Evidence Law

MT. KENYA UNIVERSITY FACULTY OF LAW THE LAW OF EVIDENCE I - READING LIST AND COURSE OUTLINE BOOKS AND STATUTES All students are advised to have and continuously consult the following:(1) The Kenya Evidence Act (Cap. 80). (2) Cross and Tapper on Evidence by Colin Tapper (3) Evidence for Magistrates Vols. 1 & 2 by P. Durand. The following are recommended for additional reading: (1) (2) (3) (4)

Wigmore on Evidence vols. 1-X. Evidence in East Africa by H.F. Morris. Sarkar on Evidence A preliminary Treaties on Evidence at the Common Law by J.B. Thayer.

The law journals should also be consulted for various learned articles pertaining to the law of evidence. WEEK ONE 1.

INTRODUCTION Cross and Tapper on Evidence Pages 1 to 60 Evidence Act Cap 80 Section 1 to 4 -The place of evidence in legal philosophy; -Law of evidence and legal reasoning.

2.

HISTORICAL -Early modes of trial in England and the resultant evolution of law of evidence. -Importation of English Law of evidence in colonial India. -From India to East Africa -The Kenya Evidence Act, 1963; Its conclusiveness.

WEEK TWO 3.

PRELIMINARY DEFINITIONS AND PRINCIPAL ITEMS OF JUDICIAL EVIDENCE a) -Facts -Facts in issue

b)

c) d)

-Relevancy -Admissibility -Proof, probating forms -Evidence, insufficient evidence prima facie evidence, conclusive evidence, presumptions. -Testimony -Hearsay -Documents -Things Facts ……………………….of other facts (circumstancial evidence). -Classification of evidence –Facts which may be proved/ need not be proved by evidence. CASES Republic vs Hardy (1794) 24 State JR 199 Republic vs Sims (1946) 1 ALL ER 697,701 Republic vs Yaccob (1981) 72 CR APP 311 Joy vs Phillips Mills and Company Limited (1916) 1 KB 849 C.M.C Aviation Limited vs Cruisair Ltd. (No. 1) 1978 K.L.R. 103. Salam Dean v R. 1966 ENA. 272 Amber May v. R. Cr. App. No. 24 of 1979 (unreported C.A.) Peter Kuibita Paul v. R. Cr. App. No. 71 of 1978 (Unreported C.A) Bartlett vs Smith 12 LJ Ex 287 R vs Reynolds (1950) KB 606 Metro Politan RY vs Jackson (1877) 3 App . cas 193 Payne vs Harrison (1961) 2 Q.B 403 and 2 ALL ER 873 Cozens vs Brutus (1973) 2 ALL ER 1297 Herniman vs Smith (1928) AC 305.

WEEK THREE 4.

RELEVANCE AND ADMISSIBILITY Cross and Tapper on Evidence Pages 69 to 79 Evidence for Magistrates Durand Pages 1 to 23 Evidence Act Cap 80 Section 3 to 16 Wigwore on Evidence vol 1 ss 9 and 10 -Philosophy and Empiricism -Meaning of relevance -Meaning of Admissibility -Res Gestae forming part of the same transaction. CASES

and

DPP vs Kilbourne (1973) AC 729 Ellis (1926) 6B&C 145 Ratten vs R (1972) AC 378 R vs Premji Kurji (1940) 7 EACA 58 Rvs Mulji Jamnadas (1946) 13 EACA Stanley Musinga vs R (1951) 18 EACA 211 R vs Gokaldas Kanji (1949) EACA 116 R. v. Patel /1957/ E.A. 416 (K) Mohammed Saed Akrabi vs R (1956) 23 EACA 512 Homes v. Newman 1931 Ch. 112. R. v Christie 1914 A.C. 545 R. v. Bedingfield (1879) 14 Cox C.C. 341. Teper v. R. 1952 A.C. 480. Agassiz v. London Tramway Co. Ltd., 1872 27 L.T. 492. R. v Johnson (1847) 2 Car & Kir 354. R. v. Brabin & Another (1947) 14 EACA 80. R. v. Boyle & Merchant 1914 3K.B. 339. Lobo v R. (1926) 10 K.L.R. 55. WEEK FOUR 5.

SIMILAR FACTS EVIDENCE -What is similar fact evidence? -Evolution of the concept -English and Other Jurisdictions -S. 15 and similar fact evidence. -The Expansionist and the Contricti------Theories -Rationale of S. 15 CASES Makin v. A.G. for N.S.W. /1984/ A.C. 57. Mohamed Saeed Gkarabi v R. (1956) 23 EACA 512. The Quuen v Harold Whipp and Anor (1955) 28 KLR 243. John Makindi v. R. 1961 E.A. 327. Yafesi Kayima v. R (1551) 18 EACA 288. Brown v. Eastern & Midland Rail Co. (1989) 22 Q.B.D. 391 Noor Mohamed v R (1949 1 All E.R. 345. R. v. Armstrong /1922/ 2 K.B. 55 R. v. Smith (1915) 11 Cr. App. Re. 220. Achieng v Republic (1972) E.A 37. R. v. Bond (1960) 2 K.B. 389. R. v. Francis (1874) L.R. 2 C.C.R. 128. R. v. Bell /1911/ A.C. 47. R. v. Sims/ 1946/ 1 K.B. 531 /1946/ 1 All E.R. 697. R. v Straffen/ 1952/ 2 Q.B. 911.

Thomson v. R. /1918) A.C. 221. R. v. Fitz Patrick / 1962/ 3 All E.R. 84 R. v. Ollis (1940) 24 Cox C.C. 554. Harris v. D.P.P /1952/ A.C. 694; /1952/ 1 All E.R. 1044 Boardman v. D.P.P /1974/ 3 All ER R. v. Mortimer 1936 25 Cr., App. R. 15 R. v. Mansfield 1978 1 ALL E.R. 137 (C.A) R. v Scarrot 1978 1 ALL E.R. 672 (C.A) R. v. Barrington 1981 1 ALL E.R. 1132. i) ii)

ARTICLES: Gooderson, 1956 Cambridge L.J. ………… AND 1957 Cambridge L.J 55 Elliot, Guide to similar facts, pts I & II 1983 Crim L.R. 284 352

WEEK 5 AND WEEK 6 6.

BURDEN AND PROOF Cross and Tapper on Evidence Pages 129 to 186 Evidence for Magistrates Durand Pages 24 o 59 Evidence Act Cap 80 Section 107 - 119 -What is burden of proof? -Burden of Proof v. Burden of adducing evidence (i.e. legal burden v. evidential burden). ARTICLES (i) Birch, ‘ the Hunting of the Shark’ 1988 Crim. L.R. 221 (ii) Denning (1945) LQR 380 CASES Murimi v. R. /1967/ E.A.. 542 (CA). Bhat v. B /1957/ E.A. 332 (CA). R. v. Raotes ‘Kenya’ Ltd. /1958/ E.A. 13 (K) Remat Ahmed v. R. /1959/ E.A. 804 (T) Wabiro Alias Musa v. R. /1960/ E.A. 184 (CA). Comr. of Customs v. S.K. Panachand / 1961/ E.A. 303 (CA). Besson v. Allibhoy (1906) 2 E.A.L.R. 8 Ryde v. Bushel /1967/ E.A. 517 (CA). Amoar Mahiddin v. Sikuthani (1914) 2 U.L.R. 91. Fazi v. Mohamed 1968/ E.A. III (T). Hakam Bibi v. Mistry Fatch Mohammed (1955) 28 K.L.R. 91. Kimani v. Gikanga (1965/ E.A. 735 (CA). Uganda Native Trading Co. Ltd. V. Muwema (1958) 23 E.A.C. 62. Woolmington v. D.E.P / 1935/ A.C. 462. Leonard Aniseth v R. /1963/ E.A. 206 (C.A). Saidi s/o Mwakawanga v. R. /1963/ E.A. 6(T).

CKale v. R. /1965 E.A. 555 (CA). Reed v. R. (1952) 1 T.L.R. (375. R. v. Josephine Muthoni w/o Ithanga (1948) 23 K.L.R. (1) 71. Waera s/o Madova v. R. /1962/ E.A. 183 (K). Cheminigwa v. R. (1956) 23 EACA 451. Malangu s/o Kieti v. R. /1959/ E.A. 797 (CA). Nyameru s/o Kinyoboya v. R. (1953) 20 E.A.C.A. 192. R. v. Beard /1920/ A.C. 479. Godiyana Baranga s/o Rugwire v. R. /1952/ E.A.C.A. 229. Nyakite s/o Oyugi v. R. /1959/ E.A. 4322. R. v. Kamau s/o Njoroge (1939) 6 E.A.C.A. 133. R. v Kibiegor Arap Bargutwa (1939) E.A.C.A 135. R. v. Saiji K Kabila Kiunga / 1963/ E.A. I (T). Ottoman Bank v. Mawani /1965/ E.A. 464 (K) Commissioner of Income Tax v. Bapoo 1958 E.A.. 223. Vollabalas Shamsi et al v. Commissioner of Income Tax 1954 21 EACA 16. Joseph Mbithi Maula & Anoth. V. R. Cr. Pp. No. 77 of 1979 (C.A. unreported CA.) Wangari Mathai v Andrew S. Mathai Civil Appeal No. 21 of 1979 (C.A. unreported). May v. O’Sullivan 1955 92 C.L.R. 654. MATTERS ESTABLISHED OTHERWISE THAN BY EVIDENCE WEEK SEVEN 7.

JUDICIAL NOTICE: Cross and Tapper on Evidence Pages 81 to 91 Evidence for Magistrates Durand Pages 142 to 146 Evidence Act Cap 80 Section 59 -61 -What is Judicial Notice? -What are the Underlying Principles? -Its place in the Law of Evidence. CASES R. v Luffe (1807) 8 East 193 Re Oxford Poor Rate Case (1857) 8 E & B. 184 Burns v Edman /1970/ 2 Q.B. 541. Mye v. Niblett /1918/ I.Q.B.23 Preston-Jones v. Preston Jones /1951/ A.C. 391. Commr. of Customs v. S.K. Penachand /1961/ E.A. 303 (CA) Saleh Mohamed v. R. (1953) 20 EAC 141 Ryde v. Bushel /1967/ E.A. 817 (CA) Nazir v. R. /1962/ E.A 345 (CA) K.L.R. 91. Brooke Bond (Kenya) Ltd. V. Chai Ltd. (1972) E.A. 10 Mohamed Taki v. R. 1961 E.A. 206 Kimani v. Gikanga 1965 E.A. 735.

Gupta v. Continental Builders Ltd. 1978 K.L.R. 83.

WEEK EIGHT 8.

PRESUMPTIONS Sec 4,119 of Evidence Act Cap 80 -What are presumptions? Classifications of presumptions -of law + fact -Continuance,Guilty knowledge,Intention,-Legality and Accuracy,Legitimacy,Marriage,Place of presumptions in the judicial process and their impact on the law of evidence. CASES Re Taplin (1973) 13 ALL E.R. 105. A.G. v. Bradlaught /1885/14 Q.B.D. 667 Kanji & Kanji v. R. 1961 v E.A. 411. Morris v Kanaen /1946/ A.C. 459. Gordon v. Gordon /1903/ A.C. p.141. The Poulet Peerange Case /1903 / A.C. 395 Maturin v. A.G. /1938/ 2 ALL E.R. 214 Pazi v. Mohamed /1968/ E.A. III (T) Piers v. Piers (1849) 2 H.L. Cas. 331. Tweney v. Tweney /1946/ p. 180. Zus v. Uganda /1967/ E.A 420. Wanjiku v. Macharia (1968) E.A 216 Case v. Ruguru (1979) E.A. 55. R vs Hepworth and Fearnley (1955) 2 QB 600 R vs Steane (1947) KB 997 Chard vs Chard ( 1956) 259

9.

FORMAL ADMISSIONS Cross and Tapper on Evidence Pages 91 -What are admissions and what are formal admissions? -Civil Cases -Criminal Cases -Format + Informal + Confessions

RELEVANT FACTS WHICH MAY NOT BE PROVED WEEK NINE 10.

ESTOPPEL Cross and Tapper on Evidence Pages 92 to 110 Evidence for Magistrates Durand Pages 277 to 290 Evidence Act Cap 80 Section 120 to 123 Principles of estoppel and rationale Nature of estoppel – legal or evidential Classification CASES Law v. Bouveries /1891/ 3 ch. 82. Maritime Electric Co. Ltd. V. General Dairies Ltd. /1939/ A.C. 610. Canada and Dominian Sugar Co. Ltd., v. Canadian National etc. 1947 A.C. 46. Greenwood v. Martin’s Bank /1933/ A.C. 51. Jordan v. Money (1854) H.L.C 185 Central London Carty Trust v. High Trees House 1947 K.B. 130. Rajabali Hassan v. Hassanali Manji Haji 1961 E.A. 720. Freeman v. Cooke (1848) 2 Exch. 654; 1843-60 ALL E.R. 185. Lowe v. Lambank /1960/ 1 W.L.R. 196. Balwant Singh vs Kipkoech arap serem (1963) EA 651 Dukhiya vs Standard Bank of SA (1959) EA 958 Suyedu Binti Abdulla bin Mohammed vs Waki Commissioners Zanzibar (1949) 6 ZLR 227 Fatuma Binti Abdulrehman bin Mohammed El Ruwohia vs Abdulla bin Mohammed bins Salim El Ruweni (1949) 8 zlr 244 Conventry Sheppard & Cn. V. Cr. E. Ry (1885) 11 Q.B.D. 776. Combe v. Combe /1951/ 2 K.S. 215. Nurdian Bandali v. Lombank (Tanganyika) Ltd. 1963 E.A. 307. Century Automobiles v. Hutchings Biemer /1965/ E.A. 304. Income Tax Co.. v. A.K. /1964/ E.A. 648 (K) Chatrath v. Shah /1967/ E.A. 93 (C.A). Baker v. Dewey (1823) I B & C 704. Baker v. Dewey (1823) I B & C 704. Greer v. Kettle /1958/ A.C. 156 (HL). Carpenter v. Buller (1841) 6 M & W. 209. Jenabai Sachga v. Shamga 1953 E.A. 227 (Z). E.A. Power Co. v. Dandora Quarries 1967 E.A. 728. Projapat v. Ashok Cotton Co. 1964 E.A 309, 316 (U). Folkes & Co. v. Thakkrar /1959/ E.A. 36 (CA) Redseth V. Shaw /1967/ E.A. 833 (K). Ravi Bin Mohamed v. Ahmed 1957 E.A. 782. Priestman v. Thomas (884) 9 A.D. 210.

Mills v. Cooper /1967/ 2 Q.B. 459. Bell v. Homes 1959 ALL E.R. 449. Wood v. Luscombe /1964/ ALL E.R. 972. Brusden v. Hamphrey (1884) 14 Q.B.D 141. Workington Harbour Board v. Trade Idemnity 1938ALL E.R. 101. Guest v. Warren (1854) 9 Ex. 379. Raddolf v. Tuck /1962/ Q.G. 175. Marginson v. Blackbirri B.C. 1939 2 K.G. 526, 1939 ALL E.R. 273. Thompson v. Thompson 1957 P 19; 1957 I ALL E.R. 161. Hayward v. Hayword 1961 p. 152; 1961 I ALL E.R. 236. United Overseas Bank v Jiwani 1977 ALL E.R. 733. D.P.P. v. Humpreys /1977 A.C. 1 Chase International Investment Corporation and Another v. Laxman Keshra & Others 1978 K.L.R. 143. Njuguna Wamuthi v. Simeon Koimburi Civil Appeal No. 31 of 1976 (C.A.. unreported). Hollington v. Hewthorn & Co. 1943 K.B. 857. Robinson v. Oluoch 1971 E.A. 376. Queens Cleaners Ltd. V. E.A.C & Another 1972 E.A. 229. Meng Leeng Development Ltd. Vs. Jip Hon. Trading Co. Ltd 1985 I ALL E.R. 120. WEEK TEN (10) 11.

PUBLIC MONEY , COMPETENCE, COMPELABILITY AND PRIVILEGE: Cross and Tapper on Evidence Pages 447 to 507 Evidence for Magistrates Durand Pages 92 to 120 Evidence Act Cap 80 Section 125-139 -Meaning and Rationale of privileges. -Question of public money. -Classification of privilege – Public and Private. -Public Privilege – Court; Official Communication -Private – Husband and wife; professional. CASES Duncan v. Cammell, Laird & Co. Ltd. 1942 A.C. 624. 1942 ALL E.R. 587; III L.K.K.B. 406; 166 L T 366; 50 T.L.R. 242; 86 Sol. J. 287. Merricks v. Noth-Bower 1965 I Q.B. 57 (CA). Re Grosvenor Hotel, London (No.2) 1965 Ch. 121 (CA). Conway v. Rimmer 1968 A.C. 910 (H.L.) Raichura v. Sandai 1967 E.A. 624 (CA) Rishen Chand Mohindra v. Mathra Dass (1941) 19 K.L.R. (2) 67. Kapnor Singh s/o Harman Singh v. R. (1951) 18 E.A.C.A 283. Njunja v. R. (1965) E.A. 773 (K).

Dhukale v. Universal TOT Co. et at. (1974) E.A. 395. Shah v. Rep. (1970) E.A 39 Omari s/o Hassan v. R. (1956) 23 E.A.C.A. 580. R. v. Amkeyo (1917) 7 E.A.L.R. 14. R. v. Robin (1929) 12 K.L.R. 134. R. v. Mwakio Asani s/o Mwanguku (1932) 14 K.L.R. 145. R. v. Toya s/o Mamure (1932) 14 K.L.R. 145. R. v. Nyawa wa Nyawa (1933) 15 K.L.R. 99. Sankey v. Whiltlam (1978) 21 A.L.R. 505. Robinson v. State of South Australia (No. 2) 1931 A.C. 704. Glasgow Corporation v. Central Land Board 1956 B.C. (H.C) 1 Nixon v. United States 418 U.S. 603, 41 L – ed. 2d. 1039. Mudavadi v. Seme High Election Petition No. 12 of 1978 (Unreported). Purmah Cil Company Ltd. V. Bank of England 3 W.L.R. 722. See Speeches of Lord Edmund Davies at p. 738 -746. Keith at p.746-751 and Scarman at p. 752-762. British Steel Corporation v. Grandada Television Ltd. 19. 1 ALL E.R. 417. R. v. King 1983 1 ALL E.R. 929. Secretary of State for Defence & Another vs. Guardian Newspapers Ltd. 1984 3 ALL E.R 601 WEEK ELEVEN 12.

PUBLIC POLICY AND ILLEGALLY OBTAINED EVIDENCE Cross and Tapper on Evidence Pages 539 to 561 -Meaning of illegally obtained evidence – legality strictor sensu, constitutionality and regularity. -The common Law and American developments. -East Africa. -Modern Law Review Vol. 28 1965. -Dennis, ‘Re constructing the Law of Evidence’ (1989) Current Legal Problems 21. CASES Jeffrey v. Black 1978 1 ALL E.P 55. R. v. Sang 1979 2 ALL E.R. 1222. Mohan Cai Trivedi v. R. 1959 E.A. 355.

NOTE

TWO WEEKS OF CATS (Oral and Written) ONE WEEK FOR REVISON OF THE CAT (Last Week to Exams) JOINT CLASS 1 4 WEEKS OF STUDY

ANDREW MUMA/2012

INTRODUCTION What is evidence? Each writer on the subject approaches the answer to this question in a slightly different way. Generally speaking the term “evidence” has two different meanings; facts, and the means of proving those facts in a court of law. OSBORN, THE CONCISE LAW FICTIONARY (4th Edn.) gives the following definition:“All the legal means, exclusive of mere argument, which tend to prove or disprove any matter of fact, the truth of which is submitted to judicial investigation;...” You, as the judicial tribunal, must be completely conversant with the law determining (1) what facts may be proved in court, and (2) how these facts may be proved, and you must first become aware of the different meanings of the term “evidence” as you will hear it used. For example, in the statement “From the evidence, I am convinced beyond reasonable doubt that ...”, the word, “evidence” means “facts proved in court”, and the sentence could be easily read, “From the facts proved in court, I am convinced beyond reason able doubt that ...”. Again, in s. (2.K.E.A.: “All facts, except the contents of documents, may be proved by oral evidence.” Here the words “oral evidence” refer to the means by which facts may be proved, i.e by spoken evidence, and not to the facts themselves. It is also important to bear in mind that “evidence” is first tendered or offered to the court: that is to say the parties to the suit, through their witnesses, offer certain facts to the court

in support of their case. Moreover or not these tendered facts are accepted by the court, or admitted into evidence depends on what the facts are and the method by which they are tendered, and it is to this procedure that the law of evidence applies, although certain laws, particularly those relating to presumptions, also affect the question as to how these facts will be treated once they have been admitted. The definition of “evidence” which is contained in the K.E.A. is found in s.3, the Interpretation section. This section is, in effect, your dictionary for the K.E.A., for whenever you need to know the definition of a word in the Act which is found in s.3 that is the meaning which you must give to the term, regardless of what you may have previously understood the term to mean, and whether or not it may be used in a different sense in ordinary conversation or even in another Act. The definition of “evidence” reads:“evidence” denotes the means by which an alleged matter of fact, the truth of which is submitted to investigation, is proved or disproved; and, without prejudice to the foregoing generally, includes statements by accused persons, admissions, and observations by the court in its judicial capacity;. The word “evidence” is often found with an adjective which describes in legal terms the type of evidence. In as much as these terms appear frequently, not only in the K.E.A. but in the Reports, you must memorize and understand them completely. The following list is taken from OSBOTN, THE CONCISE LAW DICTIONARY: 1 Oral evidence: statements made by witnesses in court. 2 Documentary evidence: documents produced for inspection by the judge. (The question of what a document is discussed elsewhere). 3 Conclusive evidence: evidence of a fact whcih the court must take as full proof of it, and which excludes all evidence to disprove it. 4 Direct evidence: evidence of a fact actually in issue; evidence of a fact actually perceived by a witness with his own senses. (The definition of “direct evidence” inasmuch as it relates to oral evidence is found in s.63(2)K.E.A, and is discussed elsewhere).

5 Circumstantial evidence: evidence of a fact not actually in issue but legally relevant to a fact in issue. 6 Real evidence: evidence supplied by material objects produced for the inspection of the court. 7 Extrinsic evidence: oral evidence given in connection with written documents. 8 Hearsay evidence: evidence of a fact not actually perceived by a witness with his own senses, but proved by him to have been stated by another. (A mere complete definition is given in connection with s.33 K.E.A.). 9 Indirect evidence : circumstantial or hearsay evidence. 10 Original evidence: evidence which has an independent probative of its own. 11 Derivative evidence: evidence which derives its force from some other source. 12 Parol evidence: oral, extrinsic evidence 13 Prima facie evidence: evidence of a fact which the court must take as proof of such fact, unless disproved by further evidence. 14 Primary evidence: evidence which itself suggests that it is the best evidence, and which is rejected to be produced if available. 15 Secondary evidence: evidence which itself suggests the existence of better evidence, and which is rejected if primary evidence is avaiable. (Note that in connection with documents and the proof of documents, primary and secondary evidence are defined in ss.65 and 66, K.E.A.)

