decisions: Rex v. Stoddart (1909) 2 Cr. App. R. 217, 244; Rex v. Davies
(1913) 29 Times L. R. 350; 8 Cr. App. R. 211; Rex v. Abramovitch (1914) 31 Times L. R. 88; Rex
v. Aubrey (1915) 11 Cr. App. R. 182; Rex v. Grinberg (1917) 33 Times L. R. 428; Rex v. Sanders
(1919) 14 Cr. App. R. 11; Lawrence v. The King. [1933] A. C. 699, 706
[The following cases were also referred to: Rex v. Sturgess (1913) 9 Cr. App. R. 120; Rex v.
Davies (1913) 29 Times L. R. 350; 8 Cr. App. R. 211; Rex v. Hopper (1915) 11 Cr. App. R. 136;
Rex v. Brain. (1918) 13 Cr. App. R. 197]

April 5. J. G. Trapnell K.C. and Reginald Knight for the respondent. The killing of any human
creature is homicide: Blackstone, Commentaries. 7 Felonious homicide is the killing of a human
creature without justification or excuse. 8Manslaughter is the unlawful killing of another without
malice either express or implied. 9 "When a man of sound memory, and of the age of discretion,
unlawfully killeth .... any reasonable creature in rerum natura under the king's peace, with malice
forethought, either expressed by the party, or implied by law" 10 this is murder. Then comes the
question of proving the commission of the crime. The Crown must prove that the prisoner killed
the man. The prisoner knows how he did it; formerly he could not give evidence, but he still
knew. The dead man knew, but cannot say. In the absence of evidence of others, the Court must
needs resort to inference. It considers how the death wound was inflicted; by a gun, or a knife, or
a hammer or other lethal weapon. Such facts supply evidence of malice prepense. When all the
knowledge is in the mind of the accused, it is most reasonable that he should state, or his
advocate should suggest, how the death occurred. It is not necessary to press the point that, in the
absence of other available evidence, killing is per se prima facie evidence of malice, because in
the present case death was inflicted by a lethal weapon; but even so, one cannot with a light heart
dismiss the statement of so high an authority as Sir Michael Foster 11, followed in East 12;
Blackstone, Commentaries13; and repeated in Archbold, Criminal Pleading and Evidence 14, and
Halsbury, Laws of England. 15 Moreover, the appellant's own explanation, that he intended to
frighten his wife into obedience by threatening to shoot himself, and showing her the gun which
he meant to use, discloses an unlawful intention and is sufficient evidence of malice
aforethought.
The additional facts of the note found in the pocket of his coat, and the words: "May God forgive
me for doing this but it is the best thing. .... Her mother is no good .... but I have no more
cartridges only 2 one for her and one for me," show first, that the note was written before the
deed, and secondly that he intended to shoot his wife and himself and that, if he had had a third
cartridge, he would have used it also. Those facts together show that he went to the house with a
malicious intention. If in pursuing a malicious intention a man, even by accident, kills another
person, that is murder.
In that view the case is a proper one for the application of s. 4 of the Criminal Appeal Act, 1907.

Counsel was not called on in reply.

At the end of the argument for the respondent VISCOUNT SANKEY L.C. announced that the
order of the Court of Criminal Appeal would be reversed and that the conviction would be
quashed; and that their Lordships would give their reasons at a later date.

May 23. VISCOUNT SANKEY L.C.My Lords, the appellant, Reginald Woolmington, after a
trial at the Somerset Assizes at Taunton on January 23, at which, after an absence of one hour
and twenty-five minutes, the jury disagreed, was convicted at the Bristol Assizes on February 14
of the wilful murder of his wife on December 10, 1934, and was sentenced to death. He appealed
to the Court of Criminal Appeal, substantially upon the ground that the learned judge had
misdirected the jury by telling them that in the circumstances of the case he was presumed in law
to be guilty of the murder unless he could satisfy the jury that his wife's death was due to an
accident.
