ADMISSIONS

Under the Evidence Act an admission is defined as a statement oral or written which suggests an
inference to a fact in issue or a relevant fact made by one of the parties to the proceedings.
Admissions are classified into
1 Formal Admissions;
2 Informal Admissions;

Informal admissions are those admissions that are made before any proceedings are anticipated
and this is covered at Section 17 to 24 of the Evidence Act.

Formal admissions are made in the context of specific proceedings and the effect of formal
admissions is that they dispense with proof with regard to the be made. They will be made in
answer to a notice to admit and they could also be made by Affidavit. The distinction between
formal admissions is that formal admissions are made with respect to proceedings while informal
are made with respect to anticipated proceedings.

In the area of criminal law, admissions will be under what is called confessions. Sections 25 –
32 deal with confessions.

According to Section 24 admissions are not conclusive proof of the matters that they admit but
they could operate as estoppels and many writers on S. 24 wonder why the legislators put that
provision knowing that under Common Law Admissions if admitted are conclusive proof. But
essentially we are saying even though they are not conclusive they amount to estoppel. The idea
of estoppel in admission is to prevent a person to assert things that are at variance with things
they had admitted before.
Section 61 deals with facts admitted in Civil Proceedings is to the effect that no fact need to be
proved the main principle is that once you admit certain facts, you will not be required to
prove those facts but unless the court may by discretion require those facts to be proved.

PRESUMPTIONS:

These are inferences that a court may draw, could draw or must draw. Presumptions are
devices that entitle a court to pronounce on a particular issue not withstanding the fact that
there is no evidence or there is insufficient evidence.

The inference that the court may draw could be affirmative or dis-affirmative (on the yes or on
the no). Presumptions enable a court to find a fact to exist or to find a fact not to exist.
Essentially presumptions will have effect on the burden of proof. If we are saying that
presumptions will help the court to find a certain fact to exist, it will have an effect on what
burden of proof a person will have.

There are 3 categories of presumptions:

1. PRESUMPTIONS OF FACTS these are inferences that may be drawn upon the
establishment of a basic fact. The operative word in these presumptions is ‘may’.
When you find a basic fact to exist, you are invited to come to court. There is an
invitation to the court to draw a certain inference.

2. REBUTTABLE PRESUMPTIONS OF LAW They are inferences that must be

drawn in the absence of conclusive evidence to the contrary. A good example is the
presumption of innocence, that every person accused of a crime is innocent until
proved guilty. Until there is conclusive evidence dispelling the innocence of the
accused person. Essentially these presumptions are said to be mandatory until you
have other conclusive evidence to the contrary.

3. IRREBUTTABLE PRESUMPTIONS OF LAW: These must be drawn no matter

how much evidence exists to the contrary. Once you establish the basic fact
pertaining to the presumption then you have to draw the inference that will dispel that
presumption. They will usually be drawn from statutory provisions. They are public
policy pronouncements, which decree that in the interest of public certain matters are
decreed to be a certain way e.g. an 8 year old boy is not capable of carnal knowledge.
Section 4 of the Evidence Act defines presumptions of facts and rebuttable presumptions of
law
(1) “Whenever it is provided by law that the court may presume a fact, it
may either regard such fact as proved, unless and until it is disproved, or
may call for proof of it.”
 (2) Whenever it is directed by law that the court shall presume a fact, it shall
regard such fact as proved, unless and until it is disproved.”
(3) When one fact is declared by law to be conclusive proof of another, the
court shall, on proof of the one fact, regard the other as proved, and shall
not allow evidence to be given for the purpose of disproving it.

1. PRESUMPTIONS OF FACTS: (DISCRETIONARY PRESUMPTIONS)

They are inferences that may be drawn. Section 4 (1).

Evidence Act Section 77(2). The court may presume that the signature to any such document
is genuine and that the person signing it held the office and qualifications which he professed
to hold at the time when he signed it.”

The court is allowed to presume and it is incumbent on the person who argues otherwise to
prove their case.

Section 92. The court may presume that any document purporting to be a copy of a
judgment or judicial record of any country not forming part of the Commonwealth is genuine
and accurate, and that such judgment or record was pronounced or recorded by a court of
competent jurisdiction, if the document purports to be certified in any manner which is
certified by a Kenya consular officer or diplomatic representative in or for such country to be
the manner commonly in use in that country for the certification of copies of judgments or
judicial records.