Facts: As a general statement we may say, with certain exceptions which we will consider later, that the court is concerned almost conclusively with the FACTS of the case and the means by which these facts say be proved. The court will then, of course, apply the relevant law to the admissible facts in order to reach a decision. “Fact” is defined in s.3 K.E.A. as follows: “fact” includes:a any thing, state of things, or relation of things, capable of being perceived by the senses; b any mental condition of which any person is conscious; “fact in issue” means any fact from which, either by itself or in connexion with other facts, the existence, non-existence, nature or

extent of any right, liability or disability, asserted or denied in any suit or preceeding, necessarily follows; A “thing” under (a) above is a material object (a chair), or a fact (that man is 30 years old. A “state of things” is the state of affairs (hali ya mambo), and a “relation of things” is the relation facts bear to each other: the chair is in the room; he is my son, therefore I am his father. The senses are the special powers of the body by which a person is conscious of things, ie sight, hearing, smell, taste and feeling, “feeling” to include the definition of (b) above, the mental condition of which a person is conscious. Thus if a man through his senses “feels” or is conscious that another person is angry, happy, disturbed, etc, this is a fact. It is important to remember, however, that this type of fact arises from the physical manifestations of that feeling in the other person, that mental condition. If a person is angry, he shows his anger by frowning, clenching his fists, speaking certain words, acting in a certain way, etc, and if a witness states “he was angry”, he should be able to describe how the man acted, what he said; etc to support his feeling; to support the fact. As we will see in the section on the burden of proof, a party to a suit or proceeding must prove the facts upon which he rests his case, i.e. he must prove the facts in issue. Each party will assert or allege that certain things are true, that certain facts exist, claiming that the existence of these facts means that the court should decide the case in his favour. In many cases the parties will assert an entirely different set of facts; the prosecution claims that the defendant assaulted Mr. X; the defendant alleges that he did not assault Mr. X. In some instances, particularly in civil cases, both parties will assert that even though only one agreed set of facts existed, the case should be decided in his favour e.g. in a contract case where there is an agreed set of facts and the parties assert that the law as applied should result in a particular decision. The question therefore arises as to when a fact is proved or disproved. The answer is found in s.3 K.E.A. 1 A fact is proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it exists.

2 A fact is disproved when, after considering the matters before it, the court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it does not exist. 3 A fact is not proved when it is neither proved nor disproved. The presumption of innocence. The basic presumption underlying the criminal law of Kenya is the presumption of innocence, found in the Constitution of Kenya in Chapter II (Protection of Fundamental Rights and Freedoms of the Individual), Section 21(2)(a) as follows:21. (1) ... (2) Every person who is charged with a criminal offence a shall be presumed to be innocent until he is proved or has pleaded guilty; and in connection therewith, subs.(7), which reads:(7) No person who is tried for a criminal offence shall be compelled to give evidence at the trial. These provisions are reflected in the K.E.A. and in the Criminal Procedure Code (hereinafter referred to as the C.P.C.) Direct and circumstantial evidence Evidence may generally be divided into direct evidence, and indirect, or circumstantial evidence. Direct evidence, in relation to oral evidence, is defined in s.63(2) K.E.A. as follows:(2) For the purposes of subsection (1) of this section, “direct evidence means a with reference to a fact which could be seen, the evidence of a witness who says he saw it; b with reference to a fact which could be heard, the evidence of a witness who says he heard it; c with reference to a fact which could be perceived by any other sense or in any other manner, the evidence of a witness who says he perceived it by that sense or in that manner; d with reference to an opinion or to the grounds on which that opinion is held, the evidence of a person who holds that opinion or, as the case may be, who holds it on those grounds.

Note that (a), (b) and (c) deal with facts, i.e. things, states of things or relations of things which are capable of being perceived by the senses, or mental conditions of which the witness was conscious, as set forth in s.3 (see p.iv), while subs (d) deals with the subject of the opinions of witnesses, based on facts which he has perceived. Opinions are admissible only under certain special conditions, which will be covered later. Circumstantial evidence is defined in OSBORN, T E CONCISE LAW DICTIONARY. A series of circumstances leading to the inference of conclusion of guilt. Evidence which although not directly establishing the existence of the facts required to be proved, is admissible as making the facts in issue probable by reason of its connection with or relation to them. CROSS AND WILKINS, AN OUTLINE OF THE LAW OF EVIDENCE, p. 147 says: An evidentiary fact is relevant to a fact in issue when, by itself, or together with other facts, it renders the existence of the fact in issue more or less probable. SARKAR says on pp. 32-33:All judicial evidence is either direct or circumstantial. By ‘direct evidence’ is meant when the principal fact is attested directly by witnesses, things or documents. (Note how this definition expands on the limited definition of direct evidence in s.63(2) relating solely to oral evidence; see p.v) To all other forms, the term ‘circumstantial evidence’ is applied, which may be defined that modification of indirect evidence, whether by witnesses, things or documents, which the law deems sufficiently proximate to a principal fact or facum .......... to be receivable as evidentiary of it. Circumstantial evidence is evidence of circumstances as opposed to what is called direct evidence. ......Circumstantial evidence may be best under codified law of evidence applicable in Kenya. Unfortunately in many areas there is an unfortunate dearth of cases interpreting or applying the

various sections, whereas in other areas, notably the sections relating to confessions, there is an overbundance of cases. The question then arises as to the effect of reference to English or Indian decisions on the sections. See discussion, MORRIS, pp. 10-14. The sections themselves, where they constitute an extension of the English Law of evidence, have been strictly construed; see dicta, R. v. Lyangia bin Luwanya and Another, (1938), 5 E.A.C.A. 122, 123. In considering the persuasive effect of English Decisions, the Court in R. v. Brabin and Another, (1947), 14 E.A.C.A. 80, 83 said:“As regards the application of the Indian Evidence Act it has been argued rather tentatively that it was intended to be merely a codification of the English law of evidence and that, in interpreting it, English decisions must be followed. As true that the Indian Evidence Act is in the main a codification of the English law of evidence and, in so far as it is so, here and there in the Act are definite deviations from English Law and where these occur the Act must prevail over the English case law as the Act has become part of the legislation of the Colony as a comprehensive Evidence Code. See Wallace Johnson v The Kind (1940) A.C. 231.” This statement was quoted in Mohamed Saed Akrabi v R., (1956), 23 E.A.C.A. 512, 515, and the Court then noted that since ss. 14-15 of the Aden Evidence Ordinance of the Englis law...” and considered a decision of the House of Lords. For the purposes of the District Magistrate it is primarily the decisions of the Privy council, so long as it was the ultimate court of appeal for East African countries, the Court of Appeal for East Africa and the respective High Courts, which provide precedential case law for authority. This text attempts only to make reference to these authorities, although relevant English or Indian decisions may be quoted or referred to in the decisions, for it is highly unlikely in any event that adequate reference and research material will be available. An inculpatory statement in a plea of “not guilty” is not evidence. It should be noted that when a defendant is called upon to plead, and in the course of pleading makes an inculpatory statement i.e. one which incriminates him in some way, but

becuase the statement is not an unequivocal admission of guilt, resulting in a plea of not guilty being entered, his statement cannot be used as evidence against him. See, for example R v Pirmin, (1934), 2 E.A.C.A. 64; R v Njoroge wa Banha and Others, (1935), 16 K.L.R. (2) 135; Wachira s/o Wambogo v R (1954), 21 E.A.C.A. 396, and chapter on confession. Application of the K.E.A. Section 2 provides:2. This Act shall apply to all judicial proceedings in or before any court other than Khadis court but not to affidavits presented to any court of officer nor to proceedings before an arbitrator.(*) ............. The words “or an African Court” were deleted by Act 17 of 1967, 1st Schedule, the Magistrate’s Courts Act; see Cotran, Integration of Courts and Application of Customary Law in Kenya, 4 East African Law Journal 14. * Amended as to affidavits Act No. 10 of 1969, see p. 168A. Evidence as related to procedure “Evidence” being defined in the Act as the means by which an alleged matter of fact is proved or disproved (ss p.ii), it is obvious that the law of evidence is closely related to the law of procedure, both in civil and criminal cases. Indeed, several of the sections which are now found in the K.E.A. were originally found in the Criminal Procedure Code (Cap. 75). For example: the present section concerning the competency of the accused and husband or wife as witnesses in criminal cases and communications made during marriage (ss.127 and 130) were drawn from the former s.159 C.P.C., and the former s.195 relating to the reports by government analysts and geologists is now found, as amended, in s.77 K.E.A.. Part III of the Act is entirely precedural in

nature, dealing with the examination of witnesses, although the principles underlying the various sections have their origins in the basic concepts of fairness. They also deal with the means by which facts may be presented in court of law.

RELEVANCE & ADMISSIBILITY RES GESTAE ‘Res Gestae’, it has been said, is a phrase adopted to provide a respectable legal cloak for a variety of cases to which no formula of precision can be applied’. The words themselves simply mean a transaction. Under the inclusionary common law doctrine of Res Gestae, a fact or opinion which is so closely associated in time, place and circumstances with some act or

event which is in issue that it can be said to form a part of the same transaction as the act or event in issue, is itself admissible in evidence. The justification given for the reception of such evidence is the light that it sheds upon the act or event in issue: in its absence, the transaction in question may not be fully or truly understood and may even appear to be meaningless, inexplicable and unintelligible.

The importance of the doctrine, for present

purposes, is its provision for the admissibility of statements relating to the performance, occurrence or existence of some act, event or state of affairs which is in issue. Such statements may be received by way of exception to the hearsay rule. Res Gestae forms part of hearsay. R V. BEDINGFIELD [1879] Vol. 14 Cox C.C. 341 A girl was living with her boyfriend until the relationship turned sour. The boyfriend allegedly cut her throat. She managed to run out even with a cut throat and managed to say ‘see what Harry (Bedingfield) has done to me’. In court the question arose as to whether this statement could be admitted in evidence. Lord Justice Cockburn was emphatic that it could not be admitted. He said that it was not part of the transaction, that it was said after the transaction was all over. (The transaction being the cutting of the throat) The Judge held that it was not admissible as part of the Res Gestae since it was something stated by her after it was all over.” The girl said after it was all over. Under S. 33 of Law of Evidence Act, this would have been admitted. 33.

Statements, written or oral, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases— (a)

When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death,

in cases in which the cause of that person’s death comes into question. Such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes in question; R V. Premji Kurji [1940] E.A.C.A 58 In this case the accused was charged with murder, the deceased had been killed with a dagger and there was evidence that the accused had been found standing over the deceased body with a dagger dripping with blood. The prosecution adduced evidence that a few minutes before, the accused had been seen assaulting the deceased’s brother with a dagger and he had uttered words to the effect that ‘I have finished with you, I am now going to deal with your brother’. The question was whether this statement was admissible as forming part of the transaction. Is that part of the same transaction as the murder. Were the words uttered part of the same transaction. It was held that they were part of the same transaction because when two acts of an accused person are so interwoven as to form part of the same transaction, it is not proper to shut out evidence of one of the acts even though it may involve introducing evidence of the commission of another offence.

R V. RAMADHANI ISMAEL [1950] ZLR 100 A Girl was living in the village with her parents and she was allegedly raped by the accused. After the rape incident, she unlocked the door and ran over to her parents’ house, a few paces away from the accused’s house. She got hold of her father’s hand and took him to the accused house. She pointed to the accused person and said ‘daddy, this is the Bwana’ and the question was whether this statement was part of the transaction.

The transaction here is rape, which is

already finished by the time she goes to call her daddy. Is it admissible? The court held that it was not part of the transaction. The transaction was already over.

Different courts have different conception of what forms part of the transaction. The court in this rape case adopted a conservative view of what formed the transaction. TEPPER V. R [1952] A.C 480 In that case there was a fire some place and a house was burning and the lady was heard to ask somebody who looked like the accused some minutes later ‘your house is burning and you are running away’ the question was whether this statement was part of the transaction as the fact in issue being Arson. It was held to be part of the transaction. R V. CHRISTIE 1914 AC 545 The accused was convicted of indecent assault on a boy. The boy gave un-sworn evidence in which he described the assault and identified the accused but made no reference to any previous identification. The House of Lords, by a majority of five to two, held that both the boy’s mother and a constable had been properly allowed to give evidence that shortly after the alleged act they saw the boy approach the accused, touch his sleeve and identify him by saying, ‘That is the man’. Evidence of the previous identification was admissible as evidence of the witness’s consistency, ‘to show that the witness was able to identify at the time’ and ‘to exclude the idea that the identification of the prisoner in the dock was an afterthought or mistake. THOMPSON V. TREVANION 1693 Skin L.R. 402 This case had to do with statements made by participants in or observers of events. Thus in this case it was decided that what a wife said immediately upon the hurt was received and before she had time to devise or contrive anything for her own advantage was held to be admissible in evidence. ALL THE ABOVE CASES HAVE SOMETHING TO DO WITH WHETHER THE STATEMENT IS PART OF THE FACT IN ISSUE.

R V. RATTEN [1972] A.C 378 Ratten was charged with the murder of his wife. He offered the defence of accident. He said that he was cleaning his gun and it accidentally went off injuring his spouse. There was nobody else at the scene of crime or at the point where this incident occurred and the prosecution sought to tender evidence of a girl who worked with the telephone exchange who said that a call had been made from the accused house at about the time of the murder. The girl said that the voice on the phone betrayed emotion, she was begging to have the police called over and before the operator could link the woman with the police the phone hang up on the woman side. The question was, was the statement by the telephone operator admissible as part of the transaction? Did it happen contemporaneously with the facts in issue? The court held that the evidence of the telephone operator was admissible and in explaining why the Privy Council explained that the important thing was not whether the words were part of the transaction but whether the words were uttered during the drama. The court also said that the particular evidence of the operator contradicted the evidence which was to the effect that the only telephone call outside from his house during the murder was a call for an ambulance.

Cap 80,Section 7 “7.

Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts or facts in issue, or which constitute the state of things under which they happened or which afforded an opportunity for their occurrence or transaction are relevant.”

They will be those facts which will afford the opportunity to the facts in issue. The occasion may not be a fact in issue but it helps us understand the fact in issue or relevant facts.

CAUSE/EFFECT John Makindi V. R

EALR 327

The accused in this case was charged with the murder of a boy over whom he stood in loco parentis (foster father) to. In his defence the accused averred that the deceased was epileptic trying to explain away the injuries on the boy and how they may have occurred. Medical evidence showed that the boy had died due to severe bleeding in the head and a doctor testified that there were blood clots in the boy’s head which had opened causing a lot of blood to flow from the deceased’s head and therefore occasioning his death.

The prosecution tendered

evidence that the accused had previously beaten up this boy and had previously been convicted for beating up this boy and he had threatened the boy with further beatings on account of having been convicted. The question was whether evidence of previous beating was admissible. The court held that the evidence of previous beatings was admissible in the circumstances. Could the court admit the evidence of past beatings? The court held that the beatings of earlier beatings was admissible because having taken the evidence of blood clots at the head, it was important to know the cause of the blood clots and the evidence of the previous beatings was admissible as a fact leading to the bleeding and ultimate death. The cause of things or relevant facts or facts in issue will be admitted to explain the cause of death. E.g. the opening of the blood clots and loss of lots of blood. The previous beatings showed us the cause and was thus admissible, so the cause of things and the cause of relevant issues will be admitted. They explain the cause of death like in this case. STATE OF AFFAIRS R V RABIN & ANOTHER [1947] Vol. 14 E.A.C.A 80 In this case there was a charge of corruption and the prosecution tried to lead evidence of a previous shady dealing in which the two persons whose conduct was in issue were involved. The question was whether the evidence was relevant. The court held that the evidence of the

previous shady dealings was relevant because it gave the state of things under which the bribe was given.

It explained the state of things in which the transaction occurred. The transaction

which is the fact in issue. OPPORTUNITY R V Premji Kurji R.V. (1940) 7 E.A.C.A. 40 The case shows that the accused had opportunity to commit the murder. This case discusses Res Gestae. The deceased had been killed with a dagger, and evidence was admitted at the trial of the fact that just prior to the death of the deceased the accused had assaulted the deceased’s brother with a dagger and had uttered threats against the deceased. It was held that the accused had an opportunity, he had used the dagger only a few minutes before he used it to commit the murder. Section 8 8.

Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.”

Facts which relate to motive, preparation or conduct of any fact in issue will be relevant. Motive is that which makes a person do a particular thing or act in a particular way. For instance a person who is accused of rape may be motivated by lust or desire. A person who says they killed in self defence will be motivated by fear. Motive is what influences a person’s acts or conduct. For all voluntary acts, there will be a motivation and you need to look at a person’s conduct to explain away the motivation. Similarly any fact that would constitute preparation for a fact in issue is also going to be admissible. The planning or arranging means and measures necessary to commit an act or to do something. If it is a crime, it will be the type of measures one takes to help achieve the committing of that crime. For example if you intend to steal there will be surveillance involved. Hiring implements required to commit the crime.

Similarly any fact which shows the conduct of any party to the proceedings is relevant. Section 8 (4) 8. (4) The word “conduct” in this section does not include statements, unless those statements accompany and explain acts other than statements.” Statements are expressly excluded. You are not talking about statements but preparation. Under section 8 you are dealing with things that people do and not things that people say. If you want to bring in a statement, it would have to be associated with an act. Section 9 9.

Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by such a fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant insofar as they are necessary for that purpose.”

Facts, which explain or introduce facts in issue, are relevant. It is only phraseology of Section 9 that differs from factors that have been explained in Section 6,7 and 8.

10.

Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring,

as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.” The legislator is said to have been acting Ex Abundante Cautella - Out of an abundance of caution. This section deals with conspiracies. If there are reasonable grounds to believe that there is a conspiracy, then whatever is said or done by any person in reference to their common intention, after the time such intention was formed, is a relevant fact. What does a conspiracy entail? It is where people sit, agree and form a common intention to do something. Common intention is the defining factor of the conspiracy. It is relevant to prove 1. That it is a conspiracy; and 2. To prove that persons were parties to the conspiracy.

R V. KANJI 1949 VOL 15 EALR 116 It is stated with reference to S. 10 that a person who joins a conspiracy in law is responsible in law for all the acts of his fellow conspirators done in furtherance of the conspiracy whether done before during or after his participation. It is only after common intention is established. STANLEY MUSINGA ET AL V. R [1951] 18 EACAR 211 Here the court said that “A person who joins a conspiracy is responsible in law for all the acts of his fellow-conspirators done in furtherance of the conspiracy, whether done before, during or after his participation.” The time when, by act or declaration, reference is made to the common intention is not important so long as it is after that time when the intention is first entertained by one of the conspirators.

R V. MULJI JAMNADAS ETAL 1946 13 EACA 147. The defendants were charged with a conspiracy to effect a lawful purpose by unlawful means, in that they toured the neighbourhood in a lorry to recruit labour for the Company’s Sugar Works, and that acting together they did on a number of occasions compel persons by the use of force and threats of force to get into the lorry and submit to being carried away on it for labour at the Sugar Works. The defence argued that intimidating labour into employment was not an offence known to the criminal law of Uganda, and did not, therefore, constitute “unlawful means”. The Court noted, however, citing from ARCHBOLD, that a tort which is not a criminal offence is sufficient to satisfy the provision as to “unlawful means”, and upheld the convictions. Section 11 - Facts which are inconsistent with or which affect the probability of other facts. 11.

Facts not otherwise relevant are relevant— (a)

if they are inconsistent with any fact in issue or relevant fact; or

(b)

if by themselves or in connexion with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.

What kind of facts are relevant S. 11 (b) is the epitome of all that is found relevant in a fact in issue. Read S. 5 along with S. 11. Section 12 12.

In suits in which damages are claimed, any fact which will enable the court to determine the amount of damages which ought to be awarded is relevant.”

Section 12 – Deals with the facts which affect the quantum of damages. This Section is said to be a boon to ambulance chasers. E.g. contributory negligence your participation affects the amount of damages you receive.

If the plaintiff in a civil suit claims damages as compensation for injuries suffered, the amount of damages which will compensate him naturally becomes a fact in issue. Evidence which helps the court to determine the amount of damages is relevant. The following cases show various types of facts which the courts have considered in reaching an assessment. M’IBUI V. DYER [1967] E.A. 315 (K) “Wounding in course of arrest by private person on suspicion of felony. Psychological factors of malingering and “compensationists” taken into account, as well as aggravation of damages by element of injury to reputation.” MU WANI [1964] E.A. 171 (U)WANGA V. JI “The deceased was an African child and the court considered the amount of damages for the loss of service to the mother and grandparents, the father being deceased.” Section 13. 13.

Where the existence of any right or custom is in question, the following facts are relevant— (a)

any transaction by which the right or custom in question was created, claimed, modified, recognised, asserted or denied, or which was inconsistent with its existence; or

(b)

particular instances, in which the right or custom was claimed, recognized or exercised, or in which its exercise was disputed, asserted or departed from.

If what you have in issue is your right in custom, 13 (a) factors that show when customs were created, whether it is relevant and what kinds of arguments were made for the custom. (Locus classicus)

Relevance and admissibility

RELEVANCY AND ADMISSIBILITY Chapter II of the K.E.A. deals with questions of relevancy and admissibility, and includes sections dealing with general rules, admissions, confessions, statements by persons who cannot be called as witnesses, statements in documents in civil proceedings, statements and special circumstances, judgments, opinions, character and the extent to which a statement is admissible. We will examine the relevancy of the types of evidence listed in the Chapter under separate headings, i.e. under what conditions these statements or other evidence are relevant and admissible in evidence. In this Chapter, however, we will deal only with the general rules of relevancy and admissibility.

a

The Distinction Between Relevancy and Admiissibility Section 3 defines admissibility “admissible” means admissible in evidence.

In plainer terms, evidence is admissible if it may be presented in court and the court will consider the evidence in reaching its determination, “court” being defined in S. 3 as including “all judges and magistrates, and all persons, except arbitrators, legally authorized to take evidence.” WIGWORE ON EVIDENCE (3rd Edn.), Vol. I, ss.9 and 10 sets forth two exioms, or propositions that commend themself to general acceptance, concerning admissiblity. 1. Have but facts having rational probative value are admissible and, 1. All facts having rational probative value are admissible, unless some specific rule forbids. To have rational probative value, a fact must be so connected, directly or indirectly with a fact in issue in an action or other proceeding that it tends to prove or disprove the fact in issue. Any two facts so related to each other that according to the common occur of events one either taken by itesle or in connection with other facts proves or renders probable the past, present or future existence or non-existence of the other. OSBORN, CONCISE LAW DICTIONARY, taken from Stephen, the draughtsman of the I.E.A., 1872. In simple terms, then, relevancy determines whether one fact is related to another, and a fact is relevant to a case when it is related to the facts in issue; see definition, p. (iv). If admissible in evidence, the relevant fact will help the court to determine whether the right or liability or disability which one party claims to exist (and the other party denies) actually does exist, and if so, to what extent.

Sections 5 - 15 K.E.A. cover the general rules of relevancy. Throughout the rest of the Act, the terms “admissible” and “inadmissible” are used, setting forth when and under what circumstances relevant facts may be admitted in evidence, or when they are excluded. Those sections which deal with instances when relevant facts may not be admitted in evidence, or may be admitted only under certain circumstances, are, “exclusionary rules.” All facts to be admissible, must be relevant, but not all relevant facts are admissible. b.

