Hearsay Evidence

The Meaning of Hearsay: A Detailed Explanation with

Statutory Provisions and Case Law
Hearsay evidence occupies a central place in the law of evidence, especially
within common law systems like Kenya’s. It refers broadly to any out-of-court
statement presented in court to prove the truth of the matter asserted in that
statement.
This type of evidence is generally inadmissible due to concerns over reliability
and fairness, primarily because the person who made the statement is not
present in court to be cross-examined under oath, and their demeanor cannot
be assessed by the trial court.
Under Section 63 of the Evidence Act (Cap. 80 of the Laws of Kenya), oral
evidence must, as a general rule, be direct. The section provides that:
"Oral evidence must in all cases whatever be direct; that is to say—
(a) if it refers to a fact which could be seen, it must be the evidence of
a witness who says he saw it;
(b) if it refers to a fact which could be heard, it must be the evidence of
a witness who says he heard it;
(c) if it refers to a fact which could be perceived by any other sense or in
any other manner, it must be the evidence of a witness who says he
perceived it by that sense or in that manner..."
This statutory foundation aims to ensure that evidence adduced is first-
hand, promoting the accuracy and reliability of the fact-finding process.
The central concern with hearsay is that the original declarant is not present
in court, and therefore, cannot be cross-examined—a fundamental safeguard
of adversarial trials. As such, hearsay is excluded unless it falls under an
exception allowed either by statute or common law.
However, not all statements made outside court are considered hearsay. The
key test is whether the statement is being introduced to prove the truth of its
contents. If a statement is being introduced merely to show that it was made,
or to establish a party's state of mind, or the effect on a listener, it is not
hearsay. This distinction is well illustrated in several leading cases.
In Subramaniam v Public Prosecutor [1956] 1 WLR 965, the court held that
threats made by terrorists to the accused were not hearsay, as they were not
offered to prove that the threats were true, but rather to show why the accused
acted the way he did. This case is foundational in distinguishing between hearsay
and non-hearsay uses of out-of-court statements.
Conversely, in Myers v DPP [1965] AC 1001, the House of Lords held that
business records prepared by someone who was not available to testify
amounted to hearsay and were inadmissible, because the original maker of the
record was not in court and the evidence was tendered to prove the truth of
what was recorded.
Further, in Patel v Comptroller of Customs [1966] AC 356, customs officers
found bags labeled "Produce of Morocco." These labels were held inadmissible
as hearsay, because the person who wrote them could not be cross-examined,
and the labels were used to prove that the contents originated from Morocco.
Similarly, in Tenywa v Uganda [1967] EA 102, a report regarding a bicycle’s
serial number was found to be hearsay where the expert who prepared the
report was not called to testify. The court emphasized that documentary or
expert evidence must be adduced by a witness subject to cross-examination to
be admissible.
The Kenyan courts have consistently followed this strict view of hearsay,
requiring that evidence be given by witnesses with first-hand knowledge. This
approach is rooted in ensuring that justice is done and seen to be done, as
required by Article 50 of the Constitution of Kenya, which guarantees a fair trial,
including the right "to challenge evidence presented against a party."
In sum, hearsay evidence is generally inadmissible under Kenyan law unless it
falls under specific statutory exceptions, such as those under Sections 33 to 39 of
the Evidence Act, or recognized common law exceptions, which are addressed in
subsequent parts of this study. The exclusion of hearsay maintains the integrity
of
the trial process by ensuring that only reliable, testable evidence is admitted
into court.
The Exclusionary Rule Against Hearsay
The exclusionary rule against hearsay is a foundational principle in the law of
evidence, particularly within adversarial legal systems like that of Kenya. It
operates as a safeguard to ensure that only reliable and testable evidence is
presented in court. The rule holds that hearsay—defined as an out-of-court
statement introduced to prove the truth of the matter asserted—is generally
inadmissible unless it falls within specific exceptions recognized by statute or
common law.
The rationale for this rule is procedural fairness and evidentiary reliability. In a
trial, each party has the right to cross-examine the witnesses against them.
Hearsay undermines this right, as the original declarant is not in court, not under
oath, and not subject to cross-examination, depriving the court of key tools to
assess the credibility of the evidence. As such, hearsay is excluded not merely for
technical reasons but because it violates the core principles of natural justice and
due process, as guaranteed under Article 50(2) of the Constitution of Kenya,
which provides the right to a fair trial.

Statutory Foundation – The Evidence Act (Cap. 80)

The exclusionary rule is embedded in several provisions of the Evidence Act,
most notably:
 Section 63: Requires that oral evidence be direct.
 Section 33: Provides a limited list of situations in which hearsay is
admissible, such as where the declarant is dead or cannot be
found.
 Section 35: Permits the use of written statements made in the course
of duty or under special authority in certain conditions.
 Section 34: Allows the use of testimony from previous judicial
proceedings where the witness is unavailable and where the other party
had an opportunity to cross-examine.
These sections carve out exceptions, but the general position remains one of
exclusion unless clearly justified.

Illustrative Case Law

1. Junga v R [1952] AC 480
The accused was convicted partly based on a statement made by a police
informer who was not called to testify. The conviction was quashed
because admitting the statement denied the accused the opportunity to
cross- examine the declarant. The court emphasized that reliance on
hearsay without the ability to test its veracity through cross-examination is
a serious procedural error.

2. Myers v DPP [1965] AC 1001

The House of Lords reaffirmed the exclusionary rule by rejecting business
records in microfilm format. These records were created by persons not
in court, and since the statements within them were being used to prove
the truth of their content, they were inadmissible hearsay.

3. Teper v R [1952] AC 480

A woman’s statement that “Your place is burning and your husband is
running away” was excluded as hearsay because she was not called to
testify, and the statement was used to prove that the accused was
fleeing the scene—a fact in issue.

4. Tenywa v Uganda [1967] EA 102

The court disallowed expert evidence in the form of a written report
because the expert was not called to give oral testimony and be subject
to cross-examination. The court held this to be a classic instance of
inadmissible hearsay.

5. Patel v Comptroller of Customs [1966] AC 356

Labels on imported bags were considered hearsay as the individual who
affixed the labels was not in court. The labels were intended to prove the
country of origin, making their truth central to the issue and hence
inadmissible under the hearsay rule.
The Purpose of the Exclusionary Rule
The exclusionary rule ensures:

 That the evidence presented is reliable and verifiable;

 That the accused's right to confront witnesses is preserved;
 That judicial decisions are based on tested and scrutinized evidence;
 That the integrity of the trial process is maintained.
It also guards against trial by rumor or second-hand assertions, particularly
in serious criminal cases where the stakes involve liberty or even life.
It is crucial to understand that not all out-of-court statements are hearsay. If a
statement is introduced for purposes other than proving the truth of what was
said—such as to show the state of mind of a person, the fact that a warning
was given, or to explain conduct—it may be admissible.
This was clarified in Subramaniam v Public Prosecutor [1956] 1 WLR 965, where
threats made by terrorists were admitted not to prove the truth of the threats
but to explain why the accused acted under duress. The Privy Council held that
such evidence did not constitute hearsay, and thus was admissible.
Scope of the Exclusionary Rule Against Hearsay: A Detailed
Analysis
The scope of the exclusionary rule against hearsay addresses the circumstances
under which the rule applies, the types of evidence it excludes, and the
nuanced boundaries between what is hearsay and what is not. While the
general rule is that hearsay is inadmissible in court, determining whether a
particular piece of evidence falls within this prohibition involves a careful
consideration of form, purpose, and content.

1. Broad Coverage of the Rule

The rule excludes not only oral statements but also written documents and
even implied conduct if these are introduced to prove the truth of their
contents. This means that hearsay can arise in the form of:
 Oral statements made outside court,
 Written documents, including letters, reports, forms, labels, and
diary entries,
 Non-verbal conduct (like nodding or pointing) intended as an assertion.
This broad coverage is consistent with Section 63 of the Evidence Act (Cap. 80),
which requires that all oral evidence be direct. Direct evidence means the
person who perceived the event with their own senses must testify in court.

2. When the Rule Applies

The hearsay rule applies only when the statement is tendered to prove the
truth of the matter asserted. If the statement is being offered for some other
purpose, it may not be hearsay at all.
For instance, in Subramaniam v Public Prosecutor [1956] 1 WLR 965, the court
held that a statement made to the accused by terrorists was not hearsay because
it was used to explain the accused’s conduct, not to prove the truth of what the
terrorists said. Thus, the scope of the hearsay rule is function-driven, focusing
not on the nature of the statement, but how it is used in the proceedings.