Section 93. The court may presume that any book, to which it may refer for
information on matters of public or general interest, and that any published
map or chart, the statements of which are admissible facts and which is
produced for its inspection, was written and published by the person and at
the time and place by whom or at which it purports to have been written or
published.

There are certain things that are non-contestable and one should not waste the courts time
trying to prove them.
 Section 113 this section used to help in probate matters but once the Law of Succession was
put into being it was repealed. This was important when we would talk about proof of death
within 30 years.

Section 119. The Court may presume the existence of any fact which it thinks likely to have
happened, regard being had to the common course of natural events, human conduct and
public and private business, in their relation to the facts of the particular case. (Presumption
of likely facts)

We are talking about an inference that may be drawn regarding natural events, human
conduct and the common course of natural events. You infer from what you see. If a person
is caught with stolen goods, it is presumed that he stole them or that he knows who stole
them. If they cannot adequately explain how they came to possess stolen goods, then the
incumbent of proof is on them to say how the owner came to lose the goods.

The ability of the court of law to draw an inference

Presumption of guilt knowledge. From experience we can infer that a woman who is in
possession of stolen goods after the theft and cannot give account of those goods is either the
thief or has received them knowing them to be stolen. We are talking of recent possession.

In Zus V. Uganda the question arose, the court here refused to apply the doctrine of recent
possession after the accused was found in possession of a stolen bicycle 7 months after it had
been recorded lost. The trial court had actually applied that doctrine to convict the thief of both
the theft and receiving stolen goods because the accused had not given any reasonable
explanation by how he had come upon the bicycle. The Appeal Court held that 7 months cannot
be described as recent and consequently the court of appeal quashed the conviction for theft
while upholding the conviction for receiving stolen goods.

PRESUMPTION OF LIKELY FACTS S. 119 (IMMUTABILITY OF THINGS)

A thing or state of things which has been shown to exist within a period shorter than that within
which such things or state of things usually cease to exist is presumed to be still in existence. An
example is given in the case of

Kanji & Kanji V. R. 1961 E.A 411 C.A

In this case a sisal factory employee’s arm was amputated by a sisal decorticator in April 1960.
An examination done by a Mr. Perkin in September 1960 showed that there was no barrier or
fence to protect the employees when feeding the machine with sisal leaves. The firm was held
liable for failing to provide ample barriers to protect employees from the machine and this
finding was held on the basis of the presumption of the immutability of things. On appeal the
factory owner had argued that there was some form of fence at the Factory when the accident
occurred in 1960. This barrier was not found to be in place in September when Mr. Perkins did
his inspection. The Court held that the Magistrate was correct in presuming that the machine
was in the same condition in April as it was in September 1960. It is unlikely that there was a
barrier in April which disappeared by September but the factory owners were welcome to bring
in evidence to prove that there had been a barrier in April.

OFFICIAL & JUDICIAL ACTS ARE REGULARLY PERFORMED

(PRESUMPTION OF REGULARITY)

It is based on sound public policy which imputes good faith on official and judicial conduct. The
burden is on he/she who alleges irregularity to bring the evidence to disprove or establish the
irregularity. Looking at how our courts run, this might not be the way to go. For instance if your
file gets lost, will you allege that the file got lost by the court.

THE COMMON COURSE OF BUSINESS HAS BEEN FOLLOWED IN PARTICULAR

CASES

The basis of this presumption is business practice. If some business has been carried out
pursuant to this common course, it is going to be presumed to be so unless the person alleging
otherwise brings evidence to the contrary. If you have a quarrel with the common course of
business, it is incumbent on you to prove that the common course of business was not followed.

EVIDENCE WHICH COULD BE PRODUCED AND IS NOT PRODUCED WOULD IF

PRODUCED BE UNFAVOURABLE TO THE PERSON WHO WITHHOLDS IT:

This again is something that you draw as a worldly-wise person. If someone is withholding
evidence, it would be presumed that the person withholding the evidence is doing so because It
Is against them and it is incumbent upon the person withholding the evidence to show that it is
not so.
ACCOMPLICES ARE UNWORHTY OF CREDIT & THAT THEIR EVIDENCE
SHOULD NOT BE USED TO CONVICT UNLESS IT IS CORROBORATED

There are certain witnesses who are held suspect and accomplices are some of these witnesses.
The reasons for the unworthiness of the evidence are that an accomplice is a participant in the
offence and such a person would be highly tempted to pass the buck. Having participated in the
commission of the offence an accomplice is generally an immoral person and their word should
not be taken without corroboration. An accomplice is likely to favour the state in hope for a
pardon. It is necessary to get independent testimony on material particulars.