The appeal came before the Court of Criminal Appeal upon March 18 and was dismissed. The
Court said "it may be that it might have been better" had the learned judge who tried the case
said to the jury that if they entertained reasonable doubt whether they could accept his
explanation they should either acquit him altogether or convict him of manslaughter only; but,
relying upon s. 4, sub-s. 1, of the Criminal Appeal Act, 1907, which provides "that the court may,
notwithstanding that they are of opinion that the point raised in the appeal might be decided in
favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of
justice has actually occurred," they dismissed the appeal.
Thereupon the Attorney-General gave his fiat certifying that the appeal of Reginald
Woolmington involved a point of law of exceptional public importance and that in his opinion it
was desirable in the public interest that a further appeal should be brought. The matter now
comes before your Lordships' House.
The facts are as follows. Reginald Woolmington is 21 years old. His wife, who was killed, was
17 years old last December. They had known each other for some time and upon August 25 they
were married. Upon October 14 she gave birth to a child. Shortly after that there appears to have
been some quarrelling between them and she left him upon November 22 and went to live with
her mother. Woolmington apparently was anxious to get her to come back, but she did not come.
The prosecution proved that at about 9.15 in the morning of the 10th Mrs. Daisy Brine was
hanging out her washing at the back of her house at 25 Newtown, Milborne Port. While she was
engaged in that occupation, she heard voices from the next door house, No. 24. She knew that in
that house her niece, Reginald Woolmington's wife, was living. She heard and could recognize
the voice of Reginald Woolmington saying something to the effect "are you going to come back
home?" She could not hear the answer. Then the back door in No. 24 was slammed. She heard a
voice in the kitchen but could not tell what it said. Then she heard the sound of a gun. Upon that
she looked out of the front window and she saw Reginald Woolmington, whose voice she had
heard just before speaking in the kitchen, go out and get upon his bicycle, which had been left or
was standing against the wall of her house, No. 25. She called out to him but he gave no reply.
He looked at her hard and then he rode away.
According to Reginald Woolmington's own story, having brooded over and deliberated upon the
position all through the night of December 9, he went on the morning of the 10th in the usual
way to the milking at his employer's farm, and while milking conceived this idea that he would
take the old gun which was in the barn and he would take it up that morning to his wife's
mother's house where she was living, and that he would show her that gun and tell her that he
was going to commit suicide if she did not come back. He would take the gun up for the purpose
of frightening her into coming back to him by causing her to think that he was going to commit
suicide. He finished his milking, went back to his father's house, had breakfast and then left,
taking with him a hack saw. He returned to the farm, went into the barn, got the gun, which had
been used for rook shooting, sawed off the barrels of it, then took the only two cartridges which
were there and put them into the gun. He took the two pieces of the barrel which he had sawn off
and the hack saw, crossed a field about 60 yards wide and dropped them into the brook. Having
done that, he returned on his bicycle, with the gun in his overcoat pocket, to his father's house
and changed his clothes. Then he got a piece of wire flex which he attached to the gun so that he
could suspend it from his shoulder underneath his coat, and so went off to the house where his
wife was living. He knocked at the door, went into the kitchen and asked her: "Are you coming
back?" She made no answer. She came into the parlour, and on his asking her whether she would
come back she replied she was going into service. He then, so he says, threatened he would shoot
himself, and went on to show her the gun and brought it across his waist, when it somehow went
off and his wife fell down and he went out of the house. He told the jury that it was an accident,
that it was a pure accident; that whilst he was getting the gun from under his shoulder and was
drawing it across his breast it accidentally went off and he was doing nothing unlawful, nothing
wrong, and this was a pure accident. There was considerable controversy as to whether a letter in
which he set out his grievances was written before or after the above events. But when he was
arrested at 7.30 on the evening of the 10th and charged with having committed murder he said: "I
want to say nothing, except I done it, and they can do what they like with me. It was jealousy I
suppose. Her mother enticed her away from me. I done all I could to get her back. That's all."