3. Examples of Excluded Evidence Under the Rule

The following examples illustrate how the rule operates in practice:

 Myers v DPP [1965] AC 1001: Factory records stored on microfilm
were excluded because they were used to prove the truth of the
vehicle manufacturing process, but the makers of the entries did not
testify. The evidence was hearsay and inadmissible.
 Patel v Comptroller of Customs [1966] AC 356: A label stating “Produce
of Morocco” was considered hearsay and inadmissible because the
person who wrote it was not in court to be cross-examined.
  Tenywa v Uganda [1967] EA 102: A police report describing a bicycle’s
serial number was excluded as hearsay because the person who prepared
the report did not testify. The court emphasized that such evidence was
not direct and therefore inadmissible unless an exception applied.

4. When the Rule Does Not Apply (Non-Hearsay Purposes)

Statements may be admitted not to prove their truth, but for other legitimate
purposes:
 To show that the statement was made (regardless of its truth),
 To establish a party’s knowledge or notice,
 To prove state of mind or intention,
 To explain subsequent conduct of the listener.
Again, Subramaniam v Public Prosecutor is key here. The Privy Council drew a
distinction between assertive uses (which fall under hearsay) and non-
assertive uses (which do not).

5. Statutory Exceptions: Section 33 of the Evidence Act

Although the scope of the exclusionary rule is wide, it is not absolute. The Evidence
Act provides exceptions under Section 33, which permits the admission of
certain statements made by persons who:
 Are dead,
 Cannot be found,
 Are incapable of giving evidence,
 Cannot attend without unreasonable delay or expense.
For the statement to be admissible under this section, it must also fall into one of
the enumerated categories, such as:
 Declarations against interest,
 Dying declarations,
  Statements made in the course of duty,
 Statements about pedigree, public rights, etc.
Even within this statutory framework, the courts require a high threshold of
necessity and reliability before admitting such evidence.

6. Procedural Safeguards
When hearsay is admitted under an exception, courts often demand corroboration
or indicia of reliability, especially in criminal trials. In the Kenyan context, for
instance, dying declarations (Section 33(a)) are generally not sufficient on their
own for a conviction, unless independently corroborated.
Moreover, Section 144(1) of the Evidence Act allows the court to question the
party seeking to admit hearsay on the manner in which it is admissible, and
requires proof of preliminary facts, such as the declarant's unavailability.

7. The Exclusionary Rule in Practice: Importance of Application

The scope of the hearsay rule is not merely academic—it is crucial in practice. In
criminal law, improperly admitting hearsay can lead to wrongful convictions. In
civil law, it can unfairly tip the scales in disputes over property, contracts, or
torts. Courts are therefore vigilant about ensuring that any evidence admitted is
subject to adversarial scrutiny—a hallmark of fair trial standards.

Hearsay Admissible at Common Law – Statements in Public Documents

One of the most important exceptions to the hearsay rule at common law—and
reflected in Kenyan statutory law—is the exception concerning statements made
in public documents. This exception is grounded in the presumption that certain
official records are created in the ordinary course of public duty and are
therefore likely to be reliable. Because it would be impractical and unnecessary
author of every official document,
such records are admissible even if
they constitute hearsay.
to call the
Statutory Provision: Section 38 of the Evidence Act (Cap. 80,
Laws of Kenya)
Section 38 provides that:
“Statements as to any law contained in a 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, or of any part of it, and statements as
to matters of public or general interest contained in published books or other
documents purporting to be written or compiled by persons having authority to
do so, are admissible.”
This provision reflects both the public document and published reference works
exceptions, and it closely aligns with the English common law position.

Requirements for Admissibility of Statements in Public

Documents
For a statement in a public document to be admissible as an exception to hearsay:
1. The document must be made by a public officer (or someone in a
similar capacity),
2. The statement must be made in the course of duty, i.e., it must relate
to the function of the office,
3. The document must have been intended to be permanent or official,
and accessible or available to the public,
4. There must be no motive to misrepresent—documents created in
the course of routine duties are presumed to be free of bias or
personal interest.

Case Law Illustrating the Principle

(1) Ladha & Others v Patel & Others (1960) EA 742
This case is a leading East African authority on what constitutes a public
document. The court held that a document is “public” if it is made by a public
official acting in the course of duty and is intended to be available for public use
or inspection.
  Significance: Not all government-held documents qualify. The content
and intended purpose must indicate that the document serves the public
or is made as part of public records.

(2) Chandaria v R [1963] EA 285

In this case, the court considered whether immigration forms filled out at the
airport could be considered public documents. The court held they were not
admissible under the public document exception because the statements in them
were made by private individuals, not by public officials.

 Significance: The statement in a document must be made by a public

officer, not merely housed by a public agency. Simply being in the
possession of a government office does not make a document public for
.
evidentiary purposes
Examples of Public Documents Admissible under the
Exception
 Birth, death, and marriage certificates,
 Electoral registers and land records,
 Official maps, surveys, and government gazettes,
 Legislative records and Hansard reports,
 Court records and judicial decisions,
 Police occurrence books (where entries are made by officers in the
course of duty).

Contrast with Non-Public Records

It is important to contrast public documents with other documents that,
although in government possession, are not inherently public:
 Complaint letters filed by private individuals,
 Interview or interrogation notes made by police (unless
properly authenticated),
  Customs forms filled by importers (see Patel v Comptroller of Customs).
Such documents may be excluded as hearsay unless a proper foundation is laid, or
another exception applies.

Underlying Rationale
The rationale for the public document exception is administrative efficiency and
institutional reliability. Public officials are presumed to be neutral and diligent
in performing their duties. Documents produced in this context are less likely to
be influenced by personal motives and thus presumed to be trustworthy.
Additionally, requiring the testimony of every officer who ever made an official
entry would paralyze legal proceedings, particularly in land, civil registry, or
criminal matters involving numerous routine entries.

Limitations and Safeguards

 The exception does not allow wholesale admission of all government-
held records—only those meeting the criteria above.
 The court may still require foundational proof, such as evidence of
official custody or a certification that the document is a true copy.
 Where accuracy is disputed, the opposing party may call evidence to
rebut or explain the contents of the document.

Hearsay Admissible at Common Law – Works of Reference

Another notable exception to the hearsay rule at common law, which is also
recognized under Kenyan law, concerns published works of reference. This
exception applies to authoritative texts or materials that are accepted as
reliable sources of general knowledge or expertise, and which are used to
establish facts that are not in serious dispute, especially technical, scientific,
historical, or geographic facts.
Statutory Basis – Section 41 of the Evidence Act (Cap. 80,
Laws of Kenya)
Section 41 states:
“When the court has to form an opinion upon a point of foreign law, or of
science or art, or as to identity of handwriting or finger impressions, and such
opinion is derived from a treatise or published work, such work may be used as
evidence, provided it is written or compiled by an expert or a person with
sufficient
authority.”

This provision effectively codifies the common law exception for works of
reference and expert treatises, allowing courts to admit them as evidence
without requiring the author to be called as a witness.

Requirements for Admissibility

To fall within the hearsay exception for works of reference, a document or
publication must:
1. Be published and accessible, not a private manuscript or
unpublished report.
2. Be authored by a recognized expert or a person of established authority
in the field.
3. Concern a subject of general interest—such as science, medicine, law,
or geography.
4. Be relied upon to prove a fact of general knowledge, not a contested
fact peculiar to the specific case.

Examples of Admissible Works

 Dictionaries (e.g., Oxford English Dictionary),
 Encyclopedias (e.g., Encyclopedia Britannica),
 Medical treatises (e.g., Gray’s Anatomy, Harrison’s Principles of
Internal Medicine),
  Legal textbooks and commentaries (e.g., Halsbury’s Laws of England),
 Atlases and official maps,
 Scientific research publications, peer-reviewed journals.
These sources are used to aid the court’s understanding of non-legal or technical
subjects and are considered trustworthy because they are produced under
academic or professional standards and subject to public scrutiny.

Practical Use in Court

In practice, a party may cite or introduce a work of reference during proceedings
to:
 Support the testimony of an expert witness (as corroborative authority),
 Refresh the memory of an expert witness under Section 167(4) of
the Evidence Act,
 Assist the court in forming its own opinion on technical or
specialized subjects under Section 48 (opinion evidence).
For example, in a medical negligence case, a party may cite a recognized medical
treatise to establish what is considered standard practice in the profession.
Similarly, in a defamation case, a dictionary definition may be used to show the
ordinary meaning of a disputed word.

Limitations and Court Discretion

The exception is not without limits. The court retains discretion to:

 Reject obscure or disputed sources,

 Require a witness to verify the reliability of the work if it is not
widely accepted,
 Disallow irrelevant or misleading excerpts, especially if taken out
of context.
Additionally, if the publication is used to prove a fact in issue, and that fact is
seriously contested, the court may require the author to testify, or
otherwise decline to accept the source without further corroboration.