General Restriction on the admissibility of Evidence. In drafting the I.E.A., the principle of exclusion was followed, for only these facts

which are specifically declared to be relevant are admissible. SARKAR, p. 38, quotes from Stephen (Digest, introd.). “The great bulk of the law of Evidence consists of negative rules declaring what, as the expression runs, is not evidence. The doctrine that all facts in issue are relevant to the issue, and no others may be proved, is the unexpressed principle which forms the centre of and gives unity to all these express negative rules.” This general approach is set forth in s.5:5. Subject to the provisions of this Act and of any other law, no evidence shall be given in any suit or proceeding except evidence of the existence or non-existence of a fact in issue, and of any other fact declared by any provision of this Act to be relevant. The general rule is, therefore, that no fact can be given in evidence unless it is either a fact which is (a) evidence of the existence or non-existence of a fact in issue, or (b) one which is declared to be relevant under ss.6 - 16. All other facts are irrelevant unless they are declared to be relevant by some other specific section of the Act or by some other law. Since, being irrelevant, they do not bear directly upon and facts in issue, they are not

admissible in evidence, this to save the time of the court and to keep from confusing the issue. The decision on admissibility of evidence rests with the occurs, (See s.144). Questions concerning admissibility should be decided as they arise, and should not be delayed until judgment is given. When a party to the suit or proceeding objects to a question which has been asked, or to evidence which has been tendered, a decision on admissiblity should be made before the question is answered or the other evidence admitted. If objection is not taken at the time it is tendered, it is generally hold to have been waived, although it is the duty of the Magistrate to act on questions of admissibility. c.

What kinds of Facts are Relevant? Section 6 - 16 K.E.A. deal with the relevancy of certain kinds of facts.

1.

Facts forming part of the same transaction.

6. Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction are relevant whether they occured at the same time and place or at different times and places. Section 6 refers to facts which form part of the res gestae, defined in OSBORN, THE CONCISE LAW DICTIONARY as:“The facts surrounding or accompanying a transaction which is the subject of legal proceedings; or all facts so connected with a fact in issue as to introduce it, explain its nature, or form in connection with it one continuous transaction. Evidence of words used by a person may be admissible on the ground that they form part of the res gestae which might otherwise be inadmissible as hearsay.” Facts falling within the res gestae fall within three groups:-

1.

Acts consituting a series, for example when the series which is the fact in issue is the

existence of a custom or usage, which by definition is a custom or usage only because it is done by a large number of people over a long period of time, the custom or usage may be proved by evidence of the acts done over a period. (See discussion s.51). 2.

Acts or ommissions showing a continous fact, for example if the fact in issue is

whether a person is insane, the continuous conduct of that person forms part of the res gestae, and evidence may be given of conduct over a period of time. Other examples of continous conduct would be abstanting oneself to avoid creditors, premises used for prostitution (s.155 P.C.), etc. 3.

Acts which are part of one transaction, which has many illustratiers, both in civil

and criminal cases. Statements which the witness heard may also form part of the res gestae providing that (1) they are nearly contemporaneous, i.e. that they were made at the same time or nearly the same time as the transaction which is the fact in insure, (2) they are explanatory, ie that they explain the fact in issue (for example, if they explan a mental or physical condition at the time), (3) if they are not offered as evidence of the truth of the facts contained in the statements for then they would be hearsay as she statements were made by persons not called as witnesses. (See discussion, s.33). For example: A is accured of the murder of S by beating him. Whatever was said or done by A or B is one by-standers at the beating, or so shortly before or after the beating as to form part of the transaction; is a relevant fact. In this example the statements made by the by-standers and heard by the witness who repeats them in court are relevant only if the statements were uttered at the time of the transaction (the beating) or so soon therafter as to make it relatively certain that the

speaker was still operating under the stress of the occurrence and was not reflecting upon what he said. See R V Ratten. A transaction is a group of facts so connected together as to be referred to by a ..... legal crime, such a “crime”, a “contract”, a “wrong”, or any other subject to enquiry which may be in issue. Every fact which is part of the fact in issue even though that fact might not itself is in issue, is relevant, even though it might be hearsay were it not a part of the transaction. Note that the transaction may consist of a single incident which only takes a very short period of time, as when A returns home and, finding his wife in bed with another man, loses his temper and strikes him with a stick, killing him, the transaction, from the discovery to the death, may, take only a few seconds. Or the transaction may consist of a large number of facts which occur at different times and different places, occupying a much longer period of time, e.g it engages in a long correspondence and personal negotiations with 3 concerning a contract, after which goods are shipped and a dispute arises over interpretation of the contract as it provides for the time of payment events which take place over perhaps a period of years.

In both instances, however, the

transaction may be referred to by a single legal term. Note that this section and three following deal with circumstantial evidence: see pp.7 - ix. Other examples of facts constituting the res gestae: A is accused of waging war against the Government of Kenya by taking part in an insurrection in which property is destroyed, toops were attacked and goals broken open. The occurrence of these facts is relevant as forming part of the general transaction, though A may not have been present at all of them.

A sues B for a libel contains in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the label arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the label itself. The question is: whether certain goods ordered from B were delivered to A. The goods were delivered to several intermediate persons successively. Each delivery is a relevant fact. Section 6 is explained and illustrated by ss.7, 8 and 9. 2.

Facts causing or caused by other facts.

7. Facts which are the occassion, cause or effect, immediate or otherwise, of relevant fact or facts in issue, or which constitute the state of things under which they happened or which afforded any opportunity for their occurrence or transaction are relevant. ............................................ As a general rule, a fact is issue cannot be proved by showing that facts similar to it, but not part of the same transaction, have occurred at other times. There are, however, exceptions; see for example discussion of ss.14-15. Therefore if the fact in issue is whether the accused has committed a particular crime, that fact that he committed a similar crime is irrelevant for the purposes of showing that he committed the crime in question, for an accused is always cresumed to be innocent until he is proved or has pleaded guilty. (Constitution, sec. 21(2)(a), see p.(v). If, however, a previous corrupt transaction is such as to show the state of things under which the crime with which the accused is charged occurred, evidence of the previous transaction is admissible. In R. v. Brabin and Another, (1947), 14 E.A.C.A. Bc, on appeal from the High Court of Kenya, the charge was that the defendants, being persons employed by the Central Commodity Distribution Board obtained from one Hasham Kara 1000/= as an inducement for forbearing to show disfavour

to him in relation to the affairs of the Board. Evidence was admitted of a previous corrupt transaction between the defendants and Hasham Kara whereby, fice months previous to the transaction which was the fact in issue in this case, it was alleged that the defendants had demaned (and Hasham Kara had paid to them), 500/= as bribes to get his sugar supply, which had been stopped by the defendants, restored. On appeal, the defendants claimed that evidence of the earlier, transaction which had been admitted under s.7 I.E.A., had been admitted improperly. In its decision upholding the admission of the evidence, the Court stated:“The main fact in issue in the case was the obtaining of a bribe by the appellants jointly from Hasham Kara. In examining that issue one of the most importantly relevant elements in the ‘state of things’ under which the bribe was given was the relationship which existed at the time between the parties. If, for instance, the ‘state of things’ were that persons charged with demanding the bribe were at the time they demanded it total strangers to the person from whom they demanded it, that would be a very different ‘state of things’ from the position as alleged to be here, namely that the parties demanding the bribe on such terms with Hasham Kara that on a previous occasion only five months earlier bribes had been demanded and successfully extracted. It seems to us that under section 7 the fact that the appellants had on a previous and comparatively recent occasion successfully demanded and extracted bribes from Hasham Kara was relevant as showing the ‘state of things’ under which the fact in issue happened. Evidence of that fact was therefore by section 7 admissible.” The court then quotes from R v. Boyle and Merchant, (1914), 3 K.B. 339 as follows:“There is ... an essential difference between evidence tending to show generally that the accused has a fradulent or dihonest mind, which evidence is not admissible, and evidence tending to show that he had a fraudulent or dishonest mind in the particular transaction the subject matters of the charge then being investigaged, which evidence is admissible. It has been laid down that there must be a nexus or connexion between the act charged and the facts relating to previous or subsequent transaction which it is sought to give in evidence to make such evidence admissible.”

Note that the Court here is not saying that evidence of previous crimes is admissible in every case, but only where there is a connection between the previous crime and the crime with which the accused is charged and for which he is being tried, and when the previous crime shows the “state of things” at the time of the ommission of the present alleged crime. Also, evidence of this “state of things” does not prove that the accused committed the crime with which he is charged, but only provides evidence of the circumstances under which the present alleged crime was committed. R. v. Premji Kursi, (1940), 7 E.A.C.A. 58 discusses res gestae and ss.6 and 7 I.E.. in relation to a charge of murder. Here the deceased had been killed with a dagger, and evidence was admitted at the trial of the fact that just prior to the death of the deceased the accused had asaulted the deceased’s brother with a dagger and had uttered threats against the deceased. On appeal the accused argued that this was evidence of the commission of a separate offence and therefore inadmissible. The Court said:“It is true that it is not permissible to lead evidence of an accused having committed an offence of a similar nature in order to show that he is likely to have committed the particular offence with which he is charged and if this wounding had taken place in a different part of Zanzibar and were not connected with the murder this objection would of course be interconnected that the wounding of the deceased’s brother Jamnadas be regarded as part of the res gestae on the trial of the appellant for the murder of the deceased. The brother Jamnadas when wounded was working in the shop of his brother, the deceased, whilst the latter was in the godown of the shop nearby. After wounding Jamnadas the accused is alleged to have and ‘I have finished you and am going to show your brother’. Immediately afterwards the accused was seen at the godown standing over the deceased dagger in hand. As is explained in the notes to section 6 and 7 of the Indian Evidence Act and cases there cited in Woodroofe & Ali Amcer when two acts of an accused are so interwaven as to form part of the same transaction it is not proper to shut out evidence of one of the acts even though it may involve introducing evidence of the commission of another offence by the accused. The prosecution are entitled to put forward their whole story, otherwise it may be quite impposible

properly to appreciate the nature of and reasons for the act in respect of which the accused is being charged. Similarly under section 7 of the Evidence Act the fact that accused had a dagger and used it immediately before the alleged killing by him of the deceased with a dagger must be admissible as strong evidence of opportunity. We have no doubt that this evidence was rightly admitted.” Included in the meaning of s.7 is evidence of opportunity without which an accused could not properly have committed the crime. On the other hand, advantage, i.e. showing that an accused would gain something to his advantage through the commission of a crime, is of almost no account. Some examples illustrating s.7:1. The question is whether A is robbed B. The fact that, shortly before the robbery, B went to a fair with money in his possession and that he showed it or mentioned the fact he had it, to third persons, are relevant. 1. The question is whether A murdered B. Marks on the ground produced by a struggle at or near the place where the murder was committed, are relevant facts. 1. The question is whether A poisoned B. The state of B’s health before the symtems, arise when are claimed to be those caused by the poison, and the habits of B known to A, which would have given an opportunity to poison B, are relevant facts. Example (a) is an instance of facts relevant as giving occassion or opportunity, (b) of facts constituting an effect of a transaction (as the marks would be the effect of the struggic, and (c) of facts constituting the state of things under which an alleged fact happened. See John Makindi v R. [1961], 332 (C.A).

3.

Facts relating to motive, preparation and conduct

a) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. b) The conduct of any party, or of any agent of a party, to any suit or proceeding, in reference to such suit or proceeding or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact and whether it was previous or subsequent thereto. c) When evidence of the conduct of a person is relevant any statement made to him, or in his presence and hearing, which affects such conduct, is relevant. d) The word “conduct” in this section does not include statements unless these statements accompany and explain acts other than statements. .................................... A. Motive Motive is that which makes a man be a particular act or not in a particular way; a desire, fear reason etc which influences a person’s decision or choice. A motive exists for every voluntary act, and it is often proved by the conduct of a person. The mere existence of a motive is not immairating, for many persons may have a motive for doing something which only one person actually did, e.g. if an ..... unpopulated in a village were assulated, the entire village population may have a motive for the assault, but this does not mean that the entire population, or indeed any person in the village committed the assault.

If,

however, a villager is charged with the offence the motive for the assault would be relevant. An adequate motive is not in all cases necessary, for serious crimes have been committed for the most inconsequential of motives, or for motives which a reasonable man would consider inconsequential, as where a man is robbed or killed for only a few shillings.

Motive is an inference drawn from the facts; thus if a man is shown to have been badly in debt and without any propsect of obtaining funds from salary or loans, the inference could be raised that he had a motive to steal. Motives becomes an important element in the chain of presumptive proof, and becomes more important where the case rests on purely circumstantial evidence; however, the absence of any apparent favour for the accused to have committed a crime is always in favour of the accused, although it should not be overlooked that there may have been a motive which is unknown to all except the person who was influenced. b.

Preparation Preparation consists of planning and arranging the means or ensures necessary for

the ommission of a crime, and includes preparations to accomplish the commission, to prevent its discovery; to aid in the criminal’s escape or prevent his detection, and all the facts showing this preparation are relevant. Examples:a) A is charged with having poisoned B. The fact that A purchased poison of the type used to kill B before B died is relevant. b) A is charged with committing a theft. The evidence shows that the theft was was committed by a man with a beard and mustache. The fact that a shaved his beard and mustache on the day following the theft is relevant. c) A is charged with cashing a forged cheque. The fact that when .. was apprehended he was found in possession of an airline ticket to Dar es Salaam is relevant. No reference of guilt arises where the facts which the prosecution claims constituted preparation are shown to have been innocent, for example:In (a) above; A proves that he purchased the poison to kill rate. The inference of guilt is overthrown.

In (b) above, A proves that he shaved his beard and mustache on the advice of a doctor because he had a serious skin rash. The inference of guilt is everthrown. In (c) above, A proves that he was being sent to Dar es Salaam by his company for a conference which was planned after the commission of the offence. The inference of guilt is overthrown. C.

Conduct of a party or agent of a party or victim of an offence The conduct of a party to a suit or proceeding, or his agent, is relevant if:-

1. the conduct is in reference to the suit or proceeding, or 2. the conduct is in reference to any fact in issue in the suit or proceeding or relevant thereto. The conduct of the victim (the person an offence against whom is the subject of the proceeding as used in subject of the proceeding as used in subs. (2) is relevant if:1. the conduct influences any fact in issue or relevant fact, or 2. the conduct is influenced by any fact in issue or relevant fact, regardless of whether the conduct was previous to or subsequent to the fact in issue or relevant fact. For example: A is accused of a crime. The fact that, either before or at the time of, or after the alleged crime, A provided evidence which would tend to give to the facts of the case an appearance favourable to himself, or that he destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or asked people to give false evidence respecting the crime, are relevant. How would you apply the forgoing on motive and conduct in the case of Mandia v R., [1966] E.A. 315 (C.A), involving the Prevention of Corruption Act (Cap 65), s.3(2) of Kenya? How were the actions of the accused in that case relevant on the charge of corruptly giving a bribe to a police constable as an inducement to refrain from taking proceedings on alleged road traffic offences?

A.

Statements affecting conduct. When evidence of the conduct of a person is relevant under subs(2) any statement

made to him, or in his presence and hearing, which affects, such conduct is relevant, (subs. (3). Under the provisions of subs (4), the word “conduct” in s.8 does not include statements unless these statements accompany and explain acts other than the statements. There is a general rule that statements which are made in the presence of an accused person which he would normally have contradicted if they were unsure, and which he did not contradict; are evidence against him. For example:C was robbed, B said in the presence of A: “The police are coming to look for the man who robbeed C”. A runs away. The statement which B made is relevant since it affected the conduct of A. C was robbed. B says to A: I know that you are the man who robbed C. A remains silent. The statement is relevant. Here the legal maxim Gilence gives consenting ie where something is said to a person which he would normally contradict if the statement was untrue and the person does not contradict, therein. Ampliedly giving his son consent of the truth of the statement must be taken with considerable caution. For silence to be incriminating there must be circumstances which affected an opportunity to speak, and circumstance such as to render it more reasonably probable that the person would speak than that he would remain silent. It appears that silence does not extend to remaining silent after an accused as charged and cautioned instead of putting forwarding a defence the Difast Ojur s/o Samini Ojur v. R. (1954), 21 E.A.C.A. 352 not entirely in point, but containing authority for the proposition.

In the circumstances in the example as above i.e. where an accused either runs away, remains silence or given false and erasive answer his conduct. Couple with the statements made, is in the nature of an admission and therefore evidence against him. While the word conduct in subs. (4) does not include statements unless those statements accompany and explain acts other than the statements the significance of the act in many cases depends wholly upon the statement which accompanied it.

Thus, the

significance of the conduct is not clear without setting forth both the act and accompanying statements both are relevant, and may be proved together. Example:A is seen running down the street, bleeding from a cut on his head and shouting “3 struck me with a panga”. The acts of A and the accompanying statement may be proved as a whole as both are relevant. The conduct must be directly and immediately influenced by a fact which is relevant, or a fact in issue, and cannot be the result of some intermediate cause, such as the questions of another person. One situation in which the interweaving of a statement and conduct is of great importance is in sexual offences, where a complaint is admissible not to establish the facts complained of, but to show consistency where the veracity of the complainant is called into question. In Lobo v R. (1926), 10 K.L.R. 55, the accused was charged with the indecent assault of a young child. The child (Cayan) was alleged to have made a complaint to her mother immediately following the incident, and at the trial the mother was allowed to give evidence of the “complaint”. The court said at p.57:“What the jury was invited to consider is not so much what the complainant said as the manner in which the complaint was made; the terms of the complaint are relevant only as indicating the complainant’s conduct. Section 8 of the Evidence Act explains that the word

‘conduct’ in that section does not include statements; but laying a complaint is conduct, and the terms in which that complaint are laid are indicative of the complainant’s state of mind and so of the complainant’s conduct . But the words in which a complaint is laid are not admissible as evidence to establish the facts complained of .......... Section 8 of the Evidence Act limits the relevancy of conduct to that of a party or of a person an offence against whom is the subject of any proceedings. It has been repeatedly pointed out that the reason why evidence of conduct is admissible, is that if such conduct is consistent with the complaint’s evidence it is corroboration of the accuracy of that evidence”. (Emphasis added). (Note: the subject of evidence in cases of sexual offences is covered in detail elsewhere). 4.

Explanatory and introductory facts.

9. Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by such a fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happend, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose. ............................ Under s.9, facts are relevant if they are necessary for the following purposes:1. to explain or introduce a fact in issue or relevant fact; 2. to support or rebut an inference suggested by such a fact; 3. to establish the identity of any thing or person whose identity is relevant; 4. to fix the time or place at which any fact in issue or relevant fact happened; 5. to show the relation of parties by whom any such fact was transacted. Examples

As to (1): A, accused of theft, is seen to give the stolen property to B, who is seen to give it to C. B, as he delivers the property to C, says “A says you are to hide this.” B’s statement is relevant as explanatory of a fact which is part of the transaction. As to (2): A says in the presence of B: “The police are coming to find the person who beat C”. B leaves immediately. The fact that B had a previouse engagement is relevant to rebut the inference raised by his conduct, i.e. that he is concerned in the crime. As to (3): A is accused of assaulting B. B gives evidence that in defending himself he struck his assailant on the foot with a stone. The fact that A was seen on the day of the alleged assault walking with a limp is relevant in establishing his identity as the assailant. As to (4): The question is on what day the defendant was seen in Kisumu. A witness states that he remembers that this was the same day his brother arrived from Kampala on holiday.

This fact is relevant in fixing the time and place at which the fact of the

defendant’s presence in Kisumu happened. As to (5): A sues B for a libel imputing disgraceful conduct ie A 3 affirms that the matters alleged to be libellous is true. The position and relations of the parties at the time when the libel was published may be relevant facts, the object being to show the malice of the libeller. It is sufficient to show that there was an argument, whereas to go into the details of the quarrel between A and B would be remote and waste too much time. 5.

Statements and actions referring to common intention:

10. Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the

persons believed to be so conspiring, as well as for the purpose of showing that any person was a party to it.

6.

Definition of conspiracy A consipiracy consists of a combination or agreement between two or more persons

to do an unlawful act, or to do a lawful act by unlawful means, and it does not matter whether the act is completed or not. The penal code has provisions for:a) general conspiracy - s.395 b) seditious conspiracy - s.57 c) conspiracy to commit a felony - s.393 d) conspiracy to commit a misdemeanour - s.394 e) conspiracy to defeat justice - s.117 f) conpiracy to defile - s.157 g) conspiracy to defraud - s.317 h) conspiracy to murder - s.224 In prosecuting a case of conspiracy, the prosecution must prove:1. that there was, in fact, a conspiracy and 2. that the defendant, or defendants, were parties to the conspiracy. In a conspiracy, the conspirators (i.e. the parties to the conspiracy), have all taken unto themselves the prosecution of a common design. Therefore, what is said or done by any one of them to further the conspiracy is part of the res gestae and is considered to be

the act of all the conspirators. This is true whether the acts were done or the statements were made at different times, and even though some of the conspirators did not know others in the conspiracy, or the acts or statements took place before one defendant joined the conspiracy or after he left it. b.

The East African Law is broader than the English Law..

“This provision (s.10) is considerably wider than the English Law since the statements and actions need only be ‘in reference to’ the common intent and need not be in execution or furtherance of the common purpose: moreoever, under the East African and Indian Acts an act or declaration of a co-conspirator even after the termination of the conspiracy is a relevant fact for the purpose of showing that such person was a party to it. (citing R. v. Gokaldas Kanji and Another, (1954), 16 E.A.C.A. 116). It is, no doubt, on account of the departure of section 10 of the Evidence Acts from the English law that there is a reluctance in the East African occurs to invoke this section.

“MORRIS, EVIDENCE IN EAST

AFRICA, p.33. c.

Unlawful means Section 395 P.C. reds in part:-

“Any person who conspires with another to effect any of the purposes following, that is to say:(g) to effect any lawful purpose by any unlawful means, is guilty of a misdemeamour. As to “unlawful means: the Court in R v. Mulji Jamnadas and Others (1946), 13 EA.C... 147, 148 said:-

“Archbold (31st Ed. p. 1408) defines conspiracy as an agreement of two or more persons ‘to do an unlawful act, or to do a lawful act by unlawful means’ and at page 1409 of the same volume we find the following said:‘The term ‘unlawful’ in the definition has been held to include civil wrongs as well as acts punishable criminally if done by one person’. The court then quoted with approval a dictum from the case of R. v. Druitt, 10 Cox 592 as follows:“The public had an interest in the way in which a man disposed of his industry and his capital, and if two or more persons conspired by threats, intimidation or melestation to deter or influence him in the way in which he should employ his talents or his capital they would be guilty of an indictable offence - that is the common law of the land.” In Mulji Jamnadas’ case the defendants were charged with a conspiracy to effect a lawful purpose by unlawful means, in that they toured the neighbourhood in a lorry to recruit labour for the Company’s Sugar Works, and that acting together they did on a number of occassions compel persons by the use of force and threats of force to get into the lorry and submit to being carried away on it for labour at the Sugar Works. The defence argued that intimidating labour into employment was not an offence known to the criminal law of Uganda, and did not, therefore, constitute “unlawful means”. The Court noted, however, citing from ARCBHOL, that a tort which is not a criminal offence is sufficient to satisfy the provision as to “unlawful means”, and upheld the convictions. This matter was further discussed in R v. B.N. Patel, [1957] E.A. 416 (K) where the defence put forth was that the act which the defendants were alleged to have committed was neither a crime nor a tort; though laid under s.396 P.C. (now s.395 P.C. (The objection was allowed in the grounds that the information before the court did not contain sufficient

particulars to apprise the accused of the fact that the “unlawful purpose” alleged was contravention of s.139 of the Bankruptcy Ordinance, intent to defraud creditors). d.