The learned judge in summing-up the case to the jury said:-
"If you accept his evidence, you will have little doubt that she died in consequence of a gunshot
wound which was inflicted by a gun which he had taken to this house, and which was in his
hands, or in his possession, at the time that it exploded. If you come to the conclusion that she
died in consequence of injuries from the gun which he was carrying, you are put by the law of
this country into this position: The killing of a human being is homicide, however he may be
killed, and all homicide is presumed to be malicious and murder, unless the contrary appears
from circumstances of alleviation, excuse, or justification. 'In every charge of murder, the fact of
killing being first proved, all the circumstances of accident, necessity, or infirmity are to be
satisfactorily proved by the prisoner, unless they arise out of the evidence produced against him:
for the law will presume the fact to have been founded in malice until the contrary appeareth.'
That has been the law of this country for all time since we had law. Once it is shown to a jury
that somebody has died through the act of another, that is presumed to be murder, unless the
person who has been guilty of the act which causes the death can satisfy a jury that what
happened was something less, something which might be alleviated, something which might be
reduced to a charge of manslaughter, or was something which was accidental, or was something
which could be justified."
At the end of his summing-up he added: "The Crown has got to satisfy you that this woman,
Violet Woolmington, died at the prisoner's hands. If they must satisfy you of that beyond any
reasonable doubt. If they satisfy you of that, then he has to show that there are circumstances to
be found in the evidence which has been given from the witness-box in this case which alleviate
the crime so that it is only manslaughter or which excuse the homicide altogether by showing
that it was a pure accident."
In the argument before the Court of Criminal Appeal cases were cited by the learned counsel on
either side and textbooks of authority were referred to, but the learned judges contented
themselves with saying "there can be no question to start with that the learned judge laid down
the law applicable to a case of murder in the way in which it is to be found in the old
authorities." They repeated the learned judge's words and said: "No doubt there is ample
authority for that statement of the law." They then relied, as I have already mentioned, upon the
proviso to s. 4 of the Criminal Appeal Act, 1907, and dismissed the appeal.
It is true as stated by the Court of Appeal that there is apparent authority for the law as laid down
by the learned judge. But your Lordships' House has had the advantage of a prolonged and
exhaustive inquiry dealing with the matter in debate from the earliest times, an advantage which
was not shared by either of the Courts below. Indeed your Lordships were referred to legal
propositions dating as far back as the reign of King Canute (994-1035). But I do not think it is
necessary for the purpose of this opinion to go as far back as that. Rather would I invite your
Lordships to begin by considering the proposition of law which is contained in Foster's Crown
Law, written in 1762, and which appears to be the foundation for the law as laid down by the
learned judge in this case. It must be remembered that Sir Michael Foster, although a
distinguished judge, is for this purpose to be regarded as a text-book writer, for he did not lay
down the doctrine in any case before him, but in an article which is described as the
"Introduction to the Discourse of Homicide." In the folio edition, published at Oxford at the
Clarendon Press in 1762, at p. 255, he states: "In every charge of murder, the fact of killing being
first proved, all the circumstances of accident, necessity, or infirmity are to be satisfactorily
proved by the prisoner, unless they arise out of the evidence produced against him; for the law
presumeth the fact to have been founded in malice, until the contrary appeareth. And very right it
is, that the law should so presume. The defendant in this instance standeth upon just the same
foot that every other defendant doth: the matters tending to justify, excuse, or alleviate, must
appear in evidence before he can avail himself of them."
Now the first part of this passage appears in nearly every text-book or abridgment which has
been since written. To come down to modern times, the passage appears in Stephen's Digest of
the Criminal Law 16; also in the well known treatise of Archbold, Criminal Pleading, Evidence
and Practice 4, which is the companion of lawyers who practise in the criminal courts. It also
appears almost textually in Russell on Crimes 5 and in the second edition of Halsbury's Laws of
England 15, which purports to state the law as on May 1, 1933, where it is said: "When it has
been proved that one person's death has been caused by another, there is a prima facie
presumption of law that the act of the person causing the death is murder, unless the contrary
appears from the evidence either for the prosecution or for the defence. The onus is upon such
person when accused to show that his act did not amount to murder." The authority for that
proposition is given as Foster, pp. 255, 290, and also the case of Rex v. Greenacre. 8 C. & P. 35
The question arises, Is that statement correct law? Is it correct to say, and does Sir Michael
Foster mean to lay down, that there may arise in the course of a criminal trial a situation at which
it is incumbent upon the accused to prove his innocence? To begin with, if that is what Sir
Michael Foster meant, there is no previous authority for his proposition, and I am confirmed in
this opinion by the fact that in all the text-books no earlier authority is cited for it. Before,
however, one considers the earlier criminal law several facts have to be remembered.