Davies V. DPP 1954 AC 378

The Appellant together with other youths attacked another group with fists. One of the members
of the other group subsequently died of stab wounds inflicted by a knife. Six youths including
the Appellant and one L were charged with murder but finally the Appellant alone was convicted.
L and the others were convicted of common assault. At the Appellant’s trial, L gave evidence for
the prosecution. Referring to an admission by the Appellant of the use of a knife by him. The
Judge in this case did not warn the Jury on the danger of accepting L’s evidence without
corroboration. On Appeal the Appellant was saying that he was wrongly convicted because of
lack of this warning on the part of the judge. The court held that there was no good reason for
quashing the conviction because L did not know before the murder that any of his companions
had a knife. Essentially the court held that L was not an accomplice in the crime of murder. The
court here defined accomplices as persons who are Participes Criminis in respect of the actual
crime charged whether as principal participants before or after the fact. It included people who
procured, aided or abetted in the commission of the crime. The Court was trying to exonerate L
from being a participant. He did not participate in the stabbing because he was not aware that his
colleague had a knife.

2.REBUTTABLE PRESUMPTIONS OF LAW:

To rebut this presumption you need conclusive evidence. These are presumptions that are
decreed by law. A good example is the presumption of genuineness in a document purporting to
be the Kenya Gazette. There is also the presumption that a person between 8 and 12 is not
criminally liable unless it can be shown that he knew that his action was morally and legally
wrong. Once you establish the basic fact, then the person could not be exposed to criminal
liability unless you bring evidence to show that he knew that what he did was legally and
morally wrong.

Section 83 Presumptions as to documents

“(1) The court shall presume to be genuine every document purporting to be a

certificate, certified copy or other document which is—

(a) declared by law to be admissible as evidence of any particular fact; and

(b) Substantially in the form, and purporting to be executed in the manner, directed
by law in that behalf; and
(c) Purporting to be duly certified by a public officer.
(2) The court shall also presume that any officer by whom any such document purports to be
signed or certified held, when he signed it, the official character which he claims in such
document.

To be able to disprove documents under this act you have to bring evidence.

Records of Evidence

Section 84 Whenever any document is produced before any court, purporting to be a record
or memorandum of any evidence given in a judicial proceeding or before any officer authorized
by law to take such evidence, and purporting to be signed by a Judge or magistrate or any such
officer as aforesaid, the court shall presume—

(a) that the document is genuine;

(b) that any statements as to the circumstances in which it was taken, purporting to be
made by the person signing it, are true; and
(c) that such evidence was duly taken.
The use of the word ‘shall’ documents are presumed to be genuine.

Section 85. The production of a copy of any written law, or of a copy of the Gazette
containing any written law or any notice purporting to be made in pursuance of a written law,
where such law or notice (as the case may be) purports to be printed by the Government Printer,
shall be prima facie evidence in all courts and for all purposes whatsoever of the due making and
tenor of such written law or notice.

There is a public policy that such a documents shall be genuine unless there is conclusive
evidence to the contrary.

Sections 86, 87 and 88,

Section 86: (1) The court shall presume the genuineness of every document purporting to
be—

(a) London Gazette, the Edinburgh Gazette, or the official Gazette of any country in
the Commonwealth.
(b) A newspaper or journal;
(c) A document directed by any law to be kept by any person, if such document is
kept substantially in the form required by law and is produced from proper
custody.
(2) Documents are said to be in proper custody if they are in the place in which and under the
care of the person with whom they would naturally be; but no custody is improper if it is
proved to have had a legitimate origin, or if the circumstances of the particular case are such
as to render such an origin probable.

Section 87 Where any publication or part thereof indicates or purports to indicate the name of
any person by or on behalf or under sponsorship of whom, or the place at which or date on
which, such publication or any part thereof was contributed, it shall, in any proceedings for an
offence under any written law or for contempt of any court, be presumed, until the contrary is
proved, that such publication or part thereof was contributed, by or on behalf or under the
sponsorship of such person, or at such place or on such date, as the case may be.

Use of the word ‘shall’ all publications will be deemed to have been published, edited,
printed in the place that they are said to have been published unless you can bring evidence
to the contrary.