When does the section became operative? Before the section becomes operative there must be reasonable grounds to believe

that two or more persons have conspired together to commit an offence or an actionable wrong, and that the accused were members of the conpiracy. Logically this cannot mean that the prosecution must prove these two things beyond reasonable doubt, for this could come only at the conclusion of the case. The question is one of the order of evidence. The problems are discussed in SARKAR, pp. 103-4, and the following observations in the Queen’s Case, [1820, 2B & B. 284, 310] quoted therein will assist in understanding the problem: “.... on the prosecution of a crime to be proved by conspiracy, general evidence of an existing conspiracy may, in the first instance, be received as a preliminary step to that more particular evidence, by which it is to be shown that the individual defendants were guilty partipaters in such conspiracy... Speaking generally, it may be said that the evidence in conspiracy must show two things; an agreement for the alleged purpose, and the defendant’s participation in it. Either kind of evidence may be given first, for example, a general conspiracy may be proved, and then the prosecution must proceed to show that the defendant was implicated in it; until this is done, the general evidence is only provisionally relevant against a particular defendant. Alternatively, it is open to the prosecution to give evidence of the acts particular individuals with a view of proving the general conspiracy, but the acts of one defendant are not evidence against another until it has been shown that they were done in pursuance of a common design. As observed before, the judge has a discretion in the matter ... and will be guided by the special circumstances of each case.”

A trial judge admitting evidence under s.10 because he has reasonable grounds for believing in the existence of a conspiracy may reject it at a later stage if that reasonable ground for belief is displaced by other evidence. Example:- A.B.C.D.E.F.G. and H conspire together to overthrow the Government of Kenya. A procedures arms in Europe, B collects money in Kisumu, C persuades persons in Nyeri to join the conspiracy, D publishes writings in Nairobi advocating the overthrew of the Government, E transmits to F the money which B had collected in Kisumu. These facts are all relevant to prove the existence of the conspiracy and the fact that H was involved, but the problem the prosecution faces is how to present the evidence, for none of it is relevant against any of the other parties to the conspiracy until there is reasonable ground to believe that there was, in fact, a conspiracy. In R. v. Gokaldas Kanji Karia and Another, (1949), 16 E.A.C.A. 116, a case involving a charge of conspiring to export diamonds from Tanganyika illegally, the Court said:“Certainly there was no direct evidence of an agreement, but how rarely is conspiracy proved by such evidence. As (counsel) portinently observed conspirators do not normally meet together and execute a deed setting out the details of their common unlawful purpose. It is a common place to say that an agreement to conspire may be deduced from any acts which raise the presumption of a common plan.” On this point, see also Ongodia and Eirma v. Uganda, [1967] E.A. 137 (U) involving an appeal from a Court Martial arising out of the 1956 insurrection in Uganda, and considering whether a conspiracy was proved where other conspirators were “a person or persons unknown”. In Gokaldas’s case, therefore, the position would appear to have been that evidence of acts was introduced into evidence which raised the presumption of conspiracy, ie gave reasonable grounds for belief that two or more persons conspired together to commit an

offence or actionable wrong, and after this reasonable belief was established, then the evidence of one in reference to the common intention became admissible against all the others. 1. The last two sentences are from R. v. Hunt, 1820, 1 St. Tr. (M.S.) 171 and from the authority of Jitendra v. R., AI937, C. 99 S.B. respectively.

c.

The acts of the conspirator extend to all conspirators. If two or more persons conspire together, each is regarded as the agent of the other,

and just as the principle is liable for the acts of his agent in civil law, so each conspirator is liable for the actions of his fellow-conspirators in furtherance of the common intention held by all. See, for example, R. v. B.N. Patel, [1957] E.A. 416 (K) where four accused were charged with conspiring together “and with other persons not before the court”, and Ongodia and Erma v Uganda, [1967] E.A. 137 (U) where the accused were convicted on charges that they had conspired together “and with other persons unknown.” In Stanley Musinga and Others v. R., (1951), 18 E.A.C.A. 211, 216, the Court said:“A person who joins a conspiracy is responsible in law for intention is not important so long as it is after that time when the intention is first entertained by one of the conspirators. See Gokaldas’s case, supra, p.12 of showing that such person was a party to it.” See also R. v. Awath bin Ali and Others, (1910), 3 E.A.L.R. 82. f.

Husband and wife may not conspire together The court of Appeal in Laila Jhina Nawji and Another v. R. (1955), 22 E.A.C.A. 524,

reached the conclusion that the expression “any other person” in the Penal Code with

reference to conspiracy was not applicalbe to the spouses of a marriage resident in common law, so that spouses of a monogamous marriage resident in Tanganyika were unable to conspire together, bit the spouse of a polygamous marriage could do so. On appeal to the Privy Council (see:(1956), 23 E.A.C.A. 609), the decision was reversed and the convictions quashed upon the reasoning that English Law had been incorporated into the Tanganyika Penal Code by virtue of s.4 so that the rule that husband and wife could not conspire together extended to all marriages valid under the law of Tanganyika, whether monogamous or polygamous. The reasoning of the decision is based upon the “legal fiction” that, for certain purposes, husband and wife are one legal person, and the Privy Council noted that this is one of the aspects of the fiction which has not been removed or modified by statute. Thus if husband or wife are charged with conspiring together (and with no others) the charge must fail. It would appear, however, that if a husband and wife conspire together and with others, each would be guilty of conspiring with the others, but not with each other. This aspect was not discussed, and the evidence problems are obvious. For example, H is charged with conspiring with A, B, and C, and W is also charged with conspiring with A, B and C but not with H, owing to the above rule. H gives evidence which extends to A, B and C. It cannot extend to W, not only because H and W are not legally able to conspire together, but because of the rules Husband and Wife evidence, covered later. g.

Problems of summing-up in conspiracy cases J.L.M. Brown v R. [1957] 371 (C.A) is a good example of the problems to be faced

by a Court in summing-up in complicated conspiracy cases, the Court noting on p.373 that “the provisions of s.10 of the Indian Evidence Act introduce a special complication”, presumably because of the aforementioned extension of the English law in that under the Acts the statements and actions need only be “in that under the Acts the statements and actions need only be “in reference to” the common intent, and need not be in execution Addendum to discussion of s.10

The Report of the Commission on the Law of Marriage and Divorce, para 219 reads:“219. On the question of conspiracy, we take a rather different view (i.e. that no change be made in ss.19 or 396(2) P.C. dealing with compulsion by husband and the defnition of accessories after the fact). This offence is dealt with in sections 393-395 of the Penal Code, which contain no express exception in favour of husband and wife. It has been held, however, (citing Laila Jhina Mawji v The Queen, (1956), 23 E.A.C.A. 609; see p. 13, supra) that section 3 of the code imports the English rule that a husband and wife cannot be guilty of conspiring together. This was based on the fiction that husband and wife were one person. Our recommendations generally are based on a different approach and we can see no reason in principle why a husband and wife who conspire together to commit an offence should be exempt from liablity, nor do we think a change in the law in this respect would do anything to weaken the matrimonial bond. Recommendation No. 79 We recommend that section 393 of the Penal Code be amended to provide that notwithstanding any English rule of interpretation to the contrary, a husband and wife may be found guilty of conspiracy” If the Recommendations of the Commission are adopted and the legislation as proposed, i.e. the Law of Matrimony Act, 196 is enacted, s.393 P.C. will have added a subsection which will read:“(2) For the avoidance of doubt, it is hereby declared that a husband and wife may be guilty of conspiracy together”. See second Schedule to proposed Bill.

or furtherance of the common purpose; see para 4(b), supra, p. 10. The Court after discussing R. v. Newland and Others, [1954]. 1 03, 158, and noting that the judge here had taken great pains to put to the jury the case for and against each of the appellants, said:“The true position, we think, must be that it is a matter for the discretion of the trial judge, and his exercise of that discretion will not be interferred with by an appellate court except for one or more of the usual well-recognised reasons.” 6.

Facts inconsistent with or affecting probability.

11. Facts not otherwise relevant are relevant a) if they are inconsistent with any fact in issue or relevant fact; or b) if by themselves or in connexion with other facts they make the existence or nonexistence of any fact in issue or relevant fact highly probable or improbable. Under s.11 any fact which either disproves or tends to disprove any relevant fact or fact in issue is itself relevant. Admissibility depends upon the proximity of the fact sought to be proved and the fact in issue or relevant fact upon which it bears, for to take the section in its widest possible terms and admit every possible fact having even the slightest bearing on the relevant fact or fact in issue would be hopelessly to confuse the case by introducing innumerable collateral facts; i.e facts which have no connection with the main fact except by way of disproving any material facts proved or asserted by the opposing party. Examples:a) The question is whether A committed a crime in Nairobi on a certain day. The fact that on the day in question A was in Kisumu is relevant. The fact that, near the time when the crime was committed, A was at a distance from the place it was committed which

would render it highly improbable, though not impossible, that he committed it, is relevant. b) The question is whether A committed a crime. The circumstances are such that the crime must have been committed by A, B, C or D. Every fact which shows that the crime could have been committed by no one else, and that it was not committed by B, C, or D is relevant. If these collateral facts are to be admissible, there are two requirements:the collateral fact must itself be established by reasonably conclusive evidence, and the collateral fact must, when established, afford a reasonable presumption or inference as to the matter in dispute. An example which illustrates (a) above is the situation where an accused puts forth an alibi, a defence where the accused alleges that at the time of the offence charged he was somewhere ielse, so could not have committed the crime. An alibi is relevant in that it is entirely inconsistent with the allegation that the accused committed the crime, because either he was not present or it was highly probable that he could have traveled to the scene of the crime, committed the crime, and returned within the space of time available. As to (b) above, suppose A, B, C and D were locked in a prison cell with E, who is murdered. No one else could have entered the cell. B and C were chained too far from E to have touched him, and D was paralyzed. This evidence is all admissible since it makes it “highly probable” that A committed the murder. 7.

Facts affecting the quantum of damages

12. In suits in which damages are claimed, any fact which will enable the court to determine the amount of damages which out to be awarded is relevant. ...............................

If the plaintiff in a civil suit claims damages as compensation for injuries suffered, the amount of damages which will compensate him naturally becomes a fact in issue. Evidence which helps the court to determine the amount of damages is relevant. The number of reported cases involving the awarding of damages procludes reference to but a few for examples as to the various types of facts which courts have considered in reaching an assessment:Raja v Kataria [1965] E.A. 362 (U) - discussing the method of assessing damages in a fatal accident. See also Kampala Adrated Water Co. Ltd. v Gulbanu Rajabali Kassam, [1961] E.A. 291 (C.A) [1958]E.A. 268 C.A.). M’Ibui v Dyer, [1967] E.A. 171 (U) - wounding in course of arrest by private person on suspcion of felony. Psychological factors of malingering and “compensationits” taken into account, as well as aggravation of damages by element of injury to reputation. Muwanga v Jiwani [1964] deceased was an African child and the Court considered the amount of damages for the loss of service to the mother and grandparents, the father being deceased. Motor Mart & Exchange (Finance) Ltd. v Ghandi, [1963] E.A. 657 (K) - hire purchase; hiring terminated by owner; vehicle not returned to owner; assessment of damages. The subject of damages and other remedies in civil cases will be further covered under the subjects of torts and contracts. Other cases on the subject may be located by searching the Indexes of the Reports under the subject-heading of Damages. 8.

Facts affecting the existence of right or custom.

13. Where the existence of any right or custom is in question, the following facts are relevant:a) any transaction by which the right or custom in question was created, claimed, modified, recognised, asserted or denied, or which was inconsistent with its existence;

b) particular instances in which the right or custom was claimed, recognised or exercised, or in which its exercise was disputed. The subject of customs, rights, customary law, etc. is covered in detail later, and for purposes of the question of relevancy, it will suffice here to note from RANTLAL the principle underlying the section:“The cases this section is intended to meet are those in which the right or custom in question is regarded as capable of surviving repeated instances of its assertion and denial, where the transactions may be supposed to have gone on modifying, asserting, denying, creating, recognising, or being inconsistent with its existence, leaving it, after all that has been given in evidence, fair matter for judicial consideration, as to whether the Court should not decree it.”

SIMILAR FACTS EVIDENCE:

The definition Similar facts evidence can only be led if there are similar facts to those under consideration. There has to be substantial connection or similarity of what the person did. The court has a number of questions should ask Is it relevant? Can the offence be proved without similar facts evidence? What other purpose does the evidence serve other than cause prejudice against the accused person?

Section 14 and 15 deal with similar facts evidence. Section 14 and 15. 14.

(1)

Facts showing the existence of any state of mind, such as intention,

knowledge, good faith, negligence, rashness, ill-will or good-will towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling is in issue or relevant. 15. (2)

A fact relevant within the meaning of subsection (1) as showing the

existence of a state of mind must show that the state of mind exists, not generally, but in reference to the particular matter in question. (3)

Where, upon the trial of a person accused of an offence, the previous

commission by the accused of an offence is relevant within the meaning of subsection (1), the previous conviction of such person is also relevant. 1.

Can we infer that something was done by human beings because similar incidents have been occasioned by human beings in the past?

Can we rule out natural

occurrence when something happens because similar things have happened before?

2.

Is it legitimate to infer that the accused person has committed the act under investigation merely because it is shown that he has done similar things in the past?

It is notable that when you are dealing with similar facts, the general principle of law is that it is not legitimate to infer that an accused person committed a particular offence merely because he had committed a similar offence in the past. The reason is because 1. Firstly there is the policy of consideration of fairness to the accused person. 2. Secondly similar facts evidence is evidence that can bring about a lot of prejudice to the accused person. 3. Thirdly the burden that an accused person has when they come to court is that they have to be ready to defend their whole lives. Evidence of similar facts may be led if there is substantial connection between those similar incidents and the one in issue. You cannot lead evidence of fact just to show connection. There has to be substantial connection in similarity in what a person did. The court should ask whether 1. Evidence of similar fact is relevant; 2. The offence can be proved without the similar evidence; 3. There is a purpose that is served by the evidence other than to cause prejudice against the accused person. Evidence of similar fact helps to establish intention and it can also be used to rule out defence such as honest intention. Even then a Judge has discretion to keep away evidence of similar facts if it is prejudicial to the accused person. The locus classica on evidence of similar facts is

Makin V. AG Makin and his wife were charged with murdering a child. It was shown that the child’s mortal remains were found buried in the garden of the Makins. There was no evidence that they had killed the child but there was evidence that the Makins had adopted this child from the parents. There was also evidence that the Makins had also adopted other children who were unrelated to this one. They were being paid after they adopted the children. There was also evidence that the children were never again seen by their parents after being adopted by the Makins. The investigators had found mortal remains of children in gardens of the houses that the Makins had lived in before. The question was, is this evidence of houses and backyards relevant in the trial for the murder of a specific murder. The evidence was admitted though there was not direct evidence to show that the Makins had actually killed the children. There was substantial connection between the activities of the adoption of the other children and the one under investigation. There was striking similarities between the cases and the Makins had the opportunity to murder the children but the evidence of their dealings with other children was taken into consideration because of the similarities that the investigators had found. In that case, 2 basic principles were established and reiterated in the case of John Makindi V. R. The Principles were as follows: 1. You cannot lead similar facts evidence merely to show the accused disposition to commit an offence. Lord Herschell states as follows “It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct/character to have committed the offence for which he is being tried.” Disposition should not be motivation for leading similar facts evidence.

2. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental or to rebut a defence which would otherwise be open to the accused. Essentially the Makin case established parameters for admitting evidence of similar facts. Similar facts evidence cannot just be used to show disposition. The second proposition delimiting evidence of similar facts is found in S. 15 of the Evidence Act 15. When there is a question whether an act was accidental or intentional, or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant. After Makin the question arose as to whether the prosecution would have to wait until a defence arose or could they wait to admit similar facts evidence. After Makin the question arose as to whether the prosecution had to wait until a defence arose to raise similar fact evidence or could they raise it to prevent the accused from even thinking of raising a defence.

Had Lord Herschell only given direction on which subsequent courts could built on and in Harris V DPP AC. 394 Viscount Simmons settled the matter . “It was an error to draw a closed list of circumstances of when similar facts evidence was admissible. He dispelled the notion that Lord Herschell one did not have to wait until the accused person raised a defence of accused or mistake for one to bring up the defence before introducing such evidence.

Lord Herschell only gave instances when similar facts evidence could be raised.

Mohammed Said Akraby v. R. [1956] Vol. 23 EACA 512 It was held in this case that even though the prosecution did not have to wait until the accused raised a defence; the judge had discretion to exclude similar facts evidence if its probative value was out weighed by the prejudicial effect. It was always going to be a balancing act what purpose does the evidence serve other than cause prejudice.

Noor Mohammed v. R. [1937] Vol. 4 E.A.C.A The accused was charged with murdering his wife by poisoning. There was no evidence that he had administered the poison but prosecution sought to adduce evidence that the accused had had another wife who died as a result of poisoning in circumstances which suggested that the accused had lured the wife into taking poison as a cure for a toothache. The accused was convicted but on Appeal, the Appeal was allowed on the grounds that evidence admitted by the trial judge was very prejudicial to the accused person. In the words of the court, the probative value was outweighed by the prejudicial effect even though the evidence was technically admissible.

Similar facts evidence must have strong probative value weighed against prejudice. R v. Scarrot [1978] 1 AER 672 Discussing further probative value versus prejudicial effect, Lord Scarman stated in this case: “Such probative value is not provided by mere repetition of similar facts. There has to be some features in the evidence sought to be adduced which provided an underlying link. The existence of such a link is not to be inferred from mere similarity of facts which are

themselves so common place that they can provide no sure ground for saying that they point to the commission by the accused of the offence under consideration.” Evidence of similar facts has to have its own persuasive value and not to just have probative value it just not depend on coincidence. Admissible similar facts evidence falls into 3 categories which depend on what it is directed towards. 1.

Similar facts evidence to establish state of mind with which some act proved to have been done was done i.e. what motivated the act;

2.

Similar facts evidence to prove the identity of the perpetrator or doer of an act;

3.

Similar facts evidence to establish the commission of the act itself and therefore rule out an act of nature or miracle.

Firstly the question of similar facts evidence to establish state of mind – the accused may admit that he committed an act but his state of mind is not discernible. Looking at the evidence it is overwhelming that the accused committed the crime but it is not clear what his state of mind was. Under this circumstance it may be the case that he had no intention to do what he did. E.g. a person could have killed a human being but the case could be that he killed the human being thinking it to be an animal. If the accused person had done similar actions where the state of mind was clear, then it can be inferred that the present act was done with the same state of mind as the previous ones. If however the state of mind in previous actions is unclear, the very nature of those acts conceded along with the present one may lead to an inference as to what the state of mind was. For instance if a student was to be caught during the exams copying from the Evidence Act and in defence says that he did not know that he was wrong to copy from the Act, if there is evidence that such a student has been previously caught in another subject doing the same and has been

reprimanded for it, then the evidence would go to show that he is not innocent, the Evidence can be used to infer. R . V. Francis Francis was charged with attempting to obtain money from another person by presenting a certain ring to be a diamond ring. He said that he had no knowledge that the ring he was purporting to sell was not a diamond ring and was worthless. There was evidence that he had previously approached other persons previously who had refused to give him money for the ring when they realised that the ring was not a diamond ring. The question was whether the Evidence of previous transaction with other persons where these people had refused to give him money for the ring by realising that the ring was worthless relevant. The court held that it was relevant, to rebut the defence of lack of knowledge. The evidence of Francis’s experience with other people was relevant to rebut lack of knowledge.

John Makindi V. R Evidence of similar fact in John Makindi was admitted on the ground that it illustrated the hostility and ill-will between John Makindi and his foster child. On state of mind one of the findings explained the cause of loss of blood and the other evidence showed that he had been previously taken to court and had threatened the child with further beating on account of having sent him to prison.

Similar evidence can be used to show the intention in which an act was

done. You can pin the act on a person because they admitted but you may be unable to establish what the state of their mind was. You use similar fact evidence to illustrate that a person had fraudulent intention.

R V. Armstrong Armstrong was charged with murdering his wife by administering arsenic poison on her. This poison was actually found in his house tied up in packets containing a fatal dose. Armstrong claimed that he used the poison to kill weeds as a gardening aid. There was actually no evidence that he had administered the poison on his wife. The prosecution however sought to lead evidence that a few weeks after Armstrong’s wife’s death he had attempted to murder another man by giving him arsenic poison. The question was whether this evidence was admissible. The defence raised the objection that the evidence was prejudicial and irrelevant. The court held that the evidence was admissible and in the words of Lord Hewart “… The fact that Armstrong was subsequently found not merely in possession of but actually using for a similar deadly purpose the very poison that caused the death of his wife was evidence from which the jury might infer that the poison was not in his possession at the earlier date for an innocent purpose.” R V. Bond [1969] 2 K.B. 389 Dr. Bond was charged with using some instruments on a woman with the intent to procure an abortion. He denied the intent, he said that he was not using the instrument to procure an abortion but the instruments were to examine the woman. The prosecution however sought to lead evidence that the doctor had used the same instruments on another woman occasioning an abortion and the girl on whom he was being accused in using the instruments testified that the doctor had told her words to the effect that he had made dozens of girls happy and could do the same to her. The defence objected to this evidence on the grounds that it was prejudicial and irrelevant but it was admitted on the grounds that it showed the doctor’s intention in purporting to examine the woman and rebutted the doctors’ assertion that he was using it to examine the woman. Achieng’ V. R Achieng’ was a permanent secretary who had an imprest account and was charged with stealing 76,000/- from that account. His defence was that he had no intention to defraud and that he

intended to account for the money but was apprehended prematurely. The prosecution however adduced evidence to the effect that on six previous occasions, Achieng’ had taken money from his imprest account and never accounted for it. The question was whether the evidence of previous occasions was admissible and the court held that it was admissible because it rebutted his defence of intention to account for the money. The Queen V. Harold Whip and Another (1955) 28 KLR The two accused were charged with conspiracy to defraud the City Council. The case for the prosecution was that pursuant to an agreement between the two accused, one of them was a City Council Engineer and the other one an excavator, the 1 st accused, certified payments as due to the 2nd accused firm for the excavation of hard rock which the 1 st accused knew to be greatly in excess of what had been excavated. The 1st accused had therefore caused excessive payment to be made by the City Council to the contractors. The prosecution alleged that this was done fraudulently and that he had not just made an honest mistake in the estimation of the rocks. The prosecution actually brought evidence that there had been a case where the same accused had overestimated the amounts owed to the 2 nd accused an event which had occurred in 1953. The court held that the 1953 transaction rebutted a defence of honest mistake. Essentially showing the state of mind with which he had acted. R V. Mortimer Mortimer was charged with murdering a woman cyclist by knocking her down. He claimed that it was an inevitable accident. The prosecution however adduced evidence that Mortimer had on previous occasions knocked down other female cyclists. It was held that this evidence of the previous incidence was admissible to show that he intended what he z had done. It was not an accident. The n ature of the event as a whole ruled out coincidence and the conclusion was gleaned from looking at the transaction as a whole.

SIMILAR FACTS EVIDENCE TO IDENTIFY THE PERPERTRATOR OR DOER OF AN ACT. Where it is shown that a particular act has been done but nobody knows for sure who did it, if it so happens that other acts of distinctive similarity with the one under consideration have occurred and a particular person has been involved, then an inference may be drawn that he was the doer of the act under consideration. It is notable however that for this inference to be drawn the similarity must be very distinct to ensure propensity on its own should not be used to judge a person. For example if handbags disappear and it is known that they disappear during the break and this time a person is caught walking out with a handbag and then it is discovered that this person never comes back to class after the break a modus operandi is drawn that this person has been taking the handbags and the person has a liking for a particular kind of handbag. Essentially you are looking for similarities.

R V. STRAFFEN: In this case a young girl was found strangled by the roadside and it was clear from examining her that there had been no attempt at sexual assault on her person. Straffen had been seen around the scene of crime but there was no evidence that he was directly or indirectly connected with the murder. It was established as a fact that Straffen had strangled two girls at a different place two months earlier and had also left their bodies by the roadside. It was also clear that there had been no attempt at sexual assault on these girls. Straffen had been committed to a mental hospital for the offence and at the time the girl whose murder was under consideration had been killed; Straffen had escaped from the mental hospital and was at large. When the police went to interview him he said even before he was questioned ‘I did not kill the girl’. He was convicted on the basis of the evidence of the other two girls. Again it was established that he had had the opportunity to murder the girl having escaped from the mental hospital and the fact that he had been seen near the scene he had the opportunity and the propensity was so distinct.