Case Illustration
Although Kenyan courts have not extensively litigated this specific exception, the
general principle has been recognized in many jurisdictions. For instance, in R v
Abdi [2002] EWCA Crim 292, the English Court of Appeal reaffirmed that
authoritative medical and scientific texts could be used by expert witnesses in
court and may even be referenced directly by judges in forming their
conclusions.
Similarly, in Sharmpel Singh v R [1960] EA 762, the court allowed an expert to
refresh his memory using a professional treatise under Section 167(4),
reinforcing the idea that recognized publications have evidentiary value even
without the presence of the author.

Comparison with Other Exceptions

Unlike statements in public documents, which are usually records created by public
officers, works of reference originate in the academic, professional, or publishing
world. The common link, however, is the presumption of accuracy and
impartiality, which justifies their exemption from the hearsay rule.

Hearsay Admissible at Common Law – Statements of Persons Since Deceased

One of the most significant and complex exceptions to the hearsay rule, both at
common law and under statute, concerns statements made by persons who are
now deceased. This exception is based on necessity—where the declarant cannot
testify because they have died—and on reliability, particularly when the
statement was made in circumstances that suggest trustworthiness.
In Kenyan law, this exception is comprehensively covered in Section 33 of the
Evidence Act (Cap. 80, Laws of Kenya).
Statutory Provision: Section 33 of the Evidence Act
Section 33 provides that certain statements are admissible when the person
who made them is dead, cannot be found, is incapable of giving evidence, or
cannot attend without unreasonable delay or expense. However, not all such
statements are automatically admissible—they must fall under specific
categories listed in the section.
These include statements relating to:
1. Cause of death (dying declarations),
2. Made in the ordinary course of business,
3. Against the declarant’s interest,
4. Made in performance of a duty,
5. Relating to pedigree or family relationships,

6. Relating to the existence of a relationship,

7. Relating to public or general rights,
8. Relating to the creation or existence of a custom.
This exception balances the exclusionary rule with the practical needs of justice,
especially where a person’s death prevents direct testimony.

Key Requirements for Admissibility

For a deceased person’s statement to be admissible:
 The declarant must be unavailable due to death or other reasons listed
in Section 33.

 The statement must fall within one of the eight specified

categories.
  The statement must be made in circumstances that indicate reliability,
such as spontaneously, under duty, or when the declarant had no motive
to lie.

Illustrative Case Law

1. Marie Ayoub v Standard Bank (1961) EA 743
In this case, the deceased had made a statement during his lifetime that was
tendered to support a claim in court. The court held it inadmissible because it did
not fall under any of the statutory exceptions, and the declarant was not shown
to be unavailable at the time the statement was made. The court emphasized
the importance of fitting the statement within Section 33.

2. Dias v R (1927) 3 ULR 214

A clerk, who had made a record concerning payments before his death, was not
shown to have had any personal interest in the statement, nor was the
statement against his interest. The court rejected the document as inadmissible
hearsay, because it did not qualify as a declaration against interest.

3. R v Woodcock (1789) 1 Leach 500

A foundational case for dying declarations, where a woman, mortally wounded
and in expectation of death, named her attacker. The court admitted her
statement despite the hearsay rule because it was made under a settled,
hopeless expectation of death—a principle now incorporated into Section 33(a).

Categories of Statements Covered Under Section 33

(a) Dying Declarations (Cause of Death) – Section 33(a)
Statements made by a person under the expectation of death, concerning the
cause or circumstances of death. Admissible only in homicide cases and
usually require corroboration due to potential bias or fear.
 Safeguard: The declarant must have genuinely believed death
was imminent and inevitable.
  Case Reference: R v Woodcock.

(b) Statements in the Course of Business – Section 33(b)

Records or memoranda made in the ordinary course of duty, before the
controversy arose. These include ledgers, invoices, and official reports.

(c) Declarations Against Interest – Section 33(c)

Statements made by the declarant that were contrary to their pecuniary,
proprietary, or penal interest at the time, and would expose them to liability.
 Requirement: The declarant must have had no motive to fabricate.
 Case Reference: Dias v R (statement held inadmissible because not
truly against interest).

(d) Statements Made in Discharge of Duty – Section 33(d)

Statements made by persons under legal or professional obligation, such as a
police officer’s record or an auditor’s statement.

(e) Statements Relating to Pedigree – Section 33(e)

Statements about family lineage, descent, legitimacy, or relationships, made by
someone with special knowledge, and before any dispute.
 Must concern blood, adoption, or marriage.

(f) Statements Relating to Relationships – Section 33(f)

Similar to (e), but may include statements not strictly related to pedigree, such as
affinity or family recognition.

(g) Statements Concerning Public Rights – Section 33(g)

Statements about public rights, such as use of a road or communal grazing land,
made by a person with relevant knowledge before the dispute arose.

(h) Statements on Customs – Section 33(h)

Statements by deceased persons regarding the existence or validity of a custom,
especially in traditional settings or land claims.
Policy Justification
The logic behind this exception is that certain statements carry inherent reliability,
especially when:
 Made spontaneously,
 Made under duty,

 Made under fear of death,

 Made with no motive to lie,
 Made in contexts where accuracy is presumed.
Moreover, when a person is deceased, the need for the evidence may outweigh
the usual concerns about cross-examination—provided that reliability can be
assured through the nature and context of the statement.

Limitations and Safeguards

 Courts often demand corroboration, especially for dying declarations.
 The statement must clearly fall within one of the eight specified categories.
 The declarant’s unavailability must be proven, and not merely assumed.
 The timing and circumstances of the statement are crucial in
assessing reliability.

Hearsay Admissible at Common Law – Declarations Against Interest

Declarations against interest are a well-established exception to the hearsay rule,

grounded in both common law and codified under Section 33(c) of the Evidence
Act (Cap. 80, Laws of Kenya). This exception allows for the admissibility of a
statement made by a person—now unavailable as a witness—which was so
adverse to the declarant’s own interest at the time it was made that it is
presumed to be truthful.
Statutory Basis – Section 33(c) of the Evidence Act
Section 33(c) provides that a statement is admissible when it is:
“Against the pecuniary or proprietary interest of the person making it, or would
expose him to criminal or civil liability, or would make invalid any claim by him
against another person.”
In other words, a declaration is admissible if it would have financially, legally, or
criminally disadvantaged the person making it at the time they made it.

Underlying Rationale
The exception rests on the assumption that people do not normally make
statements that are damaging to their own interest unless they are true.
Therefore, such statements are likely to be reliable, even if the declarant is not
available for cross-examination.
The rule is especially useful where a key witness has died, fled, or is otherwise
unavailable, and their self-incriminating or self-disadvantaging statement sheds
light on the issues before the court.

Essential Elements for Admissibility

For a declaration against interest to be admissible under this exception,
several conditions must be met:

1. Unavailability of the Declarant

The person who made the statement must be deceased, missing, too ill
to testify, or otherwise legally unavailable under Section 33.

2. Against Declarant’s Interest at the Time of Making

The statement must be:
o Against their pecuniary (financial) interest,
o Against their proprietary (property or ownership) interest,
o Expose them to civil or criminal liability, or
o Undermine their legal claim against another person.
 3. No Motive to Fabricate
The statement must have been made under circumstances suggesting
genuineness and absence of bias. Courts are cautious where there is
evidence that the declarant may have had a reason to mislead.

4. Personal Knowledge
The declarant must have had direct or personal knowledge of the facts
stated.

Illustrative Case Law

1. Dias v R (1927) 3 ULR 214
A deceased clerk made a statement that was tendered as a record of financial
transactions. The court held the statement inadmissible, ruling that it did not
qualify as a declaration against interest because it did not expose the clerk to any
personal liability or harm. The document merely recounted information related
to his employment.
 Principle: The declaration must genuinely be against the declarant’s
own legal or financial interest—not simply inconvenient or indirectly
relevant.

2. Marie Ayoub v Standard Bank (1961) EA 743

The plaintiff attempted to rely on a statement made by a deceased person. The
court found the statement inadmissible because it did not fit within any of the
Section 33 categories, including that of a declaration against interest.
 Lesson: The courts strictly interpret the categories under Section 33 and
will not allow hearsay unless the criteria are clearly met.

Examples of Admissible Declarations Against Interest

 A deceased person’s signed statement admitting to a debt owed to
the plaintiff.
 A statement acknowledging criminal liability or participation in an
illegal act.
  An admission that a property right claimed by the declarant was
actually owned by another person.
 A statement made by a person (now deceased) acknowledging that
they had forged a document or breached a legal duty.

Limitations and Safeguards

While this exception promotes fairness and prevents injustice where a key witness is
unavailable, it is subject to several judicial controls:
 Corroboration may be required, especially in criminal cases.
 The entire context of the statement must be examined—courts will
reject isolated or ambiguous admissions.
 If a statement appears self-serving or incomplete, it may be excluded even
if partially against interest.
 Courts remain skeptical of evidence that appears to have been made
to exculpate another person (e.g., “I did it, not him”) unless clearly
trustworthy.