First, it was not till 1907 that the Court of Criminal Appeal was set up. It is perfectly true that
from time to time there have been famous occasions on which the Judges and Barons were called
together to give their opinion upon the law bearing on murder. Examples of this will be found; in
the year 1611, in the case of Mackalley 9 Co. Rep. 65b, all the Judges and Barons were moved to
give their opinion; in 1706, in the case of Reg. v. Mawgridge (1706) Kelyng, 119; 17 St. Tr. 57,
which case was argued before all the Judges and all of them except Lord Chief Justice Trevor
were of opinion that Mawgridge was guilty of murder; and in 1843 in the case of Reg. v.
M'Naughton (1843) 4 St. Tr. (N. S.) 847, where all the Judges gave answers to your Lordships'
House upon the test of insanity.
M'Naughton's case (1843) 4 St. Tr. (N. S.) 847 stands by itself. It is the famous pronouncement
on the law bearing on the question of insanity in cases of murder. It is quite exceptional and has
nothing to do with the present circumstances. In M'Naughton'scase (1843) 4 St. Tr. (N. S.) 847
the onus is definitely and exceptionally placed upon the accused to establish such a defence. See
Rex v. Oliver Smith (1910) 6 Cr. App. R. 19, where it is stated that the only general rule that can
be laid down as to the evidence in such a case is that insanity, if relied upon as a defence, must
be established by the defendant. But it was added that all the judges had met and resolved that it
was not proper for the Crown to call evidence of insanity, but that any evidence in the possession
of the Crown should be placed at the disposal of the prisoner's counsel to be used by him if he
thought fit. See also Archbold, 29th Edition. 17, It is not necessary to refer to M'Naughton's case
(1843) 4 St. Tr. (N. S.) 847 again in this judgment, for it has nothing to do with it.
It is true that at a later period certain cases were reserved by the judges for the consideration of
the Court of Crown Cases Reserved, but many of the propositions with regard to criminal law are
contained either in the summing-up of the judges or in text-books of authority as distinguished
from a Court sitting in banc.
The learned author of Stephen's Digest of the Criminal Law 18 has an interesting note on the
definition of murder and manslaughter. But his remarks are rather directed to the ingredients of
the crime than to the proof of it. None the less, the author does not hesitate to tread a path of very
robust criticism of the previous authorities. He speaks of the "intricacy, confusion and
uncertainty of this branch of the law." He refers to the definition of Coke (1552-1623) and says
"these passages, overloaded as Coke's manner is, with a quantity of loose, rambling gossip, form
the essence of his account of murder." He describes Coke's chapter on manslaughter as
"bewildering" and adds that Hale (1609-1676) treats manslaughter in a manner so meagre an yet
so confused that no opinion of it can be obtained except by reading through chapters 38 to 40 and
trying to make sense of them, and concludes by saying (p. 466) that Sir Michael Foster "to some
extent mitigates the barbarous rule laid down by Coke as to unintentional personal violence."
Next it must be remembered that prisoners were not entitled to be represented by counsel, except
in cases of felony, where counsel might argue the law on their behalf.
Thirdly, it must not be forgotten that the prisoner himself was not allowed to give evidence
19
before the Act passed in 1898.
Bearing these considerations in mind, I now turn to some of the cases cited to us. I doubt whether
in any of the early ones the question of the burden of proof was considered. Rather they were
concerned with the ingredients of the crime of murder. One of the first difficulties was to settle
the meaning of express and implied malice. It was not till 1825 that Bayley J, in Bromage v.