Thompson V. R Thompson had carnal knowledge of two boys and he gave them a date 3 days later. He described the place of the date as a street outside a public toilet. Thompson met the two boys at the appointed hour. On noticing the presence of strangers, Thompson gave the boys some money and asked them to go away. It turned out that these strange persons were police and when they approached Thompson he told them that they had got the wrong man. On being searched Thompson was found in possession of a few bottles of chemicals and a further search of his house yielded photos of naked boys. The judges relied on this evidence and its use as alleged by the boys. The boys said what the chemical had been used for. In the words of the court, being gay had characteristics that were easily recognisable. It elicited a distinct propensity and was therefore a reliable means of identification. Paul Ekai V. R [1981] CAR 115 Paul was charged with the murder of Joy Adamson a famous conservationist. His defence was an alibi (alibi is assertion of not being at the locus quo). Ekai said that he had been in Isiolo staying with his grandmother. The evidence was that on the material night, one of the 3 trunks of boxes in the deceased tent including the one containing the cash box had been forced open by a person using a bar which had been taken from the workshop at the camp. The intruder had escaped using the animal enclosure. The prosecution gave evidence that 3 weeks earlier, there had been a theft at the camp and on that occasion the box containing the cash box had been forced open with the bar taken from the camp workshop. The intruder on that previous occasion had gone out through the animal enclosure. When Paul was apprehended after the murder, he was found in possession of some clothes stolen from the camp on the previous occasion. Paul was the deceased’s worker and he had a good knowledge of the camp and taking all these factors into consideration it was held that the evidence of the previous theft was admissible in attempts to prove the murder because the acts exhibited a distinct modus operandi.

Similar fact evidence can be lead to prove the commission of an act. This applies in situations where it is not clear whether the act was done or it happened miraculously. If it is shown that a similar act has occurred caused by human intervention, this is a good ground for inferring that a particular act was actually done as opposed to it just happening miraculously. This is normally in situations where if you look at the acts in isolation, you can dismiss human act and attribute them to nature but when you look at the acts together you can see they had help. R V. Smith Smith married his first wife. He took out an insurance policy on her life in his favour. He made representation to his personal doctor that his wife was epileptic, a few months later his wife’s dead body was found floating in the bathtub and a few months later the insurance paid. Smith proceeded to marry another woman, took out an insurance policy on her in his favour and made assertions that she was epileptic and she too was found dead in the tub and he proceeded to collect insurance and married yet another one whose body was also found dead. He was charged with murdering wife no. 1 on the basis of the subsequent deaths of wives 2 and 3 in similar circumstances. In the words of the court the coincidence was too fantastic to be credible and this of course ruled out the possibility that the drowning of the women in the bath was an accident. In the words of the court the act was done by human hands and the motive was clear so it was not an act of God.

Makin V. Attorney General The question arose whether the dying of the children adopted by the Makins was coincidental.

R V. BOLL In the Republic V. Boll, Boll stayed with his sister as husband and wife when incest was not an offence and they even had a child together. After parliament made incest an offence, the two were charged for having an incestuous affair, but they continued living together as man and wife. Even after incest had been made an offence, they still continued to live together as man and wife and the question was whether the evidence of the previous cohabitation as man and wife could be used against them. They were convicted of incest because their previous association ruled out innocence of their subsequent association. The logic was that if two people have previously lived as husband and wife, unless they separate to live under separate roofs they continue to live as husband and wife. The burden is on them to rebut this presumption and they were unable to do that.

To summarise similar fact evidence we should look at; Section 16 of the Evidence Act “When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is relevant.” For instance if you are trying to establish whether people had lived as husband and wife if you can show previous cause of dealing where they were living as man and wife that would be admissible. Admission of similar fact evidence is the exception to the general rule and will only be admitted when it has strong probative value.

What is similar fact evidence and when is it admissible? Section 15 and 16 wise sayings of judges and case law.

SIMILAR FACT EVIDENCE 9.

Facts showing state of mind or feeling.

14. 1. Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or good-will towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling is in issue or relevant. 2. A fact relevant within the meaning of sub-section (1) of this section as showing the existence of a state of mind must show that the state of mind exists, not generally, but reference to the particular matter in question. 3. Whereupon, the trial of a person accused of an offence, the previous commission by the accused of an offence is relevant within the meaning of sub-section (1) of this section, the previous conviction of such person is also relevant.

15. When there is question whether an act was accidental or intentional, or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurences, in each of which the person doing the act was concerned, is relevant.

a.

The general principles: Makin’s case The basic principle underlying s.15 were set forth in Makin’s case, [1894] A.C. 57, as

reiterated by Sir Kenneth O’Connor, P in John Makindi v. R., [1961] E.A. 327 (C.A.): “The principles which govern the admissiblity of evidence of similar offences are well known. The leading authority is Makin v Attorney-General for New South Wales ........ where Lord Herschell at p. 65 enunciated two propositions. The first is:‘It is undoubtly not compotent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is boing tried.’ This principle is a deeply rooted and jealousy guarded principle of the law of evidence as conceived in England. ... The Lord Chancellor in Makin’s case went on to enunciate a second proposition:‘On the other hand, the more fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute. This section, slightly revised, was published as Evidence - Admission of Evidence of Similar Offences in Criminal Cases - Makin’s Case as applied in East Africa, 4 East African Law Journel 36, by the author.

“the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be upon to the accused.” b.

Incorporation of the general principles in the Evidence Act. It is important to keep clearly in mind that the second proposition laid down in

Makin’s case is incorporated in s.15 of the Evidence Act, for this has not been clearly stated in any of the cases involved and can cause confusion. Section 15 is not an exception to the rules set forth in s.14, but it rather an application of the general rule and must be read subject to s.14 in so far as evidence of state of mind, e.g. knowledge and intention, is concerned. SARKAR, p. 167. SARKAR on p. 167 sets forth the general principle and the scope of its application as follows:“Evidence of similar facts is admitted to prove knowledge of the fact under consideration, or a party’s intention with respect thereto.

Such evidence is received not because a person

committing one offence is likely to commit another offence of a similar nature, but to show the intention or knowledge of the person accused of the offence and rebut the defence of accident, mistake or innocent intent, etc. Similar facts under this section should be distinguished from these admissible under s.6 as part of the same transaction. In the determination of relevancy under s.15 two things should be considered:1. Before s.15 may be applied there must be a question whether an act was intentional or accidental, or was done with a particular knowledge or intention. Evidence of similar facts need not be admitted unless the defence of accident, mistake or innocent intent, etc., is raised in substance, or if the intention is manifest. Such evidence is admissible

whenever it is necessary to rebut (even by anticipation) a defence of accident or mistake or other innocent conditions of mind.

By the phrase ‘rebut a defence’ it is not meant

that a specific line of defence should be set up before evidence of similar acts may be tendered to overthrow it. So, the prosecution may adduce evidence of criminal acts other than those charged without waiting for the accused to set up a specific defence calling for rebuttal, and evidence of similar acts, e.g. to show intention or to rebut a possible defence of accident may be admitted. But though such evidence is strictly admissible, the judge has a discretion to exclude it, if it merely tends to deepen suspicion against the accused and its prejudicial effect is out of preportion to its probative value ..... 1. The other important thing to remember is that s.15 does not apply unless it is sought to be proved that the act forms part of a series of similar occurences. The section is of no assistance unless it is established that the act forms a part of a series of similar occurences.” Therefore, before evidence of the commission of a previous offence committed by the accused is admissible in evidence under the provisions of s.15, there must be either:1. a question raised as to whether the act with which the accused is charged was intentional or accidental, or done with a particular knowledge or intention (indicating that this defence will be presented), or 1. a defence such as honest intention, honest mistake or accident which is open to the accused. c.

How may the question in (1) above arise? In most instances it would appear that the question is first raised prior to the trial,

for example in statements made to the police during investigation of the offence, although the matter may also be raised during the course of the trial, either through cross examination of the prosecution witnesses or during the course of the defence case. An example of the former instance is Mohamed Saeed Akrabi v R., (1956), 23 E.A.C. 512, in

which a Headmaster in a school was charged on two accounts of the use of criminal force to outrage modesty in his actions concerning two students. There was no corroboration of their evidence. The prosectuion called three other boys from the same Form in the school as the complainants, who gave evidence that the defendant had on previous occassions done exactly the same to them as he was alleged to have done to the complainants.

The

magistrate admitted the evidence under ss.14 and 15 to show criminal intent. On appeal the Court said:“... although the appellant’s defence at the trial was a complete denial of the acts alleged against him, certain statements made by him when first confronted with the boys indicated that he might set up a defence of accident or mistake. Galcel and Lufti first complained to their Form master Ali Baquir, and they were followed by the other three boys who gave evidence of similar incidents. Ali Baquir then informed the appellant who said that the boys were liars. But later in the day when the boys were separately called before the apellant in the presence of Ali Baquir, the appellant did not categorically deny the allegations but used such expressions as ‘what you have in your mind is only suspicion’, ‘You have got the wrong impression’, and ‘You have made a problem out of nonsense’.

From the use of such

expression it was reasonable to conclude that the appellant might be setting a defence of accident or mistake; for instance that, while admitting he took the boys’ hand and that they came into contact with his penis, such contact was accidental and without criminal intent. That was not crediting the appellant with a ‘fancy’ defence but with one which there was reasonable cause to believe might be raised, and the evidence of the other offences was admissible raised, and the evidence of the other offences was admissible to rebut that defence and to show that the acts were committed with criminal intent.” (from p. 516). An example of a defence of honest intention or mistake open to the accused - (2) above - again raised in statements made prior to the commencement of the trial is R. V. Harold Whipp and Chaudhary Mohammed Sharrif, (1955), 288 K.L.R. 243, in which the case for the prosecution was that in pursuance of an agreement between the two accused, the first accused certified payments as due to the second accused’s firm for the excavation of hard rock, which he knew to be greatly in excess of the amount which had really been

excavated, and thereby procured excessive payments to be made by the City Council to the contractors. The prosecution alleged that this was done fraudulently and not as a result of honest mistake in estimation by accused No. 1 in discussing the admissibility of other transactions not charged, the Court said:“So far as can be gathered from his statements to the police, the defence of the first accused may be that he had an innocent intention and made mistakes because (1) the estimation of rock was difficult in that it had often to be done after the trench was back-filled, perhaps with the rock on top of the filling, there was no efficient supervision and the quantities were necessarily a very rough estimate; accordingly while he may have been negligent he was not fraudulent; and (2) that ‘lenient’ estimation of rock was made by him to compensate the contractors for unduly low rates. I think that the evidence regarding the 1955 payment certificate would be admissible to rebut the defence fore-shadowed in (1) above - a defence of mistake and innocent intention”. After discussing a line of English cases dealing specifically with fraud, rather similar to s.15, the Court again said:“Evidence of the 1955 transactions would, I think, be admissible under this line of cases specifically dealing with fraud but I prefer to rest my decision on the principle that the evidence would be admissible to show intention and system and to rebut a defence open to the accused of innocent intention and accident.” d.

Evidence of both previous and subsequent events may be relevant to prove state of mind. See R. v Harold Whipp and Chaudhray Mohamed where a subsequent act, ie (one

which occured in 1955, was held relevant in a criminal case where the charge concerned acts done in 1953.

e.

When may evidence of the commission of previous offences be tendered by the prosecution? Once there are indications, either before or during the course of the trial, that the

accused may or will put forth one of the defence noted in b(1) or (2) above, the prosecution may tender the evidence. The rule was summarised by Viscount Simon in Harris v D.P.P., [1952] A.C. 694, quoted in Mohammed Saeed Akrabi v R. (1956), 23 E.A.C.A. 512, 515, 516 as follows:“The substance of the matter appears to me to be that the prosecution may adduce all proper evidence which tends to prove the charge. I do not understand Lord Herschall’s words (in Makin’s case) to mean that the prosecution must withhold such evidence until after the accused has set up a specific defence which calls for rebuttal. Where, for instance, mens rea is an essential element in guilt, and the facts of the occurrence which is the subject of the charge, standing by themselves, would be consistent with mere accident, there would be nothing wrong in the prosecution seeking to establish the true situation by offering, as part of its case in the first instance, evidence of similar action by the accused at another time which would go to show that he intended to do what he did on the occasion charged and was thus acting criminally. R. v. Mortimer is a good example of this. What Lord Summer meant when he denied the right of the prosecution to ‘credit the accused with fancy defences’ was that the evidence of similar facts involving the accused ought not to be dragged in to his prejudice withour reasonable cause.” In John Makindi v R. [1961] E.A. 327 (C.A.), there was a question as to when the evidence tendered showing the commission of previous offences could have been admitted if it were, in fact, admissible. The court there also cited Harris v D.P.P., above and R. V. Hall, [1952]1 AII E.R. 702, and noted that, if admissible, the evidence could have been admitted in anticipation of an expected defence, and empharised that:“As soon as it becomes clear that the prisoner’s defence is that the facts alleged by the prosecution have an innocent and not a guilty complexion, evidence may be given which

might otherwise be inadmissible, .... The principle applies when it is desired to rebut a defence that the facts alleged by the prosecution have an innocent complexion.” f.

When is s.15 not applicable? If there is no indication that the accused will riase a defence as noted in b(1) or (2)

above, either from statements made prior to the commencement of the trial or from crossexamination of prosecution witnesses, s.15 is not applicable and evidence of the commission of previous offences is not admissible during the prosecution case. X (1936), 25 C.A.R. 125. In Yefesi Kayima v R. (1951), 18 E.A.C.A. 288, the accused was charged with possession of one bottle of bismuth oxide contra the Uganda Penal Code. There was, in evidence given by a prosecution witness and in cross-examination of the accused, a clear suggestion of the commission of another offence other than that for which the accused was being charged. On appeal, the Court, after quoting from Makin’s case, said:“In the instant case, as we have already pointed out, the appellant was not preferring any explanation of his possession of the article in question but was denying that he had ever had possession of it. The introduction therefore of this prejudicial matter cannot be justified on the ground that it was admissible to rebut a defence which had been indicated or would otherwise be open to the appellant.” Perhaps the loading case on ss.14 and 15 is John Makindi v R., [1961] E.A. 327 (C.A) in which the defendant was charged with the severe beating of a small boy to whom he was in loco parentis, which it was alleged caused the boy’s death. During the trial one Petro testified that on the night before his death he had heard the accused cry out, and that the next day the boy was taken to the hospital where he died. Medical evidence indicated that the boy had, at the time of his death, both new and old bruises on his head and body and a fractured arm which was still in plaster, and that the fresh bruises on the head

indicated that there had been a fresh blow causing a fresh haemorrhage which, acting on top of the old haemorrhages, was the immediate cause of death. The defence was that the boy was an epileptic, subject to fits, and that his injures had been caused by falls for which the appellant was not responsible. The prosecution sought to introduce evidence of evidence of previous severe beatings of the deceased by the defendant in order to rebut a defence that the death of the deceased was due to accident caused by epilepsy. The evidence was objected to by counsel for the defence who said that the defendant was not going to raise a defence of accident or mistake or absence of intention; he was going to say that the deceased had been an epileptic, but he was not going to advance the theory as to how or why the deceased met his death; the defendant did not know how the deceased met his death. The sole point on appeal was whether the court was correct in admitting evidence of previous beatings of the deceased by the appellant. In this regard, after discussing the English authorities, the Court said:“In the present case, the prosecution alleged that the death of the deceased had been caused by beatings administered by the appellant. Had the defence at the trial been that the appellant had beaten the deceased, but with an innocent intention, e.g. as correction by one in loco parentis not intended to be excessive, then the second principle in Makin’s case would have apllied. Here, however, the contest was not whether the appellant had beaten the deceased with an innocent intention; but whether the beatings which, according to the prosecution, caused the death of the boy ever took place at all. The appellant at the trial denied that he beat the child on 2nd September, and said that his injuries were due to a fall and ‘his frequent illness’.

In such circumstances the second princple enunciated in Makin’s case was

inapplicable, and the question whether the evidence of previous beatings was admissible or not fell to be decided under the ordinary rules set out in the Indian Evidence Act.” Without a clear indication in the decision that the second proposition in Makin’s case was incorporated in s.15, the last sentence quoted can lead to confusion, and, with

respect, the sentence might better have read, “in the circumstances the second principle enunciated in Makin’s case as incorporated in s.15 of the Evidence Act was inapplicable, and the question whether the evidence of previous beatings was admissible or not fell to be decided under the rules set out in other sections of the Indian Evidence Act”. g.

After a ruling that s.15 is not applicable, the Court may lack to other sections of the Evidence Act to determine admissiblity. Makindi’s case is an excellent example of determining admissibility of evidence

under sections other than the one originally advanced by Counsel.

Here the court

determined that evidence of the previous beating was, in fact, admissible under the provisions of ss.5, 8 and 14 I.E.A., though not admissible under s.15. h.

Section 14 applied alone. Mosts cases reported involve both ss.14 and 15 where the evidence shows the

intention of the accused (s.14) and is also used to rebut a defence of accident or mistake (s.15). R v Douglas Alan Godfrey, (1947), 22 K.L.R. 44, however, deals only with s.14, but the decision unfortunately does not clearly indicate that both subs (1) and (3) are involved. Here the accused was charged with careless or dangerous driving under the Traffic Ordinance, and evidence was adduced that he had consumed a certain amount of alcohol during a certain period. Defence Counsel argued (presumably under subs. (3) that, where in a traffic offence case there is no allegation of drunkenness or impairment of efficiency due to drink, any evidence which is directed to show the amount of alcohol consumed before the commission of the offence alleged or the condition of the accused at the time, is inadmissible and he cited Makin’s case. The Court said:“We think this is placing the matter too high. Evidence that a man has consumed a certain maount of alcoholo during a certain period is not evidence that he has committed some other crime with which he is not charged, but is evidence tending to show this probable mental and

physical condition as a subsequent time when such considerations may be highly relevant on the issue as to whether a person has exercised due and proper care. In such a case we think that section 14 of the Indian Evidence Act clearly applies and that such evidence is admissible.” In effect, the Court said that this evidence did not show commission of a previous offence under subs.(3), but only fell under subs.(1) as showing “the existence of any state of body or bodily feeling”, but was therefore still relevant since this state was in issue and relevant. I.

Guidelines for determining admissibility of evidence of commission of previous offences or convictions under ss. 14 and 15 Owing to the extremely wide range of ccumstances under which the evidence might

be tendered, it is difficult to set forth a standard procedure, however reference to the following guideliness may assist:The prosecution tenders, by testimony or otherwise, evidence of the commission of a previous offence o conviction. There is objection by opposing counsel, or the Court requires of the prosecution the grounds on which it feels the evidence is admissible. If the prosecution indicates that the accused has, or is expected to raise a defence of honest intention, mistake or accident and that the commission of the previous offence referred to formed part of a series, in each of which the person doing the act was concerned, the evidence is provisionally admissible under s.15: A. if the accused has pleaded not guilty, there should be evidence on the case record, e.g. evidence of earlier statements by the accused which indicate that the defence in (3) has already been raised by the accused, or the prosecution should indicate that this evidence will be forthcoming at a later stage.

B. If at the conclusion of the case no such evidence has been presented and the accused has not relied upon the defence, the evidence, personally admitted, is excluded from consideration. 4. If the accused has pleaded not guilty and there are no grounds for belief that he will raise the defence, the evidence will not be admitted unless the accused’s actual defence is that the facts alleged by the prosecution have an innocent and not a guilty complexion, in which case the evidence is admissible at that time in rebuttal. 5. The evidence, if admitted under s.15, the Court should then determine whether the evidence is admissible under some other sections of the Act; e.g. ss.5, 8 or 14. 7. If the evidence is admitted under s.14, the commission of the previous offence or conviction is admissible only to show the existence of a state of mind such as intention, etc or to show the existence of a state of body or bodily feeling when the existence of such state is in issue or relevant. 8. It is good practice for arguments for and against the admission of the evidence and the Court’s ruling and reasons therefore to appear on the case record. 9. The following rule of practice as set forth in Makindu’s case as p.333) should be noted:‘It is right to add, however, that in all such cases the judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial, having regard to the purpose to which it is professedly directed, to make it desirable in the interests of justice that it should be admitted. If, so far as that purpose is concerned, it can in the circumstances of the case have only trifling weight, the judge will be right to exclude it. To say this is not to confuse weight with admissibility. To say this is not to confuse weight with admissiblity. The distinction is plain, but cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible. The decision must then be left to the discretion and the sence of fairness of the judge.” Facts showing course of business

16. When there is a question whether a particular act was done, the existence of any course of business, according to which it would naturally have been done, is relevant. SARKAR on p. 175 says:“... In well-established offices or firms, books are kept or business is conducted on such settled lines and principles that when the doing of a particular act comes in question, it may be reaspnably inferred that the unifomity of the general course was followed in the particular case. When the course of business usually followed is proved the probability is that there was no departure from the common course of business in the particular transaction. In the case of public offices like the post office, where work is carried on with almost mechanical regularity, the probability becomes stronger that the letter was despatched in due course or reached destination.” Examples:a) The question is, whethere a particular letter was despatched. The facts that it was the ordinary course of business for all letters to be put in a certain place to be carried to the post, and that that particular letter was put in that place, are relevant. b) The question is, whether a particular letter reached A. The facts that it was posted in due course, and was not returned through the Dead-Letter Office, are relevant. Section 16 covers the question of the relevancy of facts showing the course of business, but the question of “course of business” is also covered under the subject of presumptions, and in s.33(b), statements by persons who cannot be called as witnesses, made in the course of business, and discussion of cases is deferred until consideration of those subjects.

BURDEN OF PROOF What is burden of proof?

The term burden of proof draws from the Latin Phrase Onus

Probandi and when we talk of burden we sometimes talk of onus. Burden of Proof is used to mean an obligation to adduce evidence of a fact. According to Phipson on the Law of Evidence, the term burden of proof has two distinct meanings 1.

Obligation on a party to convince the tribunal on a fact; here we are talking of the obligation of a party to persuade a tribunal to come into ones way of thinking. The persuasion would be to get the tribunal to believe whatever proposition the party is making. That proposition of fact has to be a fact in issue. One that will be critical to the party with the obligation. The penalty that one suffers if they fail to proof their burden of proof is that they will fail, they will not get whatever judgment they require and if plaintiff they will not sustain a conviction and if defendant no relief. There will be a burden to persuade on each fact and maybe the matter that you failed to persuade on is not critical to the whole matter so you can still win.

2.