Section 88: When any document is produced before any court, purporting to be a document
which, by the law if force for the time being in England, would be admissible in proof of any
particular in any Court of Justice in England, without proof of the seal or stamp or signature
authenticating it, or of the judicial or official character claimed by the person by whom it
purports to be signed—

(a) the court shall presume that such seal, stamp or signature is genuine, and that the
person signing it held, at the time when he signed it, the judicial or official
character which he claims in such document; and
(b) the document shall be admissible for the same purpose for which it would be
admissible in England.
Section 89t3 (1) The court shall presume that maps or plans purporting to be made or
published by the authority of the Government, or any department of the Government, of any
country in the Commonwealth were so made or published and are accurate.

(2) Maps or plans specially made for the purposes of any cause or other
proceeding, civil or criminal, must be proved to be accurate.
It talks of maps or plans purporting to have been published by the government are presumed to
be accurate unless you produce evidence to the contrary. Those that emanate from the
government will be presumed to be accurate.

Section 90. The court shall presume the genuineness of every book purporting to be printed or
published under the authority of the Government of any country and to contain any of the laws of
that country, and of every book purporting to contain reports of decisions of the courts of any
country.

Laws and Judicial Reports are presumed to be accurate.

Section 91. The court shall presume that every document purporting to be a power of attorney,
and to have been executed before and authenticated by a notary public or commissioner for oaths
or any court, judge, magistrate, or Kenya consular officer or diplomatic agent, was so executed
and authenticated.

Section 95 the court shall presume that every document called for and not produced after notice
to produce was attested, stamped and executed in the manner required by the law.

You are talking about presumption as to due execution.

Section 92. The court may presume that any document purporting to be a copy of a judgment
or judicial record of any country not forming part of the Commonwealth is genuine and accurate,
and that such judgement or record was pronounced or recorded by a court of competent
jurisdiction, if the document purports to be certified in any manner which is certified by a Kenya
consular officer or diplomatic representative in or for such country to be the manner commonly
in use in that country for the certification of copies of judgements or judicial records.

Section 93. The court may presume that any book, to which it may refer for information on
matters of public or general interest, and that any published map or chart, the statements of
which are admissible facts and which is produced for its inspection, was written and published
by the person and at the time and place by whom or at which it purports to have been written or
published.

Section 94. The court may presume that a message forwarded from a telegraph office to the
person to whom such message purports to be addressed, corresponds with a message delivered
for transmission at the office from which the message purports to be sent; but the court shall not
make any presumption as to the person by whom such message was delivered for transmission.

The presumption of facts distinguished by use of the word may.

PRESUMPTION OF DEATH

Section 118 (a) 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.

If a person has not been heard of for 7 years by people who would have heard from him he is
presumed dead for purposes of expediting matters. It is a rebuttable presumption of law
premised on length of time of absence of a person. Seven years is arbitrary. The people likely to
hear from such a person are members of the person’s immediate family.

For the presumption to hold the persons have to be,

1. There are people who would likely to have heard from that person in that period.
2. That those persons have not heard from the person;
 3. All due enquiries have been made as appropriate in the circumstances.
Chard V. Chard (1956) 2 AER 259

In this case 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.

Prudential Assurance V. Edmonds

This was an action based on life insurance. The issue was whether the defendant was dead or
alive. The defence was that the defendant was not dead. The family gave evidence of not having
heard from the man for more than 7 years. However, his niece had written to her mother from
Australia stating to have seen him in the street in Melbourne but that he was lost in the crowds
before she could speak to him. The court here held that the presumption of death could not hold
in the light of this evidence by the niece.

Re Phenes Trusts

Case dealing with a person’s inheritance.

PRESUMPTION OF MARRIAGE:

When does the presumption of marriage arise? This arises in two situations,

1. Where there has been a ceremony of marriage and subsequently cohabitated. If the
parties had capacity to contract a marriage then the law presumes that they are validly
married. You establish presumption of marriage through ceremony and cohabitation.
 One talks of formal validity of the marriage – this is the law of the place where you
purport to have gotten married (i.e. law of the locus or lex loci of celebration of the
marriage) once it is admitted that a marriage was celebrated between 2 persons who
intended to marry then the formal validity is presumed to exist.
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 Piers’ 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.

Maherdavan V. Maherdavan

Deals with a marriage. Whether it was valid or not valid (formal validity or conforming to
the law of the land)

2. Essential validity: this essentially speaks to people living together as man and wife.
This will go to prove of the ceremony itself. The law here is liberal. There does not
have to have been a ceremony at the Registrar’s office, it could have been a
customary law marriage.
R V. Shaw (1943) Times Law Report 344

This was a case of bigamy where there was proof of celebration of a prior marriage
and the accused did not give evidence to rebut this evidence. The man though he
denied did not bring evidence to rebut.