Prosser (1825) 4 B. & C. 247, gave his famous definition of malice as meaning a wrongful act,
done intentionally without just cause or excuse. The older cases were rather concerned to give
examples of what might be malice. This was so in Mackalley's case. 9 Co. Rep. 65 b the prisoner
was there accused of murdering a serjeant of London. The Courts were already considering cases
of express or implied malice, and the passage in Coke appears simply to mean that if a man does
acts calculated to kill, and actually does kill, that is evidence of malice or intent; in other words,
evidence of one of the ingredients of murder, but it does not seem to be at all concerned with
onus of proof or to support the statement of Sir Michael Foster on that point.
One of the most famous of the earlier treatises on criminal law was the History of the Pleas of
the Crown by Sir Matthew Hale. That celebrated judge died on Christmas Day, 1675. It was
known that he had left a treatise on the subject, and upon November 29, 1680, it was ordered by
the House of Commons that the executors of Sir Matthew Hale be desired to print the manuscript
relating to Crown Law and a Committee be appointed to take care of the printing thereof. It is
not said that anything appears in Hale suggesting that the burden of proving his innocence lay on
the prisoner. Looking at the edition of 1800 20 we find him again concerned with what malice is.
It is headed "Concerning murder by malice implied presumptive, or malice in law," and
Mackalley's case 9 Co. Rep. 65 b is duly cited.
As appears from Foster's Pleas of the Crown, Sir Michael Foster was familiar with Hale's treatise
(see his preface), and although in the course of his book he makes reference to Hale, he gives no
authority for the proposition which is under discussion. It cannot be doubted that at that time in
English Courts of justice the law of evidence was in a very fluid condition. Indeed in some civil
cases it differed on different circuits. See Weeks v. Sparke (1813) 1 M. & S. 679, 687, 688 and
also the note xx. in Stephen's Digest of the Law of Evidence. 21 It was only later that the Courts
began to discuss such things as presumption and onus. In Wigmore on Evidence 22, a reference is
made to the judgment of Weaver J. in the case of The State v. Brady (1902) Ia. 91 N. W. 801.
This was cited in the case of Rex v. Stoddart 2 Cr. App. R. 217, 233:-
"The use of the terms 'presumption of guilt' and 'prima facie evidence of guilt' with reference to
the possession of stolen goods has perhaps been too long indulged in by Courts and text-writers
to be condemned; but we cannot resist the conclusion that, when so employed, these expressions
are unfortunate, and often misleading. .... 'Presumptions' of guilt and 'prima facie' cases of guilt
in the trial of a party charged with crime mean no more than that from the proof of certain facts
the jury will be warranted in convicting the accused of the offence with which he is charged."
We were referred to the case of Rex v. Legg(6) Kelyng, 27, where it is said that at the Newgate
Session in 1674 "one John Legg, being indicted for the murder of Mr. Robert Wise, it was upon
the evidence agreed that if one man kill another, and no sudden quarrel appeareth, this is
murder." Mackalley'scase 9 Co. Rep. 65 b is quoted as an authority and the report goes on: "and
it lieth upon the party indicted to prove the sudden quarrel." With regard to Kelyng's Reports, the
critics have greatly differed. Sir John Kelyng was Chief Justice of the King's Bench. He died in
1671 and whatever opinion may be held about him as a judge, upon which see Foss's
Biographical Dictionary of The Judges of England 23, the critics have differed greatly upon the
value of his Reports. Lord Campbell in his Life of Kelynge, Lives of the Chief Justices 24, says
"He compiled a folio volume of decisions in criminal cases, which are of no value whatever."
But, on the other hand, there are others who regard the book as of high authority: see Wallace on
25
The Reporters .
The report of Legg's case Kelyng, 27 is meagre and unsatisfactory and cannot, I think, be held to
mean that unless the prisoner prove the sudden quarrel, he must be convicted of murder. The
word "onus" is used indifferently throughout the books, sometimes meaning the next move or
next step in the process of proving or sometimes the conclusion of the whole matter.