The obligation to adduce sufficient evidence of a particular fact. The reason that one seeks to adduce sufficient evidence of a fact is to justify a finding of a particular

matter. This is the evidential burden of proof. The person that will have the legal burden of proof will almost always have the burden of adducing evidence. Section 107 of Evidence Act Defines Burden of Proof – Of essence to burden of proof is proving the matter in court. (2) Refers to the legal burden of proof. S. 109. – Specifically exemplifies the Rule in S. 107 and it talks about proof of a particular fact. It is to the effect that the burden of proof as to any particular fact lies on the person who wishes to rely on its existence. Whoever has the obligation to convince the court is the person said to bear the burden of proof. If you do not discharge the burden of proof then you will not succeed in as far as that fact is concerned. Cases that exemplify Burden of Proof Ryde v. Bushell pg. 8 course outline The defendant was seeking to rely on the defence of act of God and the court held that if a person wished to rely on defence of act of God one has to establish it through aid. Omar Mohiddin V. Sikuthani Pg. 8 Where it is neither readily appreciated nor known that you are married to somebody the burden of proving that you are so married lies on you. The total essence of proof is that the burden is on the one who wishes to prove that they are married 11th Case Course outline

Hakam Bibi v. Mistry Kimani v. Gikanga The principle is that if you want to rely on personal law, you have to establish what that law is. In Kimani a person sought to rely on customary law and if you are relying on customary law you have to establish what the law is. Commissioner of Income Tax v. Baku The principle is the same as in Valabras Shamzi v. Commissioner of Income Tax these two cases establish the principle that if you dispute tax on the basis that it is excessive, the burden of proof is on you. It is not up to the Commissioner to establish that it is excessive but it is in your interest to adduce evidence before the case to determine to what extent it is excessive. If you are the person with a legal obligation to establish a matter then the burden of proof is on you. GENERAL RULE: The general rule is that burden of proof is borne by the Plaintiff in Civil cases and by the Prosecution in Criminal Cases. Joseph Mbithi Maula v. R In this particular case the 1st Appellant was convicted for handling cows stolen by the 2nd Appellant. The trial Magistrate said in the course of his judgment ‘None of the accused disputed the fact that the cows mentioned in the three counts belong to the Respondent owners and they had been stolen from their bomas during the material nights. They did not dispute the identity and ownership of the cows therefore I find all this as facts.’ The High Court affirmed the conviction but the court of Appeal found that the statement of the trial magistrate was a misdirection. In the words of the Court of Appeal it was up to the prosecution to prove that the cows

were stolen. In criminal cases the burden of proof has to be beyond reasonable doubt, having doubt or suspicion is not enough. In the words of the Court of Appeal, the mere fact that the accused kept quiet did not approve of the matters. Alois Nyasinga v. R In that case which was a murder trial, there was evidence that at the time that the appellant committed the offence he was drunk. He had stabbed the deceased the deceased in the neck inflicting him with a fatal wound. The trial judge directed himself and the assessors that it was for the appellant to prove that he was so inebriated as to be unable to form the intent to kill. On appeal, the decision of the first court was reversed by the Court of Appeal who said that the trial court had misdirected itself and the assessors on the matter of intent. The Judge should have explicitly told the assessors that it was not for the Appellant to prove that he was so drunk he could not form intent to kill or hurt the deceased. It was the duty of the prosecution to prove that the Appellant was not so affected as to be incapable of forming intent. even though if a person is trying to establish a defence and one wants the court to excuse them from having done something, say murder and you want to plead self defence, or insanity, while it is incumbent for you to bring the matter before the court, it does not discount the prosecution’s duty to establish the intent. Woolmington v. DPP The accused was charged with the murder of his wife. He gave evidence that he had accidentally shot her. the trial court directed the jury that once it was proved that the accused shot his wife, he bore the burden of disproving malice aforethought (intention). On Appeal to the House of Lords it was stated that the trial court direction was not appropriate, that it was a misdirection, and stated as follows: ‘throughout the web of English criminal law one golden thread is always to be seen. That is the duty of the prosecution to prove the prisoner’s guilt subject to what I have said as to the defence of insanity and subject also to any statutory exception. He continues to say that no matter what the charge or where the trial the principle that the

prosecution must prove the guilt of the prisoner is part of the law of England and no attempt to whittle it down can be entertain.” In Woolmington you will see intimations as exceptions to the general rule.

BURDEN OF PROOF IN CIVIL CASES The principle is that burden of proof in civil cases rests with the plaintiff. Joseph Constantine Steamship Line v. Imperial Smelting Co. Ltd. [1942] A.C 154 In this case the plaintiff; Charterers of a ship claimed damages from the owners for failure to load. The defendants pleaded that the contract had been frustrated by destruction of the ship owing to an explosion the cause of which was unclear. Such frustration would have concluded the case in favour of the defendants in the absence of any fault on their part. The trial court held that the onus of proving or the burden of proving that frustration was induced by the defendant or by their default lay on the plaintiffs. The Court of Appeal reversed this finding holding that it was up to the defendants to establish that the frustration was not induced by their default. The case went to the House of Lords where the Appeal was allowed the House of Lords holding that the burden of proving that there was default on the part of the owners lay upon the plaintiffs. What we are saying that burden of proof by and large in civil cases is going to lie on the plaintiff.

Levison & Another v. Patent Steam Carpet Cleaning Co. [1978] QB 79 The defendants were guilty of unexplained loss of a Chinese carpet which had been delivered to them for cleaning and which belonged to the plaintiff. A clause in the contract signed by the plaintiffs would have exempted the defendants from liability for negligence but not for any fundamental breach. The plaintiff sued the cleaners for loss of carpet. The trial court gave judgment against the cleaners. They appealed and it was held on appeal that in a bailment contract when a bailee seeks to escape liability on the ground that he was not negligent, or that he was excused by an exception or limitation clause, then he must prove what happened to the goods. Having failed to satisfactorily explain the circumstances surrounding the loss of the carpet, the carpet cleaner was liable. Burden of proof is on plaintiff in civil cases. EXCEPTIONS TO THE GENERAL RULE IN CIVIL CASES What are the circumstances you have the burden of proof lying on the respondent? These are provided for in S. 112 which relates to facts within the special knowledge of a party to the proceedings. 1. It is to the effect that if it is alleged that the facts are especially within the knowledge of a party, the burden of proving those will lie on such party. So it may happen that in the course of proceedings, there are certain facts that happen to be within the special knowledge of the respondent and the burden on prove will be on the respondent. The second exception is contained in S. 115 of Evidence Act which relates to disproving apparent special relationship. This section is to the effect that, 2. When there is an apparent relationship between 2 or 3 people, the burden of proving that there is no such relationship is on the person alleging that the relationship does not exist.

For instance if the question is whether there is a party averring that that there is no relationship between for instance a landlord and tenant. S. 116 this relates to disputing ownership. 3. This section is to the effect that when you are shown to be in possession of anything, the burden of proving that you are not the owner of that which you possess will be on the person alleging that you are not the owner. This exception is explained away on the difficulty that one might visit on the people who would be under threat of people coming in and disputing ownership. Section 117 which deals with prove of good faith 4. Where there is a question as to the good faith of a transaction between parties one of whom stands to the other in the position of active confidence, the burden of proving good faith of the transaction is on the person who stands in the position of active confidence in relation to the client.

EXCEPTIONS TO GENERAL RULE IN CRIMINAL CASES The burden of proof lies in the prosecution The constitution in S. 77 2 (a) provides that a person charged with any offence is presumed to be innocent unless he pleads guilty or is proved guilty by the prosecution. This provision imposes burden of proof on the prosecution. It is up to the prosecution to prove the guilt of the accused unless the accused pleads guilty. Where one pleads guilty, there is no contestation. To buttress this presumption is S. 77 (12) (a) nothing in any law shall be construed as being in conflict with S. 77 (2) (a) if the law in question imposes the burden of proof in specific parts on

an accused person. This section saves the statutory provisions that there might impose burden of proof on accused persons on specific facts. What are the instances where specific facts require to be proved by an accused? S. 111 (1) K. E.A. 1. If you are charged with an offence and you are in a position of claiming that you are exempted from liability for that kind of offence, it is your duty to bring the circumstances to the notice of the court. It is incumbent upon you to prove a fact. There is a derogation that the burden of proof in criminal cases lies on the prosecution. For instance if you have diplomatic immunity you must bring it to the attention of the court for the exemption. R. .v, Hunt (1987) 1 ALR 1 The accused was charged with unlawful possession of a prohibited drug. The relevant statute provided that it would not apply to any preparation containing not more than 0.2% of the drug. The defence submitted that there was no case to answer since the prosecution had not adduced evidence as to the percentage of the prohibited substance found on the accused. The defence was overruled and on appeal the court of appeal dismissed the appeal but at the House of Lords it was stated that 1.

A statute can place a burden of proof on an accused person and it can do this either explicitly or implicitly.

2.

A statute may be construed as imposing the burden of proof on an accused person but such a construction depends on the particular legislation.

3.

The statute however cannot be taken to impose the duty on an accused to prove his innocence in a criminal case.

4.

Public policy in this particular case favoured the position that the burden of proof was on the accused person.

The Appeal was allowed. 2.

S. 111 (2) (c) intoxication or insanity 2. The accused bears the burden of proof of intoxication or insanity if an accused person claims that he was so intoxicated as to be insane, he has to prove that but the duty of the accused only goes as far as proving that he was intoxicated and does not go to the level of proving that he could not form an intent.

Godiyana Barongo s/o Rugwire v. R Defence of insanity through intoxication The burden resting upon an accused person when attempting to rebut a natural presumption which must prevail until the contrary is proven will never be the same as that resting upon the prosecution to prove the facts which they have to establish. It will not be higher than the burden which rests on a plaintiff in civil cases. Nyakite s/o Oyugi v. R[1959] In this case the evidence of the defence and the prosecution showed that the accused was intoxicated but the accused did not raise intoxication as a defence. The trial judge said that the burden of raising a defence of intoxication so as to negative intent was on the accused person. On Appeal, it was held that this statement was a misdirection and that the onus of establishing a defence is not on an accused person, if there is evidence of intoxication the court must consider it and determine whether it negative intent. The prosecution has to show that the intoxication was not as high as to negative intent. Nyamweru s/o kinyaboya v. R. (1953)

The appellant was in an advanced state of intoxication when he killed his wife with a knife. He was convicted of murder. On Appeal it was held that whilst the plea of intoxication is a matter for the defence, there can be circumstances pointing to such a condition arising out of the prosecution case. The use of a lethal weapon may indicate a malicious intent but it is not conclusive of an intent to murder. It gave an example where the accused is so drunk that they are not able to form the intent not withstanding the use of a lethal weapon. Malungu s/o Kieti v. R Where the accused was convicted of murder and evidence established that the appellant was drunk by the time he killed. The assessors were of the opinion that the appellant was incapable of forming the intent necessary to constitute the offence of murder but the trial judge took the view that the onus of rebutting the presumption that he was capable of forming the necessary intent to kill was on the appellant. On Appeal it was held that the burden of proving that an accused is capable of forming the intent necessary to constitute the offence of murder always remains on the prosecution. So even when the defence raises the defence of intoxication, the burden of prove is still on the prosecution. R v. Kamau s/o Njoroge R v. Saidi Kabila Kiunga There are other statutes apart from the Evidence Act that place burden of proof on the accused. 1. The Public Order Act which is to the effect that the burden of proving lawful or reasonable excuse or lawful authority is upon the person alleging the same. 2. The Prevention of Corruption Act Cap 65 which provides that any money paid or gift given to a public servant shall be deemed to have been paid or offered corruptly as an inducement or reward unless the contrary is proved. 3. The Immigration Act, which is to the effect that in any proceedings under the Immigration Act if the question in issue is (i)

whether a person is or is not a citizen of Kenya, or

(ii)

whether or not a person is a diplomat or wife of child of such or

(iii)

whether or not any person has been issued or granted a passport, certificate, entry permit, pass, authority or consent under the Act or

(iv)

whether or not any person is at any time entitled to any such issue of right the burden of proof will lie on the person contending that they are so entitled.

4. The Public Health Act, - every person while suffering from a venereal disease in any communicable form or continues in employment in or about any factory shop, hotel, restaurant, house or other place in any capacity entailing the care of children or handling of food of food utensils intended for use of consumption by any person shall be guilty of an offence unless he proves that he did not know or suspect or had no reasonable means of knowing or suspecting that he was so suffering. It is an offence for any person to employ such a person, the defence would be for the employer to prove that they did not know that the employee was sick. 5. Stock and Produce Theft Act – any person who has in his possession any stock reasonably suspected of being stolen or unlawfully obtained shall if he fails to prove to the satisfaction of the court, that he came by the stock lawfully shall be guilty of an offence and liable to conviction. 6. Wildlife Conservation & Management Act – it is an offence to be found with or to be dealing with Game Trophies and the person charged under this Act has the burden of proving lawful possession for dealing with such gain. Those are the exceptions to the general rule that he burden of proof lies on the prosecution. Section 108 E.A incidence of the burden of proof. It lies on that person who would fail if at all …

STANDARD OR DEGREE OF PROOF The question is what level of cogency or conviction should evidence attain before the court can act in favour of the person who bears the burden of proof. In criminal cases when the burden of proof is on the prosecution the standard of proof is beyond reasonable doubt. The question has arisen as to what is reasonable doubt? Miller v. Minister of Pensions [1947] 2 ALL ER In this case Lord Denning tried to explain what reasonable doubt would mean he said ‘the degree is well settled. It need not reach certainty, but it must carry a high degree of probability. He continues ‘proof beyond reasonable doubt does not mean proof beyond a shadow of doubt the law would fail to protect the community if it admitted fanciful probabilities or possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility, in his favour which can be dismissed with a sentence ‘of course it is possible but not in the least probable’, then the case is proved beyond reasonable doubt.’ Lord Denning continues “it must carry a reasonable degree of probability but not as high as is required in criminal cases. If the tribunal can say ‘we think it more probable than not,’ the burden is discharged but if the probabilities are equal, the burden is not discharged. Degree of cogency in burden of proof required is less than in criminal law. Other people have said that reasonable doubt is the doubt of men of good sense not of imbeciles or fools. In criminal cases where the accused bears the burden of proof, we have already stated that the standard of proof is on a balance of probability. The burden of proof in civil matters is on a balance of probabilities. Where you have cases of fraud for instance if the allegation involves criminal conduct, the degree required is going to be higher. There is a spectrum level of degrees.

R.G. Patel v. Lalji Makanji [1957] E.A. 314 The court in this case stated that allegations of fraud must be strictly proved although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities. In a matrimonial offence, there is a variation in the standard of proof. If you are relying on adultery to get your divorce, the standard of proof is beyond reasonable doubt, you have to catch them flagrante delicto. In Wangari Mathai v. Andrew Mathai it was stated that if you are relying on the offence of adultery the court must prove guilt beyond reasonable doubt or so as to feel sure that the guilt had been proved. The Appellant had argued that there was no direct evidence of adultery and on Appeal it was argued that the degree of adultery had not been proved but the decision was upheld. The court relied on circumstantial evidence to find guilt. Maherdavan v. Maherdavan [1964] p233 [1962] 3 ALL ER 617 A ceremony had been celebrated between the parties in Ceylon. Two of the requirements of the local law were solemnisation of the marriage by a registrar, either in his office or in another authorised place and, during the ceremony, an address by the registrar to the parties on the nature of the union. The parties cohabited as if man and wife for a short period of time and the husband acknowledged the wife as such. Seven years after the first ceremony, the husband went through another ceremony of marriage with another woman in England and the validity of the first marriage came into question. According to the marriage certificate, the marriage had been solemnized by a registrar in his office, but the wife gave evidence that the marriage had taken place at her patents house and there was no evidence of the requisite address by the registrar of parties. Rejecting as irrational legal chauvinism an argument of counsel for the husband that there was no presumption in favour of a foreign marriage the establishment of which would invalidate a subsequent English one, Sir, Jocelyn Simon P applied the presumption and held the foreign marriage to be formally valid.

In 1980, T and M were married in London, UK. In 1985, the couple returned to Kenya, whereafter a short stay, M proceeds to USA for post-graduate studies. For 7 years, T does not hear from M. In 1993, T gives up on waiting for Ms’ return. She (T) meets with F and out of a desperate love they get immediately married. Shortly thereafter, T meets with J, an old friend just returned from the USA. J confirms to T that M is living in the US with an American lady. In 1996, T sues F for divorce. In his defence, F asserts that their marriage is a nullity because in 1993, T was still legally married to M. Unfortunately

F

cannot

trace

J

to

testify.

T

has

evidence

that

M

may

have been married previously to A in 1978 and that A is still alive. Advice T and F. The presumption of marriage will arise where there has been a ceremony of marriage which has been subsequently cohabitated. If the parties had capacity to contract a marriage then the law presumes that they are validly married. Presumption of marriage can also be established through ceremony and cohabitation.

The formal validity of a marriage depends upon the lex loci

celebrationis i.e. the law of the place where one purports to have gotten married and failure to comply with the formal requirements of the local law may make a marriage void. Once it is admitted that a marriage was celebrated between 2 persons who intended to marry then the formal validity is presumed to exist.

On advice to T, beginning with the marriage of T and M, it will be presumed that T and M were validly married in London in 1980. The presumption of marriage is a very strong presumption, rebuttable only by strong evidence that will go beyond a mere balance of probability. For instance in the decided case of Piers V. Piers the couple got married in a private dwelling house while the law required as a prerequisite for the validity of such a marriage that a special licence be obtained. The Pierses did not get that kind of licence and when the marriage turned sour, the validity of the marriage was questioned. It was held that the presumption of marriage in favour of the legality of marriage is not to be lightly repelled. The evidence against it or evidence to

rebut it must be strong, distinct, satisfactory and conclusive. The presumption of marriage is not lightly repelled and requires evidence that can satisfy the court beyond reasonable doubt as was held in Mahadervan V. Mahadervan where was held that the court must be satisfied beyond reasonable doubt if a presumption of marriage is to be rebutted. Evidence of a prior marriage may suffice to rebut a presumption of marriage and therefore if T is able to prove that M may have been married previously to A in 1978, this would nullify T’s marriage to M in London. If M had been previously married to A it would mean that the marriage between T and M was a nullity and therefore F cannot assert that T had been legally married to M when they got married and F therefore has to consider giving M her divorce as it would mean that the marriage to M was void and whether M is alive or not, T was legally married to F and was thus entitled to a divorce. T has to have strong evidence of for instance a marriage certificate and corroborating evidence to prove that M had been previously married to A which would make her marriage to M void and her marriage to F legit thereby earning her a divorce from F. In Chard V. Chard (1956) 2 AER 259 parties to a marriage celebrated in 1933 sought decrees of nullity on the grounds that the husband had been through a marriage ceremony in 1909. The first wife in respect of whom there was no evidence of ill health or registration of death was last heard of in 1917 and would be aged 44 in 1933. There were reasons which might have led her not to wish to be heard of by her husband or his family in that between 1917 and 1933 the husband was continually in prison. The question was whether one could presume that she was dead and therefore hold this marriage of 1933 valid. The court held that there was no evidence of a person who would have been likely to have heard of the first wife between 1917 and 1933 and consequently the presumption of death was inapplicable in which case the nullity would not go through but they would have to bring in more evidence. In WANJIKU V. MACHARIA [1968] Wanjiku petitioned for maintenance from Macharia calling to her aid a marriage certificate. The two had gotten married in 1963, stayed together as husband and wife until the relationship turned sour. She had testified on oath that she had been married to another man in 1953 or thereabouts. The court held that they would not presume marriage because all that was required to rebut presumption of marriage by cohabitation was some evidence that leads the court to doubt the validity of marriage. In the words of the court, Wanjiku had no validity of marriage.

F wants his marriage to T declared a nullity on the fact that M who was validly married to T in London in 1978 is not dead since J claims to have seen him living with an American woman in America. Section 118

(a) of The Evidence Act Cap 80 Laws of Kenya states that where it is proved that

a person has not been heard of for seven years by those who might be expected to have heard of him if he were alive, there shall be a rebuttable presumption that he is dead.

For presumption of death to be established, the court will consider whether there are people who would be likely to have heard from the person presumed to be dead in over seven years, and whether they have actually heard from that person and whether all due inquiries have been made as appropriate in a given circumstance. The next thing that the court will want to consider is whether M is still alive and whether he has had communications with people that he ought to be in touch with namely family and relatives or can M be presumed to have died since T had not heard from him in over 7 years. The court will need prove that the people who could have heard from M have not heard or seen M in over 7 years. The court will also need evidence that T has made all efforts to reach M and that M has not been heard from in over 7 years, and that all efforts to reach M have been fruitless. Is the evidence of J that he met M in United States living with another woman credible? Can J be called to give evidence that M is alive and living in the United States with another woman? If J can be found and agree to testify, the Judge may be convinced by J’s evidence not to presume that M is dead so it will depend on the trial Judge. F has to rebut the presumption that his marriage to T is valid with the argument that T was validly married to M who is not dead and who is living in the United States of America with an American woman. To be able to rebut the presumption that M is still alive, F will have to find J who is the last known person to have seen M and who can rebut the presumption that M is dead.

The rebuttal must be cogent and has to be supported by evidence. The court must be satisfied beyond reasonable doubt in order for the presumption to be rebutted. Evidence that T had been married to M and that that marriage is still valid may suffice. F has an uphill task of proving that M is still alive without the evidence of J and will have to look for J to give evidence that M is alive in the United States of America and living with an American woman to rebut the presumption that M can be presumed dead. The outcome will depend on what kind of evidence T has that M could have been married to A before they met and if the evidence is cogent, the marriage between T and m will be nullified as this means that M was already married to A when he met T and the marriage in London to T is therefore invalid. In the absence of evidence from T about M’s prior marriage to A, F will have to find J to give evidence to rebut the presumption of the death of M to prove that his marriage to T was void and therefore a divorce will not be necessary.

THE BURDEN OF PROOF The term “burden of proof” comes from the Latin phrase Onus probandi, hence in practice the terms burden of proof and onus are used interchangeably. 1.

The meaning of burden of proof “The burden of proof has only one primary meaning. It is a metaphorical phrase

indicating an obligation to prove a fact or facts. This obligation necessarily involves the adduction of evidence in an attempt to prove a fact, subject to occasional cases when a fact can be established without evidence. Thus the primary meaing of the burden of proof is an obligation to adduce evidence of a fact. .... In whatever may the phrase may be defined, the obligation is not enforced by any direct sanction. The penalty for failure to fulfil the duty, or to discharge the burden, is the risk of failure in the whole or a part of the litigation.” NOKES, AN INTRODUCTION TO EVIDENCE (4th Edn.), pp. 456-6. Another meaning of “burden of proof is the burden of adducing evidence, or the burden of going forward with the evidence. This distinction may be seen from Art 5 of CROSS AND WILKINS, AN OUTLINE OF THE LAW OF EVIDENCE, p. 26:1. The burden of proof must be distinguished from the burden of adducing evidence. 2. The incidence of the burden of proof (i.e. the question which party bears it) is dependent on the substantive law. At the trial of a civil action, it is borne by the plaintiff on the facts pleaded by him and not admitted by the defendant. At a criminal trial, it is borne by the prosecution on every issue except that of insanity and issues on which the burden of proof is cast on the accused by statute.

3. The burden of adducing evidence is generally borne by the party bearing the burden of proof, but, in criminal cases, the accused bears the burden of adducing evidence in support of many of the defences that would be open to him on the strength of his plea of not guilty. WILSON’S MANUAL OF EVIDENCE (8th Edn.), p. 184 notes the distinction as follows:“The expression ‘burden of proof’ has two meanings which are distinct, but frequently confused. One meaning is the obligation in a party to convince the tribunal of fact (whether by preponderance of evidence or beyond reasonable doubt) of the truth of some preposition of fact which is in issue and which is vital to his case. This obligation may be called ‘the burden of proof on the pleadings. The penalty for failure to discharge this burden is the certainity of failure in the whole or some part of the litigation. The other meaning is the obligation to adduce sufficient evidence on a particular is under the obligation, which may be termed ‘the burden of adducing evidence,’ or ‘the evidential burden’. Failure to discharge the evendential burden carries the risk, but not the certainity, of failure in the whole or some part of the litigation. Success in discharging the obligation shifts the evidential burden onto the opposing party. It will readily be appreciated that it is of crucial importance to determine upon which party rests the burden of proof, in either sense in which that expression is used; and in a case where there is little or no evidence of the facts in issue, the determination of this question may well be decisive of the result of the proceedings.” The law of the burden of proof in Kenya is set forth in ss.115 K.E.A. Included in the subject is the question of submissions, that situation in which certain facts are presumed to be true until the contrary is proven, or which are presumed conclusively to be true. b.