Distinction from Other Exceptions

While similar to dying declarations, this exception applies beyond homicide cases,
and the statement need not concern the cause of death. It is also distinct from
business records or public documents, as the central qualifying factor is the self-
harming nature of the statement at the time it was made.

Hearsay Admissible at Common Law – Declarations in the Course of Duty

Declarations in the course of duty, also referred to as statements made in the
ordinary course of business, form one of the most practical and frequently used
exceptions to the hearsay rule. These statements are considered reliable because
they are made routinely, contemporaneously with the events recorded, and
typically without motive to mislead. They are recognized both at common law
and in Kenyan statute under Section 33(b) of the Evidence Act (Cap. 80).

Statutory Provision – Section 33(b) of the Evidence Act

Section 33(b) provides that a statement is admissible where:
“It was made in the ordinary course of a trade or business, or in the discharge of
professional duty, and contemporaneously with the matter to which it relates.”
This means that routine records or statements made by individuals in the course
of their professional, business, or official duties are admissible if the maker is
unavailable (due to death, disappearance, illness, etc.), and the statement
relates to matters within their duty.

Rationale for the Exception

This exception is grounded in both necessity and reliability. It would be
impractical to require every employee or official who made a routine entry (e.g.,
bank teller, nurse, police officer) to appear in court, especially years later. The
assumption is that such records are made:

 Concurrently with the event, reducing memory error,

 In the normal course of work, making fabrication unlikely,
 With no motive to misrepresent, especially where records are subject
to supervision or audit.

Key Elements of Admissibility

1. Statement must be made in the course of duty
The person must have had a duty to make the record or report (e.g., a
nurse writing a patient chart, an auditor preparing a report).

2. Statement must be contemporaneous

The entry must be made at the time of the act or event, or shortly
thereafter—not as a recollection long after the fact.
 3. Statement must relate to the duty
The content of the statement must concern matters the declarant was
expected to observe or report as part of their responsibilities.

4. The declarant must be unavailable

As required under Section 33, the person who made the statement must
be deceased, cannot be found, is incapable of testifying, or cannot attend
without unreasonable delay or expense.

Illustrative Case Law

1. Idi bin Ramadhan v R (1914) 2 ULR 108
In this early Ugandan case, the court admitted an entry made by a deceased
clerk in a ledger, as it was made in the ordinary course of business. The court
held it to be reliable and admissible under the business records exception.

2. R v Magandazi (1967) EA 84
This case involved a letter written by a police officer which was introduced as
evidence. The court held that the letter was not made in the course of duty, but
rather was written with the intent to influence ongoing proceedings. The
statement was therefore inadmissible hearsay.
 Principle: The statement must be routine and neutral—not composed
for litigation or strategic advantage.

Examples of Admissible Declarations in the Course of Duty

 Hospital records made by nurses and doctors during treatment,
 Police occurrence book entries recorded as part of standard procedure,
 Accounting or audit reports prepared in the course of regular
financial oversight,
 Inventory logs or shipping manifests recorded during business operations,
 School attendance registers, prepared contemporaneously by teachers.
These records are commonly used in civil and criminal trials where the maker is no
longer available.

Limits and Safeguards

 Statements made with litigation in mind are not admissible under
this exception (see Magandazi).
 The court may require foundational evidence to show that the
statement was part of an official duty.
 If the document or entry is unsigned, unverified, or lacks authenticity,
it may be excluded unless its reliability can be otherwise established.
 The court will assess the context and timing to ensure it meets the
standard of contemporaneity.

Comparison with Other Exceptions

This exception differs from a public document (Section 38) in that it focuses on the
routine nature of the duty, not necessarily on public accessibility or governmental
origin. It also differs from dying declarations or declarations against interest,
which hinge on personal motives or circumstances.
Hearsay admissible at common law- Declaration of pedigree

At common law, declarations as to pedigree form a notable exception to the

hearsay rule, permitting the admission of statements concerning family
relationships and lineage despite the declarant not being present for cross-
examination. This exception recognizes the practical difficulty of proving family
history through direct evidence, especially where relevant persons are
deceased or events occurred long ago.
Nature and Scope of the Exception
Pedigree, in legal terms, refers to family lineage and includes relationships by blood
or marriage, legitimacy or illegitimacy, age, birth, death, and marriage. At
common law, a statement relating to such matters is admissible if the declarant
is deceased and had special means of knowledge, typically due to being a
member
of the family or someone closely connected with it. The statement must also
have been made before any litigation or dispute arose, ensuring its neutrality.
Statements as to pedigree may be oral or written and can include inscriptions
on tombstones, entries in family Bibles, or letters. The rationale behind their
admissibility lies in necessity and reliability—family members are presumed to
speak truthfully about family matters, and such statements often represent the
only available evidence on these points.

Legal Requirements
For a declaration as to pedigree to be admissible under common law, several
conditions must be met:

1. The declarant must be dead.

2. The statement must concern family matters such as birth, death,
marriage, or legitimacy.
3. The declarant must have had special knowledge, typically by being
related by blood or marriage.

4. The statement must have been made prior to the legal

dispute.
These principles are codified and extended in many common law jurisdictions
through statutory provisions. In Kenya, for example, the Evidence Act (Cap. 80)
mirrors common law principles in Section 33, which provides for the admissibility
of statements made by persons who cannot be called as witnesses due to death
or incapacity. Specifically, Section 33(a) allows such statements to be admitted
where they relate to family relationships.

Section 33(a) of the Kenyan Evidence Act:

"Statements, written or oral, of relevant facts made by a person who is dead ...
are themselves relevant facts ... when the statement is made by a person in the
ordinary course of family life relating to the existence of any relationship by
blood, marriage or adoption between persons."

Leading Case Law

One of the leading English cases on pedigree declarations is:

 Sugden v. Lord St. Leonards [1876] 1 P.D. 154

In this case, a missing will was the subject of dispute. The testator’s
daughter gave evidence about its contents, relying on statements made by
her father. The court upheld the admissibility of such statements,
establishing that declarations made by family members with intimate
knowledge of family affairs are admissible when the declarant is deceased.

 Re D’Epinois (1853) 1 De G M & G 425

The case concerned a declaration by a deceased relative as to the
legitimacy of a child. It was held admissible as the declarant was closely
related and the statement was made before any legal controversy.

 Wright v. Doe d. Tatham (1837) 7 Ad. & E. 313

Although not directly about pedigree, this foundational case on hearsay is
important in clarifying the limits and reasoning of hearsay exceptions,
including those relating to family matters.

Practical Application
In practice, declarations as to pedigree are often vital in probate, succession, and
family law cases. For example, in succession disputes, a child seeking inheritance
may rely on a statement from a deceased relative confirming their relationship to
the deceased. Similarly, in marriage disputes, oral traditions or statements
regarding a customary marriage may be admitted.
In Kenyan courts, this principle has been invoked in cases involving inheritance
claims and customary marriage where documentary evidence is lacking and
the only evidence available is oral history or statements made by deceased
elders.
Hearsay admissible in common law- Declaration as to Public and
General Rights
At common law, declarations as to public and general rights represent another
key exception to the rule against hearsay. These declarations are admissible in
evidence despite being made out of court and despite the unavailability of the
declarant for cross-examination. The rationale behind this exception lies in
necessity and presumed reliability, especially in contexts where rights have been
historically exercised by a community or group, and where direct evidence is
often unavailable due to the age of the facts in question.

Nature and Scope of the Exception

This exception applies to statements made by deceased persons regarding the
existence or exercise of a public or general right, such as:
 A right of way used by the public
 Rights to commons or grazing land
 Rights to fisheries, water usage, or religious practices accessible to
a community
The statements must relate to a public or general right, not a private right. A
public right is one enjoyed by all members of the public, while a general right
may be limited to a certain class of people (e.g., the residents of a village).

Legal Requirements
For a declaration as to public or general rights to be admissible under the hearsay
exception, certain conditions must be met:

1. The declarant must be deceased.

2. The declaration must have been made before any controversy or
dispute arose—this ensures impartiality.
3. The right must be public or general—not specific to an individual or a
small number of people.
4. The declarant must not have had a personal interest in the right
— neutrality ensures reliability.
5. The declaration must be accompanied by acts of usage or conduct
consistent with the claimed right (e.g., repeated public use of a
path supports a claimed right of way).
 Legal Authority and Statutory Basis
In Kenya, the common law exception is supported by Section 33(c) of the
Evidence Act (Cap. 80), which provides:

Section 33(c):
"Statements made by persons who are dead ... are admissible when they relate to
the existence of any public right, or custom, or matter of public or general
interest, of which the person making the statement had special means of
knowledge, and were made before any controversy arose."
This provision mirrors the English common law rule and is designed to allow
reliable historical statements to prove enduring rights or customs.