Mawgridge's case Kelyng, 119; 17 St. Tr. 57, already referred to, was cited to us from Kelyng's
Reports, but it was not reported by Kelyng for the simple reason that it was not tried till 1706.
Campbell, in the Lives of the Chief Justices 26, says it was reported by Holt and makes caustic
comments on Holt's English composition. It was added by Holt to his Edition of Kelyng's
Reports and is described as a case of "great expectation" and gives the history of murder trials in
English Courts from the earliest times. The case, however, is no authority for saying that the
prisoner at any time is called upon to prove his innocence; quite the contrary. It is another of
those cases which deal with malice and with what is such provocation as will make the act of
killing to be manslaughter only.
In Hawkins' Pleas of the Crown 27: "It is also agreed, that no one can excuse the killing another,
by setting forth in a special plea, that he did it by misadventure, or se defendendo, but that he
must plead 'not guilty,' and give the special matter in evidence." This points to the fact that the
verdict must be given not on any special pleading given by the prisoner but upon and as the
result of the whole of the case, and it nowhere suggests that the burden of proof either at the
beginning or at the end of a case is not on the prosecution.
The case of Rex v. Greenacre 8 C. & P. 35, 42 was certainly heard by a very distinguished judge,
Tindal, C.J. But it is to be observed that the dictum relied upon by the prosecution in this case -
namely: "that where it appears that one person's death has been occasioned by the hand of
another, it behoves that other to show from evidence, or by inference from the circumstances of
the case, that the offence is of a mitigated character, and does not amount to the crime of
murder," was contained in the summing-up of the learned judge to the jury. It is the passage in
Sir Michael Foster and this summing-up which are usually relied on as the authority for the
proposition that at some particular time of a criminal case the burden of proof lies on the prisoner
to prove his innocence. The presumption of innocence in a criminal case is strong: see Taylor On
Evidence 28, and it is doubtful whether either of these passages means any such thing. Rather do I
think they simply refer to stages in the trial of a case. All that is meant is that if it is proved that
the conscious act of the prisoner killed a man and nothing else appears in the case, there is
evidence upon which the jury may, not must, find him guilty of murder. It is difficult to conceive
so bare and meagre a case, but that does not mean that the onus is not still on the prosecution.
If at any period of a trial it was permissible for the judge to rule that the prosecution had
established its case and that the onus was shifted on the prisoner to prove that he was not guilty
and that unless he discharged that onus the prosecution was entitled to succeed, it would be
enabling the judge in such a case to say that the jury must in law find the prisoner guilty and so
make the judge decide the case and not the jury, which is not the common law. It would be an
entirely different case from those exceptional instances of special verdicts where a judge asks the
jury to find certain facts and directs them that on such facts the prosecution is entitled to succeed.
Indeed, a consideration of such special verdicts shows that it is not till the end of the evidence
that a verdict can properly be found and that at the end of the evidence it is not for the prisoner to
establish his innocence, but for the prosecution to establish his guilt. Just as there is evidence on
behalf of the prosecution so there may be evidence on behalf of the prisoner which may cause a
doubt as to his guilt. In either case, he is entitled to the benefit of the doubt. But while the
prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to
prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to
satisfy the jury of his innocence.