“Prima facie case”

The term prima facie is from the Latin meaning “of first appearance” 9OSBORN), or “at first sight” which come into usage in the late Niddle English period (OXFORD ENGLISH DICTIONARY).

A prima facie case is

based on prima facie evidence.

OSBORN gives a general definition of prima facie case as:“A case in which there is some evidence in support of a charge or allegation made in it, and which will stand unless it is displaced. In a case which is being heard in court, the party starting, that is, upon whom the burden of proof rests, must make out a prima facie, or else the other party will be able to submit that there is no case to answer, and the case will have to be dismissed.” SARKAR on p. 29 says:“Prima facie evidence is evidence which, if accepted, appears to be sufficient to establish a fact unless rebutted by acceptable evidence to the contrary. It is not conclusive.” In a criminal case the legal onus is always on the prosecution to prove its case beyond reasonable doubt. (For one statement only, see Ramanial T. Bhatt v R., ‘[1957] E.A. 332, 334 (C.A). A case proved “beyond reasonable doubt” should not be confused with a prima facie, or a case to answer as provided for in s.211 CP.C. Section 210 C.P.C. as amended by Act No. 13 of 1967 reads:210. If at the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as the prosecutor, the accused person or his advocate may wish to put forward, it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit him. The “case to answer” which must be made out against the accused before s.211 C.P.C. becomes operative and the accused is required to make a defence must be a prima

facie case. See Murimi v R., [1967] E.A. 542, 546 (C.A) where the court, discussing the equivalent provisions of the Tanganyika C.P.C. “The provisions of s.205 are mandatory and if at the close of the prosecution’s case a prima facie has not been made out the accused person is entitled to be acquitted.” c.

When is a prima case established? The leading decision on this question is Ramnlal T. Bhatt v R., [1957] E.A. 332

(C.A). There the appellant, a sub-inspector of police, had been charged on two counts of official corruption. At the trial the magistrate considered that a “fragment of evidence”, namely “Have you got Shs.1,000/=? was not sufficient to justify’ his calling on the defence on thecount of soliciting and though evidence on the second count was strong he though it did not constitute proof of the charge as laid. He therefore discharged the appellant on both counts. The Attorney General appealed to the High Court by way of case stated and obtained an order remitting the case to the same magistrate with a direction to put the appellant on his defence in respect of both counts and to hear and determine the case according to law. At the resumed trial the appellant was convicted. The Court of Appeal, discussing and disagreeing in part with passages from the judgment of WILSON, J in R v. Jagjivan K. Patel and Others, (1948), I.T.L.R 85, said:“Remembering that the legal onues is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one ‘which full consideration might possible be thought sufficient to sustain a conviction’. This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is ‘some evidence, irrespective of its credibility or weight, sufficient toput the accused on his defence’. A mere sointilla of evidence can never be enought: nor can any

amount of worthless discredited evidence. It is true, as WILSON, J said, that the court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively: that final determination can only properly be made when the case for the defence has been heard. It may not be easy to define what is meant by a ‘prima facie’ case but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence” (emphasis added). Bhatt’s case has been quoted and applied in R v. Rootes (Kenya) Ltd. [1958] E.A. 13(K); Remat Nanji Ahmed v. R., [1959] E.A. 804 (p); Wibiro alias Musa v. R [1960] E.A. 184 (C.A.) where the Court at p. 187 clearly stated “It is abundantly clear that ‘a prima facie case’ does not mean a case proved beyond reasonable doubt”, and Murimi v. R [1967] E.A. 542 (C.A.) which also considered the situation where a prima facie case has not been made cut at the close of the prosecution case and the court either calls witnesses in order to establish the case against the accused or calls for the defence, which then calls evidence establishing the built of the accused. See pp. 545-6. BROWN CRIMINAL PROCEDURE IN UGANDA AND KENYA, p.93 summarises the position as follows:“The magistrate does not of courtse have to decide whether the accused is guilty at this stage. He applied his mind in the same way as in a preliminary inquiry. All that he needs to do is decide whether a case is made out sufficiently to require the accused to make his defence. It may be a strong case or it may be a weak case. In cases of doubt as to the weight of the prosecution case, the magistrate is justified in calling upon the accused to make his defence. But there must be a prima facie case. That is to say if there is sufficient evidence upon which the court convict if no explanation is offered by the defence, the magistrate calls upon the accused to make his defence.” d.

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

107. (1) whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. ......................... It has been noted earlier that the penalty for failure to discharge the obligation to prove facts may result in a failure in the whole or part of the litigation. A good example is the case of Damadar Jamnadas v Noor Valji, [1967] E.A. 615 (C.A.), wherein Moneylender made a loan to borrower, which was granted in writing by Guarantor. Borrower failed to repay the loan, and Moneylender sued Guarantor to force him to make good on the security. Section 11 of the Moneylenders Ordinance (Cap 307) provided that no security given by a borrower is enforceable unless a note or memorandum in writing of the contract is made, signed personally by the borrower, and a copy of the contract is made, signed personally by the borrower, and a copy of the contract is delivered or sent to the borrower within 7 days of making the contract. Hard Moneylender failed to produce the required note or memorandum in court and the case was decided in favour of Guarantor. On appeal Moneylender argued that since the defence that the required note or memorandum had not been produced had been raised by Guarantor, he (Guarantor) had the onus of proving that Moneylender had failed to comply with the provisions of s.11 and the onus was not upon him to prove affirmatively that he had, in fact, complied. On appeal it was held that under s.11 the production of the note of memorandum in court was a condition precedent to the enforcement of the contract of security, ie a condition which mut be met before enforcement. Since in this case secondary evidence was not admissible, Moneylender could not give oral evidence concerning the making of the note or memorandum. Thus since s.11 required that Moneylender produce the note in court, the last sentence of s.101 I.E.A. (S.107 k.E.A..) and ss. 102 and 103 (ss. 108 and 109 K.E.A..) clearly placed the burden of proof on Moneylender to prove that the note had been signed and delivered to Borrower, and did not prove this burden on Guarantor. Since the amount

involved was 36,500/= it can be seen that the decision on the question of on whom the burden of proof lay was one of consideratble importance. Incident of the burden of proof. 108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. ................................... Section 108 sets forth the test for determining on whom the burden of proof lies in a particular case. In a criminal case, as noted, the burden lies upon the prosecution to prove its case beyond reasonable doubt. In a civil case, generally the burden of proof lies on the plaintiff, for if no evidence were given for either side, obviously the plaintiff would have no grounds for legal relief. Examples:A. A sues B for possession of an automobile, presently in the possession of B. A alleges that the automobile belongs to him and is only on loan to B. If no evidence is given on either side, the case would be decided in favour of B and the automobile would remain in his possession, hence A has the burden of proof. B. A sues B for money due on a note. B admits that he signed the note, but asserts that it was obtained by fraud in as much as he is illiterate and could not read the note, a fact which he claimes was in the knowledge of A. If no evidence were given on either side, A would succeed, in as much as B has admitted that he signed the note, and the alleged fraud has not been proved by evidence. SARKAR at pp. 873 - 4 notes that the sense of the term “burben of proof” as used in s.108 is the duty of adducing evidence:

“It lies at first on that party who would be unsuccessful if no evidence at all were given on either side. This being the test, this burden of proof cannot remain constant but must shift as soon as he produces evidence which prima facie gives rise to a presumption in his favour. It may be given shift back on him if the rebutting evidence produced by his opponent prependerates. This being the position, the question as to onus of proof is only a rule for deciding on whom the obligation rests of going further, if he wishes to win’. (Jones, s.176). ‘As the proceedings go on, the burden of proof may be shifted from the party on whom it rested at first by his proving facts which raise a presumption in his favour’ (Steph. Art. 95)...” “It is not always easy to determine at what particular point the onus shifts from the plaintiff to the defendant and then back again from the defendant to the plaintiff and then once again from the latter to the former and so on; the more so in contested proceedings as evidence gradually continues to be adduced, but at the conclusion of the trial when the issues come to be judged it has to be seen, whether the initial onus which s.101 casts on the plaintiff have been discharged or not. It would wholly wrong to allow the burden of proof to be shifted by a redundant averment in the pleading or by an incautions acceptance of an issue framed upon that averment. The court ought to consider whether the burden lies in law. The evidence required to shift the burden need not necessarily be direct evidence i.e. oral or documentary evidence or admissions of opposite party; it may comprise circumstantial evidence or presumptions of law or fact. The amount of evidence required to shift the burden of proof depends on the circumstances of each case.” “... The true test of onus in the case of ‘shifting’ has been put thus by LORD HANSWORM, N.R.:‘It appears to me that there can only be sufficient evidence to shift the onus from one side to the other if the evidence is sufficient prima facie to establish the case of the party on whom the onus lies. It is not merely a question of weighing feathers on the one side and of saying that if there were two feathers on one side and one on the other that would be sufficient to shift the onus. What is meant is, that in the first instance the party on whom the onus lies mut

prove his case sufficiently to justify a judgment in his favour if there is no other evidence.’ Stoney v. Eastbourne R. D. Council, 1927, 1 Ch. 367, 397. It can be seen from the above that much will depend upon the pleading in a particular case, not only in determining who will have the burden under s.108, but as to who must first present evidence. For example, in Nanlal Vrajdas v Chunilal Dhanji Mehta, promisory note which the defendant admitted he had made and signed in favour of the plaintiff, but which he alleged was given for an illegal consideration. Having admitted the note, the defendant was called on to begin, and the onus of proving what is alleged was placed on him. Another case illustrative of “shifting” is Fakhruddin Mohammed Ali Affarji v. Ahmedali Abdulhussein Lukmanji, (1946), 13 E.A.C.A. in which involved a claim of money under a mortgage deed which contained 3 recital containing acknowledgment of consideration by the mortgager. The mortgager pleaded that the mortgage deed was a fictitious document and that he had never received money. The mortgagor gave evidence in support of his contention but the mortgager did not, and the suit was dismissed. On appeal it was said that the onus was on the mortgager to establish that the remital in the mortgage deed was incorrect, and that having succeeded in doing so, the onus shifted back to the mortgagee to have the existence of consideration, which he had failed to do. See alsoMulji Jetha Ltd. v. Commissioner of Income Tax, [1966] E.A. 159, 262 (K) where the Court used the following language:“It can be argued to the contrary, that while the overall burden of proof is on the appellant, once it has produced what on its face is a valid and regular declaration of trust and the presumptive or provisional burden of proof

chifts to the respondent to show that the

declaration is inaeffective. This the respondent has failed to do and so the appellant should succeed.” Proof of a particular fact

109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. ............................. This section is an amplification of the general rule in s.107 but deals with the burden of proving particular facts. Thus if the prosecution wishes to prove a case by the isolated fact of an admission made by an accused, or if it wishes to prove that as a fact in addition to independent oral testimony, it must prove it. Similarly, an accused relying on an alibi must prove it, or if lawful excuse is relied upon, as incases involving possession of stolen property when the accused alleges that he innocently purchased the goods from a market or a particular person, the burden of proving such is upon him. Example:A prosecute B for theft, and wishes the court to believe that B admitted the theft to C. A must prove the admission. B wishes the court to believe that, at the time in question, he was elsewhere, he must prove it. Proof of admissibility 110. The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence. ............................... SARKAR on p.877 notes that “This is a roundabout way of saying that no one shall be entitled to give evidence of any fact without first showing that he is legally entitled to do so”. Thus if there are conditions precedent to the admissible of certain kinds of evidence,

as in the case of s.33 K.E.A. statements by persons who cannot be called as witnesses, the requirements for admission of the evidence must be proved before the evidence is admissible. The section should, however, he read in connection with s.144 K.E.A., especially subs.(4) which governs the procedure to be used:(4) If the admissibility of one alleged fact depends upon another alleged fact being first proved, the court may, in its discretion, either permit evidence of the first fact to be given the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact. Thus while the order of introduction of fact A and fact B is in the discretion of the magistrate, whether fact B will be admitted in evidence still depends upon fact A being admitted, and the person wishing to introduce fact B has the burden of proving fact A. In Commissioner of Customs v S.K. Panachand, [1961] E.A. 303 (ed.), the company imported some blankets, allegedly from West Germany, to import licence was required for goods from West Germany, although a licence was required for goods from other countries. The Customs seized the blankets acting on information that they, in fact, had come from East Germany. The Company, seeking to return of the blankets, in order to support its case produced two documents, an invoice, and a document signed by a Mr. Blok in which it was stated that the invoice, on which appeared the words “Country of Origin - Wes Germany” was correct. The Company claimed that these documents satisfied the burden placed upon it by the Customs Act, i.e to prove the country of origin of the blankets. The decision involved s.32(b) I.E.A (s.33(b) K.E.A), covering cases where the attendance of a witness cannot be procured without unreasonable delay and expense, subs(b) dealing with statements or documents made in the ordinary course of business. The main issue was whether the invoice and document signed by Mr. Blok were admissible is evidence to prove country of origin.

The Court held basically that the “any person” who will “give evidence of any other fact” in this case, as set forth ins.110 I.E.A was Mr. Blok, who, by means of his signed document would give evidence of the “other fact”, i.e. that the blankets came from West Germany. Before Mr. Blok could “give evidence “through the media of the documents, s.110 placed the burden upon the Company proving:a) that Mr. Blok’s attendance at the trial could not be procured without unreasonable delay or expense, b) that Mr. Block’s signed document was used in the course of business, and c) that the document was actually signed by Mr. Blok, the person whose attendance it was unreasonable to procure. Since the Company had failed to meet its burden of proving these conditions precedent to the admission of the documents they were held not admissible in evidence and the Court ordered condemnation of the blankets. e. Cases illustrating the application of rules on the burden of proof The following cases are illustrative of the application of the rules regarding the burden of proof. Those cases involving legislation should be treated with caution owing to the possibility of repeal or amendment of the sections noted. Act of God L. Besson v Esaji Allibhoy, (1906), 2 E.A.L.R. 8.

Where the loss of ship is

apparently due to an Act of God the onus of proof of negligence is on the person so contending.

Ryde v Bushell, [1967] E.A 817 (C.A.). Breach of covenant to plant coffee. “It is for the person setting up the plear of act of God to prove the various facts which constitute an Act of God@. (p.820) Appeal Shaw v R. [1963] E.A. 400 (U). On appeal against a conviction on ground of misdirection as to the facts, the onus is on the appellant to show that the findings are unreasonable and cannot be supported having regard to the evidence. Bankruptcy Patel v Uganda, [1966] E.A. 311 (C.A). Appellant was charged with failing to keep proper books of account within a period of three years prior to the date of the presentation of a bankruptcy petition contrary to s.140(1) of the Bankruptcy Act (Cap.71) of Uganda. It was conceded that during the material period proper books had not been kept and the sole question which arose for consideration was whether the ommission to keep proper books came within the proviso of s.140(1) which provides that such omission shall not be an offence if it is hones and excusable. Held, the onus was on the sccused to show on the balance of probabilities that the failure to keep proper books was excusable.

Bills of Exchange Fakhri Stores Ltd vs London Confirmers Ltd., [1965] E.A 159 (e.d).

Bills of

Exchange Act (Cap.27) of Kenya, s.64(1). Held that the onus is on a plaintiff suing on bills of exchange which have patently been altered in a material respect to prove that the defendant was privy to the alteration.

Raishi Mezhji Dhanani v Amratlal Hirchand Ltd., (1953), 26 K.L.R. 18. Endorsement in blank on a bill of exchange stroked out. Necessity of specifically pleading defence of lack of endorement. Bills of Exchange Ord. (Cap. 291) of Kenya. Burden of proof on defence to establish that the endorsement had been cancelled before negotiation made the plaintiff firm. Bulk Sales Ramsanali v Madhanji & Bros. and Another, (1952), 7 U.L.R. 37. The onus of proving a sale was not in contravention of the Bulk Sales Ordinance lies on the purchaser. The onus of proving that the person seeking to set aside a sale under the Ordinance was a creditor prior to the sale lies on that person. Common Calamity Admin-General v Khalifan bin ElBattashy, [1963] E.A. 230, 231 (z). When two individuals perish in a common calamity and the question arises as to who died first, in the absence of evidence on the point, there is no presumption that the younger survived the elder. Such a question is always from first to last a pure question of fact of the onus probandi lying on the party who asserts the affirmative. Consideration Santa Singh v M. Thakar Singh, (1934), 1 E.A.C.A. 137. Where holder of a note with interest at 3% signed a document to the effect that he would charge the borrower interest at only 11/2, the onus of proving want of consideration for the document was on the holder of the note. Fakhruddin Mohamedali Jafferji v Ahmedali Abdulhussein Lukmanji, (1945), 13 E.A.C.A 77.

Claim on money under a mortgage deed.

Recital in deed containing

acknowledgement of consideration. Held, that the onus was on the mortgagor to establish

that the recital was incorrect and that having succeeded in doing so, the onus shifted back to the mortgagee to prove the existence of consideration. Contract

Re Shariff Fazal Essa, (1909), 1 Z.L.R. 268. Wagering contract. S.30 Zanz. Contract Decree, corresponding to s.30 Indian Contract Act. Semble, the onus of proof does not rest on the person alleging that the contract is a wager. Walji Jetha Kanji v Elias Freed, [1959] E.A. 1071 (C.A).

Appellants sued

respondents for money due under a building contract, and for additional work. Respondent’s defence was that building work was not completed to his satisfaction, and counterclaim for loss of rent due to delay in completion and defective work. Held, the onus was on the appellants to establish the amount to which they were entitled under the contract and this they had failed to do, and that appellants also had the onus to show that they were not responsible for defect in concrete work on the canopies. Customary and personal law In re: Hassanhali Jadayji (1941), 1 T.L.R. (R) 729. Where one contends that there is a “special custom recognized and adopted by the deceased’s co-religionists” governing succession, the onus of proof is on the person so contending. Omar Mohidin v Sikuthani, (1914), 2 U.L.R. 91. Appellant sought declaration that he was legally married to the respondent by Mohammedan rites. Held, that the onus of proof of such marriage was upon the appellant. Pazi v Mohamed, [1968] E.A 111, 113(T).

There being evidence of ontinual

cohabitation as husband and wife sufficient to raise the presumption of marriage in Islamic

Law, the onus was on the respondent to produce evidence to show that there was, in fact, no marriage between the persons. Hakam Bibi v Mistry Fateh Mahommed, (1955), 28 K.L.R.. 91. The onus of proving personal law in a matrimonial cause is on the person seeking to satisfy the court that the personal law should be applied. Kimani v Gikanga, [1965] E.A. 735 (C.A). The onus of establishing customary law is on the party relying on it. Nyamgunda v Kihwili, [1967] E.A. 212 (T). Paternity; customary law in Tanganyika Primary Courts prevails over I.E.A and English cases, with the burden of proving innocence upon the defendant once the girl has named him as father of the child. Mtoro bin Mwamba v Attorney-General, (1953), 20 .E.A.C.A. 108. Where it is alleged that a particular tribe has a different law and custom from the permissive occupational right generally recognized by tribes in East Africa, recognized on individual right of ownership equivalent to frecheld tenure as know to English Law, the onus of proof is upon the person who so alleges. Damages Said bin Sultan bin Mchamed el Subhi v Jokha binti Sultan bin Salum el Miskiria, (1955), 22 E.A.C.A. 273. Except where the quantum of damages is conceded and the only issue is that of liability, the question of the amount of damages is always in issue, and is a matter for proof by the plaintiff. Defence raised Choitram v H.G Dadlani, [1958] E.A. 641 (C.A.). Action for account. Defence that vouchers destroyed by plaintiff’s agent. Held, the burden of proving that the respondent

was liable to account lay on the appellants, and they had discharged that burden; the onus then rested on the respondent to show, if he could, that he was released from his liability by certin actions of the appellants. Detinue Amritlal Hansraj Sheth v Nathwani, [1960] E.A. 447 (C.A.). Held, that the trial judge was justified in rejecting evidence of both parties and therefore was right in holding that the case fell to be determine on the basis of the burden of proof. In cases of detinue, where the ownership of the plaintiff is admitted and possession has lawfully be acquired by the defendant, and where the dispute is upon the immediate right to possession, the burden of proving an immediate right to possession lies on the plaintiff. Divorce Mallinson v Mallinson, [1961] E.A. 185 (C.A.). Desertion; husband employed away from matrimonial home; wife refused to join husband. Hold, that the burden of proof, which is heavier than in an ordinary civil actopm, lay on the husband, and the evidence here fell short of establishing an animus deserendi on the part of the wife. See also: Campbell MoNeili v Ruth MoNeill, (1952), 19. E.A.C.A. 89; Stjernholm v Stjernholm, (1955), 28 K.L.R 183. For burden of proof on allegation of impotence, see A v B., (1932): 14 K.L.R 109. (Note: the above cases are illustrative only and are in no way intended to be a complete collection of situations concerning matrimonial causes).

Document The Uganda Native Trading Co. Ltd vs Aguste Muwemba, (1956), 23 E.A.C.A. 62. The onus of proving the effectiveness and validity of a document is upon the party relying on it.

Mocsaji Tayabali v Suleman bin Nassor bin Khelef, (1942), 9 E.A.C.A 29. Held, that evidence to vary the plaint meaning of a deed of sale formally drawn by a lawyer should be clear and unequivocal. Where a document on its face and in its terms if clearly and admittedly a deed

of sale and not a mortgage and where it had been held that the

surrounding circumstances do not vary the plain language of the document, a heavy onus rests upon a person to override the plaint and accepted meaning of the document and the oral evidence must be strong and certain to be of any use. Domicil Santhumayor v Santhumayor, [1959] E.A. 204 (U). Abandonment of domicil of origin, acquiring fresh domicil. Held, the burden of proving a change from the domicil of origin to a domicil of choice is not light, and taking all the factors into consideration the petitioner had failed to prove that he had acquired a Uganda domicil with that “perfect clearness” which English cases prescribe as necessary before a court can accept that the domicil of origin has been lost. See also on comicil: Taylor v Taylor and Ueberueck, (1941), 1 T.L.R. (R) 737, on appeal, (1944), 11E.A.C.A 46; Zimbler v Zimbler, (1948), 15 E.A.C.A 10 (As in the case of divorce, cases noted are illustrative only and are not intended to comprise a complete selection). It should be further noted that the Report of the Commission on the Law of Marriage and Divorce contains a Appendix VI a draft Bill to declare and amend the law relating to domicil in Kenya, and domicil as it affects the right to invoke the jurisdiction of courts in matrimonial causes (divorce, separation, declaratory decrees, maintenance, custody and children and other matrimonial relief) is found in s.87 of the draft Bill for the Law of Matrimony Act, proposed by the Commission, Appendix VIII of the Report. Elections

Mbowe v Eliufoo, [1967] E.A 240(T). Under the National Assembly (Elections) Act, 1964, s.99 (T), the burden of proof lay on an unsuccessful candidate in an election seeking an order that the election was null and void. Forgery Nadhan Singh v Pritam Singh, (1954), 21 E.A.C.A. 82. In a suit on a promissory note the respondent as administrator of a deceased person, denied that a signature on the note was that of the deceased.

At the beginning of the trial the counsel for the

plaintiff/appellant submitted that as the only defence was one of forgery, the defendant should begin.