3. COHABITATION: This is where a man and woman live together and hold
themselves as man and wife to all whom they interact with. There is a presumption
that they are married. That at some point they got married.ReTaplin
Mary Njoki V. John Kinyanjui Mutheru & Others CA 71 OF 194

Mary Njoki was a girlfriend of the deceased since her university days and his at the school of
law. They were to be seen together during the holidays. He would save some money from
his allowance and send to her at campus. After their graduation they lived together at
different places and then the deceased expired. Njoki sought a share of the deceased estate.
This move was opposed by the deceased’s brothers who argued that she was not a wife. The
court held that the presumption of marriage could not be upheld here. The judges stressed
the need for quantitative and qualitative cohabitation. Long and having substance. They
gave examples as in having children together, buying property together which would move a
relationship from the realm of concubinage to marriage.

Aronegary V. Sembecutty

It was held that where it is proved that a man and a woman have gone through a form of
marriage, the law will presume unless the contrary be proved, that they were living together
in consequence of a valid marriage and not in a state of concubinage.

Case V. Ruguru [1970] E.A. 55

Where the Plaintiff a white man was cohabitating with the defendant after a while the
relationship became sour. It was alleged that the plaintiff sued for eviction of the Defendant
on trespass and to his defence the Plaintiff called evidence that he had actually been married
to a white woman in 1996 and the marriage had not been dissolved. He admitted having lived
with the Defendant for sometime and having paid Kshs 3,000/= as dowry. Evidence showed
that Kshs 3,000/= was not dowry and that no ram had been slaughtered as required by
customs. The court held that as a mere licensee the Defendant was liable for eviction for
trespass.

HOTTENSIAH WANJIKU YAWE V. PUBLIC TRUSTEE C. A. 13 of 76

Yawe, a person from Uganda resident in Nairobi was killed in a road accident in Uganda in
1972. He was a pilot with East African Airways and lived in Nairobi West. After his death,
the Appellant Wanjiku claimed to be his widow and claimed that she had 4 children. Some
Ugandan claimants however denied that she was his wife and that the deceased was not
married. Evidence was called which showed that the deceased lived with the Appellant as a
wife and also when he applied for a job he had named the Appellant as a wife and the two
were reputed as man and wife and cohabited as man and wife for over 9 years.

The Court held that long cohabitation as man and wife gives rise to presumption of marriage
and only cogent evidence to the contrary could rebut such a presumption.

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.

KIZITO CHARLES MORAA V. MRS MARY ROSE VERNOUR ALIAS ROSEMARY

MORAA. C.A. NO. 61 OF 1984.

The Appellant sued for trespass and various acts of nuisance and a declaration that the
Respondent was never his wife. The Respondent had been married to a Mr. Vernour who had
fathered one of her children and they had gotten married in a marriage of convenience. She
had been a headmistress and a pregnancy would have embarrassed her. Mr Vernour left for
England whereupon she moved to stay with the Appellant for 4 years and had 3 children.
Trouble started when they had a mentally retarded child. It was argued in court on her behalf
that a presumption of marriage be held. The court held that no marriage could be held and the
marriage between her and Mr Vernour had not been over, she had no capacity to marry and
her cohabitation was adulterous which had unfortunately brought forth children.

3.IRREBUTABLE PRESUMPTIONS OF THE LAW

 Presumption of legitimacy Section 118 the fact that any person was born during the
continuance of a valid marriage between his mother and any man, or within two hundred and
eighty days (280) after its dissolution, the mother remaining unmarried, shall be conclusive
proof that he is the legitimate son of that man, unless it can be shown that the parties to the
marriage had no access to each other at any time when he could have been begotten.

Gordon V. Gordon (1903) A C 141

The husband brought divorce proceedings against the wife on grounds of adultery. Divorce
was granted and the custody of the children was given to the husband. The wife applied for
variation on the grounds that one of the children was not the natural child of the father but a
son of the correspondent. The court held that sexual intercourse between a man and wife
must be presumed and nothing can bastardise a child born in wedlock.

Poulet Peerage (1903) AC 395 (Presumption of Legitimacy)

When there is an irrebuttable presumption of the law, you cannot bring evidence here, a child
under 8 cannot commit a crime and a boy of under 12 years cannot know a person carnally.

The reason you have presumptions is to save the court time. On the other hand, there are some
things that should not be brought under court inquisition.

The difference between of law and presumptions of facts.