Leading Case Law

Several English and East African cases illustrate the application and limits of this
hearsay exception:

 R v. Wilson (1855) 10 E.R. 1034

The court allowed evidence of past statements by villagers to prove a public
right of way. The statements were supported by actual use of the path, and
the declarants were found to have no personal interest in the outcome.

 Attorney General v. Jones (1799) 2 Bos & Pul 620

This case established the principle that public rights can be proven through
community recollections and statements from persons with special
knowledge, especially when supported by evidence of usage.

 Patel v. Comptroller of Customs [1966] A.C. 356

Although not directly about public rights, this Privy Council case reaffirmed
the general principle that hearsay may be admitted if it relates to a
matter of general or public interest and meets the traditional criteria.

 Kinyatti v. Republic [1985] KLR 562

A Kenyan case where historical and customary practices were accepted as
part of the evidence, reinforcing the role of such declarations in contexts
involving long-standing community rights and customs.
Practical Application
Declarations as to public and general rights are especially relevant in land
disputes, customary land use claims, access to communal resources, and
boundary cases. For example, where a community asserts a right to access a river
or a shrine based on long-standing usage, statements made by deceased elders
affirming that practice are admissible. Similarly, in land registration cases, these
declarations may support a claim that a certain track of land was always used as
a public footpath or market area.
Documentary Evidence
Meaning of “Document “
The term “document” holds a central place in the law of evidence, as it forms the
foundation for the admissibility and evaluation of recorded information in both
civil and criminal proceedings. Under Section 3 of the Evidence Act (Cap. 80,
Laws of Kenya), a document is defined expansively to include “any matter
expressed or described upon any substance by means of letters, figures or marks,
or by more than one of those means, intended to be used, or which may be used,
for the purpose of recording that matter.” This definition is deliberately broad to
accommodate the diverse formats through which information can be recorded
and preserved.
The statutory meaning is not confined to written materials alone. It extends to
include printed, typed, photographic, and electronic materials. As such,
traditional forms such as contracts, wills, and letters fall within the definition, but
so do modern forms like emails, text messages, social media posts, audio
recordings (when transcribed or stored), computer printouts, and even items like
maps, plans, or photographs. The critical element is not the medium itself, but
rather the intention that the matter recorded is meant to serve as a record or a
means of conveying information.
Kenyan courts have echoed this understanding in various rulings. For instance, in
the case of Abbey v Crux (1869) 8 L.R. 37, the court considered the expansive
scope of what constitutes a document, emphasizing that the essence lies in the
recording of information, not its format. Similarly, in R v Daye [1908] 2 KB 333,
the court held that a cinema film was admissible as a document because it was
capable of conveying factual information visually. These cases illustrate the legal
system’s pragmatic approach to defining documents, ensuring that evidentiary
rules keep pace with technological and social change.
A particularly significant case in the Kenyan context is William Kabogo Gitau v
George Thuo & Others, Election Petition No. 10 of 2008, where the High Court
accepted electronic voting data and digital printouts as documents. This affirmed
the judiciary’s willingness to treat electronic records with the same evidentiary
value as physical ones, provided that the authenticity and integrity of the data
could be established. This case is also indicative of how modern litigation
increasingly relies on digital evidence, which in turn necessitates a flexible and
inclusive definition of what constitutes a document.
Moreover, the law distinguishes between public and private documents under
Section 79 of the Evidence Act. Public documents include records of acts of
sovereign authorities, public officers, or public bodies, while all other documents
are classified as private. This distinction influences not only the mode of proof
but also the presumptions attached to such documents—for example, certain
certified copies of public documents are presumed genuine and are admissible
without further proof.
The significance of the definition of a document is profound in the law of
evidence. It serves as the gateway to more complex evidentiary questions such as
the requirements of primary and secondary evidence, the rules on admissibility,
and the presumptions applicable to different types of records. It also underlines
the courts’ recognition that as technology evolves, so too must the tools of
justice. The Kenyan legal framework, therefore, ensures that the definition of a
document is sufficiently elastic to embrace both conventional and contemporary
means of recording and transmitting information.

Proof of the contents of a document

In the law of evidence, the principle that documents must be proved by their
contents lies at the heart of documentary evidence. When a party seeks to rely
on a document to establish a fact, it is not sufficient merely to allege the
existence of that document; the contents must be brought before the court in a
legally recognized manner. This requirement is governed by a combination of
statutory provisions and judicial principles that aim to ensure authenticity and
reliability.

The starting point is Section 61 of the Evidence Act (Cap. 80, Laws of Kenya),
which provides that the contents of documents may be proved either by
primary
or secondary evidence. This provision forms the basis of the “best evidence
rule”, which holds that the original document—the primary evidence—is the
most
reliable form of proof. The policy rationale here is straightforward: original
documents are less prone to errors, alterations, or misinterpretations than
copies or oral accounts.
Primary evidence is defined in Section 62 of the Act as the document itself
produced for the inspection of the court. Where a document is in multiple parts
or copies made by the same process (such as carbon copies), each is considered
primary evidence. When a party wishes to prove the contents of a written
contract, will, letter, or other document, the ideal method is to produce the
original. If the document is public or official in nature, then certified copies may
be admitted under specific statutory provisions.
Judicial practice affirms this principle. In Chua Bee Chun v Chua Ah Kow, the
court emphasized that in the absence of exceptional circumstances, documentary
evidence must be produced in its original form. The case of Chow Siew Hon v
Public Prosecutor also reinforced that courts require strict compliance with
primary evidence requirements unless an exception under the law is clearly
established.
However, there are situations in which the original document cannot be produced.
In such cases, the law permits secondary evidence, as governed by Sections 63
and 65 of the Evidence Act. Secondary evidence includes certified copies,
mechanically reproduced duplicates, oral accounts of the contents by someone
who has seen the document, or other forms as specified by the statute. Section
65 outlines specific scenarios where secondary evidence is admissible,
including:
 When the original is lost or destroyed.
 When the original is in possession of the opposite party and that
party, after notice, fails to produce it.
 When the original consists of numerous documents that
cannot conveniently be examined in court.
 When the document is not easily movable.
  When the document is of such a nature as to be legally admissible
in secondary form (e.g., certified copies of public records).
The leading Kenyan case of William Kabogo Gitau v George Thuo & Others
illustrates the application of this principle. The court admitted digital printouts
as secondary evidence after it was demonstrated that the original data had
been retained securely and was inaccessible for practical purposes. This case
reflects the courts' flexible approach to the evolving nature of documents,
particularly in the digital age.
In Tan Chong & Sons Motor Co v Alan Motors Ltd, the court accepted secondary
evidence of an invoice after the party demonstrated that the original was lost
despite diligent search. Similarly, in Sivalingam v Periasamy, oral evidence of
the contents of a lost document was admitted because the witness had
firsthand knowledge of the contents and the original could not be found.
Notably, before secondary evidence is admissible, the court must be satisfied that
the conditions set out in the Evidence Act have been met. The burden of proof
lies on the party seeking to rely on secondary evidence to demonstrate that one
of the exceptions applies. It is not enough to allege loss or unavailability; concrete
evidence of efforts to produce the original must be provided.
In practice, where a party wishes to rely on a copy, they must also show that notice
to produce the original was served on the other party in accordance with
Section 66 of the Evidence Act. This requirement ensures fairness and gives the
opposing party a chance to challenge or produce the original document before
secondary forms are introduced.

Proof of Due Execution of a Document

In legal proceedings, particularly those involving contractual or proprietary rights, the
proof of due execution of a document is critical to its admissibility and evidential
weight. Execution refers to the act of signing a document to give it legal effect. When
a party seeks to rely on a document, the court must be satisfied that the document
was executed in accordance with the law and by the person or persons purported to
have signed it.
In Kenya, the statutory basis for this requirement is primarily found in the Evidence
Act, Cap. 80, particularly in Sections 100 and 67–70. Section 100 provides that
where the law requires a document to be attested (that is, witnessed), it must be
proved by at least one attesting witness unless such a witness is dead or cannot be
found. This is especially pertinent in the case of documents like wills, powers of
attorney, and transfers of land, which require attestation under Kenyan law, such as
the Law of Succession Act and the Land Registration Act.
Where attestation is not legally required, a document may be proved in court
through the testimony of a person who saw it executed or through circumstantial
evidence indicating that the signature was genuinely affixed by the person purported
to have signed it. Section 67 of the Evidence Act stipulates that documents must be
proved
by primary evidence except in situations where secondary evidence is
permissible under Section 68. Primary evidence refers to the original document
itself, while
secondary evidence includes certified copies or oral accounts of the contents of the
document, which may only be admitted in specific situations such as loss or
destruction of the original.
One of the landmark English decisions often cited in Kenyan jurisprudence is Bank of
Australasia v Palmer [1897] AC 540, where the court held that the burden of proving
the execution of a document lies on the party seeking to rely on it. The document
must appear to be properly signed and witnessed if necessary. This case also touched
on the presumption that arises when documents appear regular on their face and
are
produced from proper custody—a concept codified in Kenya under Section 90 of the
Evidence Act, which creates a presumption of due execution for documents that are
William Kabogo Gitau v George Thuo
over thirty years old and come from proper
custody.
A Kenyan case that applied these principles is
& 2 Others (Election Petition No. 10 of 2008), where the court scrutinized the
authenticity and formal execution of electoral documents. The court emphasized that
for a document to be relied upon, it must not only be genuine but must also have
been executed in accordance with the legal requirements, including proper
Section 70 of the Evidence Act permits proof of handwriting or
witnessing where applicable.
Furthermore,
have signed the document.
signatures by anyone acquainted with the handwriting of the person purported to
 This is relevant in circumstances where the person who
allegedly signed the document is unavailable or denies the signature.
The necessity of proving due execution is heightened where the document is
contested, especially in cases of alleged forgery, duress, or undue influence. In such
cases, mere production of the document is not enough—the court requires positive
evidence demonstrating that the document was voluntarily and knowingly executed.
This may include calling the attesting witness, handwriting experts, or individuals
who were present at the time of execution.
The general principle, therefore, is that the due execution of a document must be
affirmatively proved unless a statutory presumption applies. This is consistent with
the foundational rule in evidence law that he who alleges must prove, as captured in
Section 107 of the Evidence Act. The importance of this requirement lies not only in
validating the document but also in protecting parties from fraud,
misrepresentation, and undue influence, which are risks particularly prevalent in
high-stakes civil litigation such as disputes over land, succession, or contractual
obligations.