This is the real result of the perplexing case of Rex v. Abramovitch (1914) 11 Cr. App. R. 45,
which lays down the same proposition, although perhaps in somewhat involved language. Juries
are always told that, if conviction there is to be, the prosecution must prove the case beyond
reasonable doubt. This statement cannot mean that in order to be acquitted the prisoner must
"satisfy" the jury. This is the law as laid down in the Court of Criminal Appeal in Rex v. Davies
29 Times L. R. 350; 8 Cr. App. R. 211, the headnote of which correctly states that where intent is
an ingredient of a crime there is no onus on the defendant to prove that the act alleged was
accidental. Throughout the web of the English Criminal Law one golden thread is always to be
seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have
already said as to the defence of insanity and subject also to any statutory exception. If, at the
end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by
either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a
malicious intention, the prosecution has not made out the case and the prisoner is entitled to an
acquittal. No matter what the charge or where the trial, the principle that the prosecution must
prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it
down can be entertained. When dealing with a murder case the Crown must prove (a) death as
the result of a voluntary act of the accused and (b) malice of the accused. It may prove malice
either expressly or by implication. For malice may be implied where death occurs as the result of
a voluntary act of the accused which is (i.) intentional and (ii.) unprovoked. When evidence of
death and malice has been given (this is a question for the jury) the accused is entitled to show,
by evidence or by examination of the circumstances adduced by the Crown that the act on his
part which caused death was either unintentional or provoked. If the jury are either satisfied with
his explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if
his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to
be acquitted. It is not the law of England to say, as was said in the summing-up in the present
case: "if the Crown satisfy you that this woman died at the prisoner's hands then he has to show
that there are circumstances to be found in the evidence which has been given from the witness-
box in this case which alleviate the crime so that it is only manslaughter or which excuse the
homicide altogether by showing it was a pure accident." If the proposition laid down by Sir
Michael Foster 29 or in the summing-up in Rex v. Greenacre 8 C. & P. 35, 42 means this, those
authorities are wrong.
We were then asked to follow the Court of Criminal Appeal and to apply the proviso of s. 4 of
the Criminal Appeal Act, 1907, which says: "the Court may, notwithstanding that they are of
opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss
the appeal if they consider that no substantial miscarriage of justice has actually occurred." There
is no doubt that there is ample jurisdiction to apply that proviso in a case of murder. The Act
makes no distinction between a capital case and any other case, but we think it impossible to
apply it in the present case. We cannot say that if the jury had been properly directed they would
have inevitably come to the same conclusion.
In the result we decline to apply the proviso and, as already stated, we order that the appeal
should be allowed and the conviction quashed.
My noble and learned friend Lord Atkin, who has to preside at the Privy Council to-day, asks me
to say that he concurs in the opinion which I have delivered.

LORD HEWART C.J.My Lords, I concur.

LORD TOMLIN.My Lords, I also concur.

LORD WRIGHT.My Lords, I also concur.

Order of the Court of Criminal Appeal

reversed, and conviction quashed: Further
ordered that the cause be remitted back to the
Court of Criminal Appeal to do therein as shall
be just and consistent with this judgment.
Lords' Journals, April 5, 1935.

Solicitors for appellant: C. Butcher & Simon Burns, for Clarke, Willmott & Clarke, Taunton.
For the respondent: The Director of Public Prosecutions.
1
Foster's Crown Law (1762), p. 255.
2
(1762) Clarendon Press, p. 255.
3
Book IV., c. 14.
4
29th Ed. (1934), p. 873.
5
8th Ed. (1923), Vol. 1, p. 615.
6
15th Ed. (1928), p. 300.
7
Book IV., Ch. 14, passim.
8
Ibid; p. 188.
9
Ibid; p. 191.
10
Coke, 3 Inst. 47.
11
Crown Law (1762), p. 255.
12
Pleas of the Crown (1803), p. 224.
13
Book IV., c. 14, pp. 200, 201.
14
29th Ed. (1934), p. 873.
15
2nd Ed. (1933), Vol. 9, p. 426.
16
7th Ed. (1926), p. 235.
17
(1934) 18, 874.
18
7th Ed. (1926), pp. 461, 462.
19
The Criminal Evidence Act, 1898 (61 & 62 Vict. c. 36).
20
Chapter 37, Vol. 1, p. 454.
21
11th Ed. (1930), p. 182.
22
Vol. 4, section 2513, note on page 3562.
23
(1870), p. 381.
24
(1849) Vol. 1, p. 511.
25
London (1882), p. 327. [F. F. Heard, the editor of this reprint, made additions and alterations in
Wallace's text without notice to the reader. Wallace himself (3rd ed. Philadelphia 1855, p. 209)