Proof of Due Attestation

The attestation of a document involves the witnessing of its execution by a third
party who confirms that the person purported to have signed the document did so in
their presence. The requirement to prove due attestation arises particularly in cases
where the law mandates that a document be attested in order to be legally effective.
In the Kenyan legal context, this typically applies to documents such as wills,
transfers of land, mortgages, and powers of attorney.
Under the Evidence Act, Cap. 80, Section 100 stipulates that documents required by
law to be attested must be proved by calling at least one attesting witness. This
statutory requirement is grounded in the principle that attestation provides added
evidentiary reliability, helping the court determine that the document was not
forged, executed under duress, or signed by an unauthorized person. The purpose of
attestation is therefore both procedural and substantive—it confirms not just that
the document was signed, but that it was done so willingly and in accordance with
the law.
To discharge the burden of proving due attestation, the party relying on the
document must typically call one of the attesting witnesses to testify that the
document was signed by the purported signatory in their presence. This aligns with
the rule found in Section 100(1) of the Evidence Act. Where the attesting witness is
unavailable—due to death, being untraceable, or other sufficient cause—Section 69
allows for alternative methods of proof. These include producing secondary
evidence such as handwriting analysis, circumstantial evidence of the execution, or
an admission by the signatory.
In Angell v Duke (1875) 32 LT 320, the court emphasized the strict necessity of
proving attestation where the law mandates it. The case involved a deed that
required attestation, and the party failed to call an attesting witness or otherwise
prove the document’s execution. The document was held inadmissible as a result.
This case continues to serve as authority in Kenyan courts for the importance of strict
compliance with formal attestation requirements.
Kenyan case law follows this principle. In Costa v Owen [1965] 1 WLR 107, the court
highlighted that if a document purports to have been attested, and the law requires
attestation, the burden lies on the party relying on the document to prove that the
attestation actually took place. Failure to do so renders the document invalid as
evidence. Similarly, in Re Rees, Williams v Hopkins [1950] Ch 204, the court
addressed a will that was attested, but where the attesting witnesses could not be
found. The court accepted circumstantial evidence of the testator's signature and
surrounding circumstances to conclude that the document had likely been properly
attested.
In Kenyan practice, this issue most commonly arises in succession cases involving
wills. The Law of Succession Act (Cap. 160) requires that a will be attested by at
least two competent witnesses who were present when the testator signed the
document. If a party seeks to prove such a will in court, at least one attesting witness
must be called to prove that attestation occurred. This is reinforced by Section 11 of
the Law of Succession Act and Section 100 of the Evidence Act. Only in
circumstances where attesting witnesses cannot be found does the court permit
proof by other means, such as affidavits, circumstantial evidence, or handwriting
experts.
It is also worth noting that a document does not become attested merely because
someone signs it as a witness. The law requires that the witness was actually present
during execution and that they intended to attest the document as such. As seen in
Charter v Charter (1871) 2 LR 315, attestation must be deliberate and
contemporaneous with execution. The witness must have seen the party sign and
must have appended their signature with the intention of attesting to the act of
execution—not merely for identification or some other collateral purpose.
Where attestation is not legally required but the document has been witnessed, the
question of whether attesting witnesses must be called depends on the evidentiary
context. Courts have discretion in such matters and may accept proof by other
means if there is no legal requirement for attestation. However, if attestation
appears on the face of the document and is relied upon to support authenticity, the
court may still require proof from a witness to confirm the document’s execution,
especially if it is disputed.
The presumptions under Section 90 of the Evidence Act can also sometimes aid the
proof of attestation. If a document is over thirty years old and produced from proper
custody, the court may presume that it was duly executed and attested. However, this
presumption is rebuttable and applies only in the absence of contrary evidence.

Presumptions Relating to Execution and Attestation of

Documents
In the law of evidence, presumptions serve to relieve a party of the burden of
producing direct proof in certain circumstances by allowing the court to infer a fact
based on the existence of another proven fact. In the context of documentary
evidence, several statutory presumptions are recognized under the Kenyan Evidence
Act (Cap. 80) to facilitate proof of execution and attestation, especially where direct
evidence is unavailable or impractical to obtain. These presumptions are particularly
useful in proving the authenticity and legitimacy of documents that are either very
old or appear regular on their face and come from proper custody.
1. Presumption as to Powers of Attorney – Section 85
Under Section 85 of the Evidence Act, there is a presumption that a document
purporting to be a power of attorney, and which has been executed before, and
authenticated by, a notary public or other legally authorized officer, was duly
executed and authenticated. This presumption is vital because powers of attorney are
often executed in different jurisdictions or before various authorities.
This statutory provision facilitates commerce and cross-border transactions by
avoiding the need to call the notary or other officer as a witness to prove execution.
The presumption is rebuttable, meaning the other party can present evidence to
disprove the due execution if they suspect forgery, fraud, or procedural irregularity.
2. Presumption as to Certified Copies – Section 86
Section 86 provides that certified copies of public documents, when duly certified by
the officer responsible for the custody of the original, are presumed to be genuine.
These documents include birth certificates, title deeds, court judgments, and
government records.
This presumption helps to ease the evidentiary burden on parties who need to rely
on official records and ensures that litigation does not get bogged down by
unnecessary formalism. For instance, a litigant presenting a certified copy of a
land title from the Land Registry does not need to summon the land registrar
unless the authenticity of the copy is challenged.
3. Presumption as to Thirty-Year-Old Documents – Section 90
Perhaps the most significant presumption regarding execution and attestation is
found in Section 90 of the Evidence Act. This section states that a document which is
at least thirty years old and is produced from proper custody is presumed to
have duly executed and attested by the persons purported to have signed it.
been
This is often referred to as the ancient documents rule. The rationale behind this
presumption is rooted in practicality and the unreliability of human memory
and record-keeping over long periods. Where a document such as a will, deed,
or agreement is over three decades old and is found in a location where such
documents are normally kept (e.g., among family papers, in a registry, or official
custody), the court may accept it as authentic without requiring direct
testimony from attesting witnesses, who may be deceased or untraceable.
In Bank of Australasia v Palmer [1897] AC 540, the House of Lords recognized and
applied the ancient documents rule, affirming that when a document is ancient and
regular on its face, and comes from proper custody, the court will presume its due
execution. This principle has been adopted in Kenyan jurisprudence.
A similar principle is reflected in Sugden v Lord St. Leonards [1876] P 154, where
the court presumed that a will, although partially lost, had been duly executed given
the circumstances of its discovery and its long-standing acceptance by the parties.
However, the presumption under Section 90 is rebuttable, meaning that if evidence is
adduced to show forgery, fraud, or improper execution, the presumption can be
displaced. Moreover, the document must come from “proper custody,” a term which
refers to a place where such a document would naturally be kept. If, for example, a
will is found in the deceased’s safe or a land title in the Land Registry, that would be
proper custody.
4. Presumption of Regularity in Official Documents – Section 86A & Others
Though not explicitly under Section 90, related presumptions exist in the Evidence
Act regarding the official acts of public officers. For example, Section 86A provides
that a certificate issued under the hand of a government officer is presumed to be
valid and genuine. This is rooted in the presumption of regularity—a doctrine
whereby official acts are presumed to have been properly performed unless proven
otherwise.
5. Case Application and Judicial Attitudes
Kenyan courts have embraced these presumptions with caution, ensuring that they
do not displace the requirement for probative value or override evidence of forgery
or manipulation. In the William Kabogo Gitau v George Thuo & 2 Others case, the
court considered presumptions but required strict proof where the integrity of
election documents was questioned. This illustrates that while presumptions
ease evidentiary burdens, they do not eliminate the need for scrutiny in
contentious matters.

Extrinsic Evidence in Relation to Documents

The interpretation and application of documentary evidence in legal proceedings is
guided by a fundamental rule known as the parol evidence rule, which restricts the
use of extrinsic evidence—that is, oral or external evidence—to contradict, vary, add
to, or subtract from the terms of a written agreement. However, the Kenyan
Evidence Act (Cap. 80) provides for certain exceptions where extrinsic evidence may
be admissible to assist the court in interpreting documents or resolving ambiguities.
The Parol Evidence Rule – Section 97 of the Evidence Act
Section 97(1) of the Evidence Act sets out the basic rule that when the terms of a
contract, grant, or disposition of property have been reduced to writing, no evidence
shall be given in proof of those terms except the document itself or secondary
evidence permitted under the Act. This reinforces the legal presumption that a
written document is the most reliable record of a transaction and that parties who
reduce their agreement to writing intend it to represent the entirety of their
agreement.
In effect, extrinsic oral evidence is generally inadmissible to contradict or vary
the terms of a valid written instrument.
Exceptions to the Rule – Section 98 of the Evidence Act
Section 98 of the Act allows for certain exceptions to the parol evidence rule. These
exceptions provide that extrinsic evidence may be admissible to:
1. Prove the invalidity of a document – such as where there is evidence of
fraud, mistake, duress, illegality, or misrepresentation. For instance, if a party
claims that their consent to a contract was vitiated by undue influence, oral
evidence may be admitted to support that claim even though the written
document appears regular.
2. Explain ambiguous terms – Where a document contains words or clauses
that are unclear or open to multiple interpretations, the court may admit
extrinsic evidence to clarify the meaning. For example, if a lease agreement
refers to "the yard" but the property has two yards, extrinsic evidence may
be introduced to identify which one is meant.
3. Prove usage or custom – In commercial documents, parties may rely on
trade usage or customary practices to supplement or explain the document.
This is particularly relevant in contracts involving mercantile law or
customary land dealings.
4. Show failure or absence of consideration – Although a document may
appear complete, parties may be allowed to adduce oral evidence to show
that the consideration (i.e., the price or benefit) was never paid or was
illusory.
5. Prove a separate oral agreement on a distinct matter – If a collateral
agreement exists that does not contradict the main document and deals with a
separate matter, extrinsic evidence may be admitted to prove it.
These exceptions ensure that the rigidity of the parol evidence rule does not lead to
injustice, especially where written documents fail to capture the full scope of the
parties’ intentions or where irregularities exist in their creation.
Judicial Interpretation and Case Law
Kenyan and English courts have addressed the limits of admissibility of extrinsic
evidence through various rulings.
In Henderson v Arthur [1907] 1 KB 10, the English court held that extrinsic oral
evidence could not be admitted to vary the terms of a written lease agreement. The
tenant tried to show that rent was payable at a different rate than what was written,
but the court rejected this argument, reaffirming the primacy of the written
document.
In Re Rees, Williams v Hopkins [1950] Ch 204, the court admitted extrinsic evidence
to resolve ambiguities in a will. The deceased had used general terms in describing a
bequest, and the court allowed testimony about the testator’s intentions and
surrounding circumstances to clarify who the beneficiaries were. This case
exemplifies the exception to explain latent ambiguity.
Similarly, in Kenyan succession and land disputes, courts often permit oral evidence
to explain terms or support claims that do not directly contradict a written
document. For example, in customary land cases, courts have accepted oral
testimony to establish family arrangements or traditional boundaries even when
there is a written title deed, as long as the evidence does not contradict its express
terms.
Interplay with Customary and Statutory Law
The admissibility of extrinsic evidence is also influenced by the nature of the
document and the applicable legal regime. In transactions governed by customary
law, oral agreements may coexist with written documents. For instance, in land
succession disputes under customary law, courts may rely on extrinsic evidence to
determine the true intentions of the deceased or the rights of family members, even
where a written will or grant of letters of administration exists.
Moreover, Section 5 of the Evidence Act provides that customary practices may be
relevant where they are not inconsistent with written law. Thus, courts have
occasionally admitted extrinsic evidence to explain or contextualize the application
of customary rules, especially in relation to property, marriage, or inheritance.
Use in Proving Fraud or Illegality
Where a party alleges that a document was obtained through fraudulent means or
was created for an illegal purpose, extrinsic evidence becomes essential. Fraud
cannot be established without stepping outside the four corners of the document. In
such cases, the courts recognize that justice demands the admission of oral or
documentary evidence to uncover the true nature of the transaction.
For example, in a forged will or title deed case, handwriting experts, witnesses to
prior versions, and evidence of conduct are all extrinsic evidence necessary to
test the authenticity of the disputed document.
Limits of Admissibility
While the exceptions to the parol evidence rule are important, courts maintain a
strict boundary to prevent misuse. Extrinsic evidence that directly contradicts clear
and unambiguous terms of a written contract is usually inadmissible, unless it falls
under a well-recognized exception such as fraud or mistake.
Furthermore, where a document is complete on its face and expresses the full
agreement of the parties, courts are reluctant to reopen its terms based on vague
or self-serving oral statements, especially if the parties had legal advice or equal
bargaining power.
Character Evidence
General Inadmissibility of Character Evidence in Kenyan Law
Character evidence refers to information presented in court about a person’s
personality, moral standing, or past behaviour to show their propensity to act in a
certain way. In the context of legal proceedings in Kenya, the general rule is that
character evidence is inadmissible, particularly when its only purpose is to suggest
that someone acted in a certain way on a particular occasion because of their
character. This principle is grounded in the idea that trials should focus strictly on the
facts of the case and not devolve into moral evaluations of the parties involved.
Under Section 55 of the Evidence Act (Cap. 80 of the Laws of Kenya), it is expressly
provided that in civil proceedings, character evidence is not admissible to prove
conduct unless the character of the person is directly in issue. This provision
encapsulates the general principle that in civil matters, a person's character cannot
be used to infer that they acted in conformity with that character in relation to the
specific event in question. The rationale for this exclusion is to prevent prejudice,
distraction from the central issues, and the potential for trials to turn into referenda
on a party's moral or social worth.
The Act further elaborates on the meaning of character in Section 58, defining it
as encompassing both disposition and general reputation. Disposition refers to the
inherent tendencies of a person—qualities shaped by upbringing, education, or
socio-economic circumstances—while reputation refers to how the person is
perceived by the community at large. Despite this distinction, the two are often used
interchangeably in case law, leading to some confusion.
One of the landmark cases that highlight this tension is R v. Rowton (1865) LJMC
57.
In this case, the accused was charged with indecent assault and introduced
evidence
of his good character. The prosecution sought to rebut this by introducing a witness
who testified based not on general community opinion but on his personal view
and
that of his brothers, asserting that the accused was capable of extreme immorality.
The court held this evidence inadmissible, reasoning that character evidence should
reflect general reputation within the community and not individual opinions.
However, dissenting judges argued that intimate personal knowledge could be
more
reliable than general societal perceptions. This case illustrates the courts’ traditional
insistence on community-based assessments of character, and their reluctance to
admit subjective personal assessments.
Another key concern underlying the exclusionary rule is the potential for prejudice. If
parties were allowed to freely introduce character evidence, courts could become
overwhelmed with collateral issues regarding past behaviour or general morality,
diverting attention from the specific legal issues in question. It could also unfairly
bias judges or juries against a party, particularly where the individual is perceived as
having a disreputable character, irrespective of the facts of the case at hand.
However, this general rule is not absolute. There are exceptions both in civil and
criminal proceedings, which are governed by separate rules. In civil cases, exceptions
include instances where character is directly in issue (such as in defamation), where it
may affect the amount of damages awarded, or where it relates to the credibility of a
witness. In criminal proceedings, the rules surrounding character evidence are more
nuanced, especially distinguishing between evidence of good character (which is
generally admissible) and evidence of bad character (which is usually inadmissible
unless certain conditions are met).
Despite the exceptions, the default position remains one of exclusion, and any
attempt to introduce character evidence must be justified under one of the
recognised exceptions provided by statute or case law. Courts retain a significant
degree of discretion in determining admissibility, and where character evidence is
improperly admitted, it may constitute a ground for appeal—especially in
criminal trials where prejudice can affect the fairness of the trial.
In conclusion, the general inadmissibility of character evidence under Kenyan law
serves to uphold fairness, relevance, and judicial efficiency in legal proceedings.
While exceptions exist, they are carefully circumscribed to prevent the misuse of
character as a tool for smearing or unfairly bolstering a party’s case. The
statutory framework under the Evidence Act, supported by leading authorities
such as R v. Rowton, provides a clear doctrinal basis for this exclusionary rule.
Admissibility of Character Evidence in Civil Proceedings in
Kenya
In civil proceedings under Kenyan law, the admissibility of character evidence is
generally prohibited, except in narrowly defined circumstances. This position is
rooted in both policy and statutory authority, primarily Section 55 of the
Evidence Act (Cap. 80, Laws of Kenya). The section establishes a strict rule that
character
evidence is irrelevant and inadmissible if its sole purpose is to suggest that a party
acted in a particular way merely because of their disposition or reputation. In other
words, civil litigation must be confined to facts directly related to the dispute, not
to assumptions about a party’s personality or moral tendencies.
The central policy consideration behind this rule is to maintain judicial efficiency and
fairness. Courts are mandated to adjudicate on the facts and legal issues specific to
each case. Allowing character evidence would unnecessarily complicate trials,
distract from the key issues, and potentially subject parties to unfair prejudice. For
example, a party’s alleged dishonesty in unrelated matters should not influence a
court’s decision in a contract dispute unless such dishonesty is directly related to the
case at hand.
However, this general rule is subject to three major exceptions, where
character evidence becomes admissible in civil proceedings:
1. When Character Is Directly in Issue
This is the most well-established exception. Where the character of a party is a fact
in issue, character evidence is not only admissible but necessary to resolve the
dispute. This commonly arises in defamation suits, particularly where justification is
pleaded by the defendant. If the defendant claims that the defamatory statement
was in fact true (i.e., a justification defence), then they must prove the truth of the
allegations, which typically includes presenting evidence of the plaintiff’s bad
character. In this instance, the character of the plaintiff is at the heart of the case.
This is supported by Section 55(1) of the Evidence Act, which provides:
“In civil cases, the fact that the character of any person is such as to affect the
amount of damages which he ought to receive is relevant.”
Although this provision is framed in terms of damages, its principle has been
judicially extended to situations where the character itself is the substantive
issue.
2. When Character Affects the Quantum of Damages
Another situation where character evidence may be admissible in civil cases is when
it bears upon the assessment of damages. For instance, in libel or slander cases, a
plaintiff claiming that their reputation has been damaged invites scrutiny into the
nature of that reputation. If it can be shown that the plaintiff had a pre-existing poor
reputation (e.g., was already widely known to be dishonest or immoral), then this
could reduce the amount of damages awarded.
This position is clearly recognized in Section 55(2) and Section 12 of the Evidence Act.
These provisions allow for evidence that mitigates or affects the amount of
compensation, including the character of the injured party.
In such contexts, evidence of character is not being introduced to prove conduct, but
rather to provide a full picture of the harm caused (or lack thereof). The principle
here is proportionality: one should not receive large damages for reputational harm if
there was little or no reputation to protect in the first place.
3. When Character Is Relevant to the Credibility of a Witness
A final exception arises where a party’s character is relevant to the credibility of a
witness. Under Section 154 of the Evidence Act, during cross-examination, a witness
may be questioned regarding their character as it relates to veracity, accuracy, or
honesty. This is crucial in cases where the outcome depends heavily on witness
testimony, and one party seeks to challenge the reliability or truthfulness of the
other’s witnesses.
For example, if a witness has a known history of dishonesty or has previously been
convicted of perjury, this can be brought out in cross-examination to impeach
their credibility. Here, character evidence is not introduced to prove the conduct
in issue but to challenge the trustworthiness of the testimony.
This exception reflects the longstanding common law principle that a witness's
character for truthfulness may be explored to test the weight of their evidence. It is
a practical concession to the realities of trial where witness testimony often plays a
central role.
Judicial Approach and Case Law
Courts in Kenya have consistently emphasized that these exceptions must be applied
narrowly to prevent misuse. The leading case Scott v. Sampson [1882] 8 Q.B. 491 is
often cited for the principle that character evidence should not be used to determine
liability unless character is directly in issue.
Moreover, the courts stress that character evidence must be relevant to a material
fact in the case and not merely included to attack or bolster a party’s personality or
history. Any attempt to sidestep this rule can render the evidence inadmissible and
even expose a party to adverse rulings or costs.

Admissibility of Character Evidence in Criminal Proceedings in

Kenya
In criminal proceedings, character evidence plays a more significant and complex role
than in civil proceedings. While the general rule under the law of evidence is that
character evidence is inadmissible to prove conduct on a particular occasion, Kenyan
law—primarily through the Evidence Act (Cap. 80)—recognizes clear exceptions to
this rule. These exceptions reflect the unique nature of criminal trials, where issues of
guilt, credibility, and sentencing often intersect with the accused's character.
1. Distinction Between Good and Bad Character Evidence
Kenyan law, in line with common law traditions, draws a sharp distinction between
evidence of good character and evidence of bad character in criminal trials.
a. Good Character Evidence
Good character evidence is generally admissible and may be introduced by the
accused person to:
 Support a defence by suggesting the accused is unlikely to have committed
the offence;
 Enhance the credibility of the accused where they testify in their own
defence. This principle is codified in Section 56 of the Evidence Act, which provides:
“In criminal proceedings the fact that the person accused is of good character is
relevant.”
Historically, this rule developed even before accused persons were allowed to testify
in their own defence (pre-1898). At that time, courts accepted good character
evidence from other witnesses to suggest that the accused was less likely to commit
the crime charged. After the law changed to allow the accused to testify, such
evidence also became relevant to their credibility when they choose to take the
stand.
Notably, if an accused does not testify, good character may still be proven
through other witnesses or documents, and Section 56 makes clear that such
evidence
remains relevant whether or not the accused gives evidence.
2. Admissibility of Bad Character Evidence
While good character evidence is freely admissible, bad character evidence is
generally inadmissible unless specific exceptions apply. This rule reflects the
concern that jurors or judges may be prejudiced if they learn of an accused's past
misconduct or poor reputation.
However, Section 57 of the Evidence Act and case law provide four main exceptions
where bad character may be admitted:
a. When the Accused Has Introduced Evidence of Their Good Character
Once the accused puts their good character in issue, they open the door for the
prosecution to rebut it by introducing evidence of bad character. This is based on the
fairness principle—the accused should not mislead the court into thinking they are of
unblemished character without the prosecution having the chance to challenge it.
This principle was illustrated in the English case R v. Rowton (1865), where the court
allowed rebuttal of good character evidence by the prosecution, but only through
general reputation, not personal opinions.
b. When Bad Character Is Itself a Fact in Issue
In certain crimes, particularly sexual offences, prior misconduct may be directly
relevant to the offence charged. For example, in a case involving sexual
offences
against minors, prior similar acts may be introduced to show a pattern or system of
behaviour. In such cases, the bad character is not collateral but part of the probative
facts of the case.
Case law such as John Makin & Another v. Attorney General for New South Wales
[1894] AC 57 has recognized this exception, where multiple instances of infant deaths
in the care of the accused were held to be relevant in establishing a pattern, and
therefore admissible.
c. Where the Law Expressly Allows Prior Convictions or Bad Acts to Be Considered
Certain statutes allow for prior bad acts or convictions to be admitted, particularly
where they relate to issues like habitual offending, sexual predators, or recidivism.
Though these are not general rules under the Evidence Act, such provisions are
found in specific criminal statutes, such as the Sexual Offences Act or Penal Code
provisions concerning persistent offenders.
d. Where the Accused Testifies and Is Cross-Examined
Under Sections 127 and 128 of the Evidence Act, if the accused elects to testify
under oath, they can be cross-examined like any other witness, including being
questioned about their character and past conduct, provided the court permits such
questioning.
However, this is subject to judicial discretion, and there are safeguards against unfair
prejudice. The prosecution cannot, as a matter of course, attack the accused’s
character without court approval unless the accused has already introduced such
evidence.
3. Character and the Right to Silence
Kenyan law is particularly cautious in protecting the right to silence, as guaranteed
under Article 50(2)(l) of the Constitution, and reinforced by Section 77 of the
Evidence Act. If an accused chooses not to testify, no adverse inference can be
drawn from their silence, and character should not be discussed unless otherwise
admissible under the outlined exceptions.
In R v. Bathurst (1968) 2 QBD 99, the court clarified that even judges must avoid
commenting on an accused person’s silence. The judge may explain to the jury that
the accused has a right to remain silent and that no guilt should be inferred from the
exercise of that right.
4. Character Evidence and Sentencing
Once conviction occurs, the rules on admissibility of character evidence change. At
the sentencing stage, courts may consider a much wider range of information,
including:
 Past convictions;
 General character and social background;
  Conduct while on bail or in custody.
This is essential for determining whether the accused deserves leniency or a harsher
penalty. The court is permitted to receive such information to assist in crafting a
sentence that reflects both deterrence and rehabilitation.