Held, whilst in a suit on a promissory note thater is a prima facie

presumption that it was executed by the person whose signature appears thereon, when its execution by that person is specifically denied, the onus lies on the person suing on the note to prove its due execution. Fraud R.G. Patel v Lalji Makanji, [1957] E.A 314 (C.A.). Civil case, allegations of fraud. From p. 317: “Allegations of fraud must be strictly proved: although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required”. The Uganda Native Trading Company Ltd. v. Aguste Muwemba, (1956),

23

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

Petro Sonko and Another v H.A.D.B. Patel and Another, (1953), 20 E.A.C.A 99. The onus is upon a judgement creditor seeking to garnishee a sum of money to prove that it is due and recoverable. Insurance Kanti Ltd v British Traders (I.) Ltd., [1965] E.A. 108 (C.A). Claim for damage to insured articles under an all risks insurance clause. The onus is on the plaintiff to prove casualty, and the manner in which such onus can be discharged. Held here that as damage from an inherent vice was damage from an excepted risk, it the respondent company could have shown that the damage was directly caused by inadequate packing it would have been entitled to judgement; this was precisely what the respondent company sought to do before the trial magistrate, but on the balance of probabilities was rejected. Shah v South Brit. Ins. Co. Ltd., [1965] E.A 679 (C.A.).

Insurance aganist

housebreaking. Held, an assured need only prove that loss was caused by some event covered by the policy, but if his case is that the loss was caused by a breaking in or a breaking out then his evidence must prove it, which the appellants here had failed to do. The South British Insurance Co. Ltd. v. Mohamed G. Dharsi and Another, (1055), 22 E.A.C.A. 98. Held, the onuse of proving a vessel is a total loss (either an actual or constructive total loss), is upon the person so alleging, and in the instant case the breaking up of the vessel, i.e. its total loss, was not due to the perils of the sea. Landlord and Tenant Mohamed Abdulla Jhetam v Hassan Mian Jhetam and Others, (1952), 25 K.L.R. 114.

Landlord appealed against decision of Central Rent Control Board making a

conditional eviction order on grounds ..... that the tenant was out of occupation and had not proved his intention to return, and was therefore not entitled to the protection of the

Ordinance. Held, that where a tenant was out of occupation for a sufficient time the burden shifted upon him to rebut the presumption of cesser of possession. Kamrudin Esmail Rajwani v Govindji Kalidas Degamwala, (1950), 17 E.A.C.A 37. Agreement not identifiying the portion of a shop “let” to respondent, the appellant permitted the respondent to share a shop with him without any regard for a dividing line. Plaint for ejectment. Held that the onus of proof that there was a letting of a particular portion was clearly upon the respondent, and there being no “letting” proved, there was no protection from the relevant Ordinance. Alimohamed Damji v Punja Hirji Gudka (1953), 20 E.A.C.A 78. Held, that the onus is upon the non occupying statutory tenant to prove an animus revertendi by some outward and visible signs of an inward intention to return. Malicious prosecution/Libel Bhanji Virji v Akbar Ali Jamal Gangji, (1936), 17 K.L.R. (1) 36. The onus of showing an absence of reasonable and probable cause for instituting the proceedings is upon the plaintiff. (As to libel, goe Swami Das Puri and Another v The Kenya Farmers’ Association (Co-operative) Ltd. and Another, (1947), 22 K.L.R (2) 1, which held that the onus is upon the plaintiff’s to discharge the burden of establishing alleged innuendos, i.e. that the words here imputed incompetence, gross carelessness, fraud and dishonesty on the part of the plaintiffs. Master and Servant Eriya Bosa v High Commission c/c E.A. Railways and Harbours, (1950), 17 E.A.C.A. 42. Suit for wrongful dismissal; defence of misconduct. Where the plaintiff proves that he was dismissed without notice, the onus lies on the defendants to prove misconduct.

R. v. Simeon Murage Gitwasi, (1942), 20 K.L.R. (1) 89.

Onus of proof of

“irretrievably lost” in Employment of Servants Ordinance, 1937 (K), s.59(c)(iii) dealing with herdsman being liable to fine when cattle “irretrievably lost” through his default. Mariamu Nakalema v Stanistawa Michalistanos and Another, (1956), 23 E.A.C.A 172. Held that as the facts proved that at the time of the accident the second respondent was driving the tractor which he was employed to drive, a prima facie case had been established that he was acting in the scope of his employment, and if he was not, then the burden of proving this had shifted to the first respondent. Partition G.V Patel v D.M. Patel, (1939), 6 E.A.C.A 48. Sale in lieu of partitian. Held that a party interested to the extent of one moiety is entitled as of right to a sale in lieu of partition unless there is some good reason to the contrary shown; the burden of showing such reason is on the party opposing the sale. Public user Abbas Bros v Fazal Mohamed Champsi, (1951), 18 E.A.C.A 36. The plaintiffs claimed an injunction to restrain respondent from entering their shamba and using a track or private road running across it. The defendant admitted user but alleged the track was common or public. At the trial the judge held that since the plaintiffs had pleaded the road was private, the onus lay upon them to prove it. Held, on allowing appeal and ordering retrial, it was incumbent upon the defendant to prove he had a right to use the plaintiff’s land and if he could not do so was a trespassor. Dar-es-Salaam v Twentache, [1967] E.A. 224 (T). The City Council prepared a scheme for an unnamed street and frontagers objected when called upon to contribute to the cost of making the road. In the lower court the Magistrate held that the street in question was a public one and not subject to the provisions of the Private Street Works

Ordinance (Cap.347) (T). On appeal, held that the onus of proving that the street in question was a public street lay on the objectors and was not discharged. Rent Alimohamed Damji v Punja Hirji Gudka, 20 E.A.C.A. 78.

Increase of Rent

(Restriction) Ordinance, 1949 (K). The onus is upon a non-occupying statutory tenant to prove an animus revertendi; (see Landlord and Tenant section, supra). Res ispa loquitur Ksuri Khuuidiin v Nazzer bin Seif El Kassaby and Another, [1960] E.A. 201 (C.A.). Appellant sued respondents for damages in respect of personal injuries suffered when a motor bus in which he was riding which was owned by the first and driven by the second respondent overturned when both offside rear tyres burst. Held, that the respondents could avoid liability by showing either that there was no negligence on their part which contributed to the accident, or that there was a probable cause of the accident which did not connote negligence on their part, or that the accident was due to circumstances not within their control. Taxation Comr. Income Tax v Bapco, [1956] E.A. 223 (C.A.). The onus of proving tax payer is not liable to assessment as well as onus of proving excessive assessment is on the taxpayer. Vallabhdas Shamsi Khambhaita and Others v Comr. Income Tax, (1954), 21 E.A.C.A 16. The onus is on the taxpayer to show that his original assessment to tax is excessive so that it is for him to satisfy the High Court on any disputed fact in issue.

Title to goods

H.W. Guggenheim Ltd v K.K Rajguru and Another, (1953), 7 U.L.R. 55. The onus of proving passage of title of goods falls on the party suing for the pride of the goods (i.e. the seller). Traffic Offences Bhandari v R., [1961] E.A.. 367 (E). Defendant was convicted under s.49(b) Traffic Ordiance, 1953, as amended, of Failing to conform to a traffic sign in that he parked his vehicle longer than permitted. Defendant had appeared in court and pleaded not guilty and held that there was no case to answer in that there was no evidence that he was the driver at the time of the violation. On appeal, held that the burden of proof put down an owner of a vehicle to show that he was not in charge of a vehicle arises only if he fails to comply with the notification requiring him to attend court to answer the charge. If he appears in court and pleads not guilty, it is then for the prosecution to prove that he was the driver of the vehicle at the relevant time, and in the absence of proof he is entitled to acquittal. Kamau s/o Muga v R., [1963] E.A. 172 (K). Traffic Ordinance, 1953, ss 43 and 44. Charge of causing death by dangerous driving. Evidence of a mechanical defect in the steering mechanism. Accused under the influence of drink at the time. Held, that the fact that a person may be under the influence of drink and may not thereby be capable of having proper control of his vehicle is a factor by itself, and if no other factors intervene may clearly be the cause of his driving dangerously, but if another factor intervenes, such as a mechanical defect of which the driver has no knowledge or no reason to suspect its presence or likelihood, then the question must inevitably arise as to whether, even if he had not been driving under influence of drink, he could have so controlled the vehicle as to avoid driving dangerously. In such circumstances the onus is upon the prosecution to establish affirmatively and beyond reasonable doubt that a person’s dangerous driving, irrepsective of the defect, was due to a cause within his control and that the death of his passenger was not caused by the defect, but was caused by the dangerous driving.

f. The burden of proof in criminal cases An accused person is presumed to be innocent until he is proved or had pleaded guilty; Constitution, Sec.77 (2)(a), p.(v), and the establishment of a prima facie case by the prosecution does not necessarily mean more than that there is a case to answer, see discussion, pp. 25-26. Section 111 K.E.A. places a burden of proof of facts or circumstances on the accused in certain instances which will be examined below, and sets forth the burden of proof which is placed upon the prosecution and defence in these cases. The burden on the prosecution under s.111 is to prove beyond reasonable doubt:(a)

that a crime has been committed, “........ to establish..... any acts, omissions or intentions which are legally necessary to constitute the offence with which the person accused is charge .......” (s.11(2)(a))

and,

(b)

that the accused is the person or one of the persons who committed the offence If an accused is charged with the burden of proof under s.111, he need only

raise a reasonable doubt to be acquitted. “....... the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defence creats a reasonable doubt as to the guilt of the accused person in respect of that offence.” Second proviso, s. 111(1). Section 105 of the I.E.A as applied in East Africa prior to 1936 reads:-

105. When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Expectations in the ..... Penal code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence is upon him, and the Court shall presume the absence of such circumstances. This was apparently a statement of the English law as it then stood; see MORRIS, p.137. In 1935, however, the House of Lords decided the case of Woolmington v Director of Public Prosecutions, [1935] A.C. 462, wherein it was said:“....... Just as there is evidence on behalf of the prosecution so there may be evidence on behalf of the prisoner which may cause a doubt as to his guilt. In either case, he is entitled to the benefit of the doubt. But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence. This is the real result of the perplexing case of Rex v Abramovitch, (1914), 11 Cr. App. R. 45, which lays down the same proposition ..... Juries are always told that, if conviction there is to be, the prosecution must prove the case beyond reasonable doubt. This statement cannot mean that in order to be acquitted the prisoner must `satisfy’ the jury. This is the law as laid down in the Court of Criminal Appeal in Rex v Davis, 29 Times L.R. 350; 8 Cr. App. R. 211, the headnote of which correctly states that where intent is an ingredient of a crime there is no onus on the defendant to prove that the act alleged was accidental. Throughtout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end the

of and on the whole of the case, there is a reasonable doubt, created by evidence given by either the prosecution or the prisoner, as to whether the

prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge of where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. (emphasis added). As a result of the decision in Woolmington v D.P.P. the I.E.A. is applied in East Africa was amended; Kenya, Ord.30/1936; Tanganyika, Ord. 12/1936; Uganda, Ord.9/1936; Zanzibar, Decree 17/1939. This rule has been stated by the courts in East Africa in a variety of different situations. For example, in Leonard Aniseth v R., [1963] E.A. 206 (C.A.), the accused was charged with murder and the trial Judge directed the assessors that “..... the burden of proof with regard to alibi is on the person setting up that defence to account for so much of the time of the transaction in question as to render it impossible that he could have committed the imputed act”. The Court held this to be a misdirection, and said that in so far as a passage in R v. Chemulon Wero Olango, (1937), 4 E.A.C.A. 46 suggests that any burden of proof rests on the defence when the defence is an alibi, it is clear in view of the decision in Woolmington v D.P.P and R. v. Johnson, (1961), 46 Cr. App. R. 455; 3 All E.R. 969 that such as suggestion is no longer good law and should not be followed. The Court quoted the headnote from R. v. Johnson:“Though on alibi is comonly called a defence, it is to be distinguished from a statutory defence such as insanity or diminished responsibility and is analogous to a defence such as self defence or provocation.

A prisoner

who puts forward an alibi as an answer to a charge does not assume any burden of proving that answer, and it is a misdirection to refer to any burden as resting on the prisioner in such a case”. On alibi, see also said s/o Mwakawanga v R., [1963] E.A. 6 (T), where the court reached the same conculsion, adding that if the accused by adducing evidence of an alibi introduces into

the mind of the court a doubt that is nor unreasonable, then the court must acquit him, applying R. v. Johnson. The Court in Okale v. R. [1965] E.A 555 (C.A.) repeated the principles set out in Ndege Maragwa v. R., (1965), E.A.C.A. Cr. App. 156/1964 (unreported) that the burden of proof in criminal proceedings is on the prosecution throughout the case, and that it is the duty of the trial judge to look at the evidence as a whole, coming from Ndege’s case which said:“We think it is fundamentally wrong to evaluate the case for the prosecution in isolation and then consider whether or not the case for the defence rebuts or casts doubt on it. Indeed, we think that no single piece of evidence should be wieghed except in relation to all the rest of the evidence. (These remarks do not, of course, apply to the consideration whether or not there is a case to answer, when the attitude of the court is necessarily and essentially different).” In Reed v R., (1952), 1 T.L.R. (R) 375, a charge under the murder and Native Servants Ordinance (Cap.78), of Tanganyika,11(a) in that the defendant failed to pay the wagers of his convict without reasonable and probable cause for believing that the wasge sware not in fact due, it was held that the onus is upon the prosecution to establish that an accused acted in bad faith, in that this would imply a certain state of mind of mens rea necessary before the criminal offence created by the section could be established. Where an accused was charged with alleged illegal movement of cattle contra the Animal Diseases Rules, 1948, the court held that the prosecution had the burden of proving that the land onto which the cattle moved came within specified categories and that the land was a “farm” within the meaning of r.2. Ndungu Kasau and Others v. R., [1958] E.A. 71 (K). Where an accused was charged under the Liquor Ordinance, 1934, of selling intoxicating liquor without a licence and being in unlawful possession of intoxicating liquor, it was held in R. v Josephine Muthoni w/o Ismael Ithongo, (1948), 23 K.L.R. (1) 71 that to prove an unlawful sale took place under s. 44 of the Ordinance, the onus is on the prosecution, and it

was necessary to adduce positive evidence either direct or circumstantial from which a sale could reasonably be inferred. In Waera s/o Madoya v R., [1962] E.A. 783 (K), the accused was charged and convicted with assaulting police officers in the due execution of their duties under s.254(b) now s.253(b), P.C. On appeal the Court here held that he could not escape liability merely on the ground that he did not know the person he assaulted or obstructed was in fact a policeman, but if he had reasonalbe ground for his belief he was entitled to the benefit of s.10 P.C., mistake of fact, but he then had the onus of establishing circumstances which were capable of justifying the conclusions that he acted under such a resonable and honest mistake. The Court said at p.786:“It is sufficient if on all the material in the case, it is open to the court to find that the mistaken belief might reasonably and honestly have existed in the mind of the accused and the onus of establishing that that was not so in fact, woul rest upon the prosecution and would require to be established with certainty”. Other examples of application of the principle in various types of cases are R. v. Manishanker v Mehta, (1946), 13 E.A.C.A. 115 is bankruptcy, where the accused was charged with attempting to account for property by fictitious loss and it was held that the onus of proving fictitious loss is on the prosectuion; Philip Buiga s/o Churia v. R., (1953), 256 K.L.R. 100 where the accused was charged with knowingly allowing a meeting of a prohibited society in his house contra s.71 (a) and (b) P.C., now s.70(a) and (b). It was hled that the burden of proof never shifted from the prosecution which, to succeed, had to prove affirmatively that the accused knowingly allowed the meeting to take place in his home. In Attorney General v. Ngaru s/o Kanyore, (1950), 24 K.L.R. (2) 123 the charge was under s.333 P.C. (now s. 338 as amended), wilfully or unlawfully killing, etc,. any animal capable of being stolen. The accused claimed he heard rustling among the maize and threw his spear thinking it was a wild pig, when in fact it was a cow.

It was argued by the

prosecution that once the facts had established that the wilful act was done, the prosecution

had discharged the burden of proving wilful and unlawful maiming. The Court, however, disagreed, deciding that although the act of throwing the spear was per se unlawful, the finding that he was acting under an honest and reasonable, though mistaken belief, relieved him of liability is that the burden of proof had not been discharged. Where it is sxpressly forbidden to do an act, proof of the doing of that act is deemed wilful as opposed to accidental or inadvertant, but different principles apply where the injury is one to property. I. The burden of pleading a specific defence Section 111(2)(c) provides:(2) Nothing in this section shall (c) affect the burden placed upon an accused person to prove a defence of intoxication or insanity. ............................................ 1.

Intoxication If an accused person pleads the defence of intoxication, the burden is place upon

him to prove the defence. Section 13 P.C. states that intoxication shall not constitute a defence to any criminal charge save as provided in the section, i.e. that if at the time of the act or omisison compained of the accused, by reason of intoxication, did not know that such act or omission was wrong or did not know what he was doing, and the intoxication was caused without his consent by the malicious or negligent act of another, or the accused was, by reason of intoxication, insane, temporarily or otherwise, at the time of the act or omission. By virture of subs.(4) intoxication shall be taken into account for the purpose of determinign whether the accused had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.

Section 111(2)(c), placing the burden on the accused to prove a defence of intoxication applies only to s.13(2) P.C., i.e. the burden rests on the accused only where the defence of temporary insanity through intoxication resulting in inability of the accused to know what he was doing or not knowing that what he was doing was wrong.

The

subsection has no application to s.13(4) P.c. which provides that intoxication shall be taken into account on the subject of intention. Therefore, while the accused has the burden of proving a defence under s.13(2) P.C., the burden of proving intention remains on the prosecution throughout. See Kongoro alias Athumani s/o Mrisho v. R., (1056), 23 E.A.C.A. 532, 534. The matter is clearly stated in the headnote to Cheminingwa v. R., (1956), 23 E.A.C.A. 451:“Held - That intoxication may provide a defence either by enabling the accused to prove temporary insanity or by indicating that he was incapable

of forming the intention necessary to constitute the offence. Int he

first case

the onus is on the accused to show the insanity. Int he second, the

onus

never shifts from the prosecution. Unless the intention is established the case fails at the outset and the Judge had erred as to the onus on this point”. The matter has been stressed in cases of murder. In Malungu s/o Kieti v. R., [1959]

E.A. 797, 799 (C.A.) it was said:“It is well established by a series of decisions of this court that the burden of proving that an accused was capable of forming the intent necessary to constitute the offence of murder always remains on the prosecution”. (citing

cases). The appropriate question in all such cases is whether the accused was so intoxicated

as to be entirely incapable of forming the intent charged, that is, the intent to murder.

Nyameru s/o Kinyoboya v. R., (1953), 20 E.A.C.A. 192, 195 citing R. v Beard, [1920] A.C. 479; 14 Cr. App. R. 159, 191. When will the burden placed on the accused under s.13(2) P.C. be discharged? In Godiyano Barongo s/o Rugwire v R., (1952), 19 E.A.C.A 229 the appellant was convicted of murder, and the Judge was prepared to find as a fact that his brain must have been inflamed and poisoned by drink, but refused to believe that his intoxication was so complete as to amount to legal insanity. The Court held that:“Thd burden resting upon the accused when attempting to rebut a natural presumption which must prevail unless the contrary is proved will never be so heavy as that which rests upon the prosecution to prove the facts which they have to establish and it will not be higher than the burden which rests on a plaintiff or defendant in civil proceeidngs. It must, however, at least establish the probability of what is sought to be proved”. Similar language was employed in Cheminingwa’s case, cited with approval in Kongoro’s case and reiterated in Malungu’s case:“It is of course correct that if the accused seeks to set up a defence of insanity by reason of intoxication, the burden of establishing that defence rests upon him in that he must at least demonstrate the probability of what he seeks to prove”. MORRIS, p.142, relying on a passage in R. v. Justo Odima, (1941), 8 E.A.C.A. 29, “.....It would have been sufficient for the appellant to have reaised a reasonable doubt in his favour as to his being capagle of forming the necessary intention.....”, equates intoxication with the defence of provocation, and it certainly does not appear from the decisions whether raising a reasonable doubt and “demonstrating the probability of what he seeks to prove” are equivalent or exactly how they are related. (On the burden of proof, see also Nyakite s/o Oyugi v. R., [1959] E.A. 322 (C.A.), R. v. Retief, (1941) 8 E.A.C.A. 71.

2.

Insanity Section 11 P.C. Provides:11. Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.

This is a rebuttable presumption of law (see discussion, infra), and is the presumption referred to in the quotation from Godiyano’s case, supra p.40, in relation to the burden of proof when the defence of intoxication is predicated upon s.13(2) P.C. where the alleged insanity is the result of intoxication. The statement is also applicable to defence of insanity not arising from intoxication. In the decision of R. v. C.W. Ross, (1932), 14 K.L.R. 48, it was held that on a trial for murder where the defence is insanity, the accused person to exempt himself from cirminal responsibility must satisfy the jury beyond any reasonable doubt that he was insane int he legal sense at the time of committing the act. This decision has never been referred to in subsequent East African Reports, but has clearly been superceded, not only by Godiyano’s case but by R. v. Mwose w/o Mwiba, (1948), 15 E.A.C.A. 161 wherein it was held that the well-settled law is now that the onus on an accused person to establish insanity is no higher than that on a party to a civil case on whom is laid the burden of proving a particular issue, following Sodeman v. R., (1946), 2 A.E.R. 1138 and R. v. Noormahomed Kanji, (1937), 4 E.A.C.A. 34. Elaborating, the Court in R. v. Kamau s/o Njoroge, (1939), 6 E.A.C.A. 133 said: “The burden of proving this incapacity is on the defence and the appellant will be deemed to have discharged that burden if he has shown that the preponderance of evidence supports a defence of insanity”.

See also R. v. Kibiegon arap Bargutwa, (1939), 6 E.A.C.A. 142; R. v. Muna s/o Mubaba, (1939), 18 K.L.R. (2) 141; R. v Kachinga, (1946) 13 E.A.C.A. 135, wherein the Court said: “It is, generally speaking, sufficient if he (the accused) produces such a preponderance of evidence as to show that the conclusion that he was insane at the time of the offence is substantially the most probable of the possible views of the facts”. The matter was discussed in slightly discussed in slightly different terms in R. v. Saidi Kabila Kiunga, [1963] E.A. 1 (T), where the Court said at p. 2:“When insanity is advanced by the defence; ...... the burden of proof is on the defence, although it is not a heavy burden. As WINDHAM, J.A. ..... said in Nyinge s/o Suwatu v. R., [1959] E.A. 974 (C.A.): “he must show, on all the evidence, that insanity is more likely than sanity, though it may be ever so little more likely. Merely to raise a reasonable doubt might still leave the balance tilted on the side of sanity”. Here, as the headnote says, “the evidence regarding the accused’s insanity did no more than raise a doubt as to the sanity of the accused at the time of the act, but it fell far short of establishing a margin of probability on the side of insanity”. It would appear that the language of the Court in Saidi’s case is not inconsistent with the language in Godiyano’s and Kamau’s cases, supra, and that the terms “insanity is more likely than sanity”, “margin of probability”, and “preponderance of the evidence” all refer to the same standard of proof, no higher than the burden which rests on a party of civil proceedings. (Note: If the insanity is alleged to have been caused by a physical as opposed to a mental disease, such as an offence committed by an alleged epileptic, the burden is on the accused to show that at the time of the commission of the offence he was suffering from an epileptic seizure. See: R. v. Salim bin Saidi, (1930), 1 T.L.R. (R) 123.)

h. The burden of proving circumstances bringing a case within exception or exemption from or qualification to the law. S.111(1) K.E.A provides:111.(1) When a person is accused of any offence, the burden or proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him: Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether in cross examination or otherwise, that such circumstances or facts exist: ........................................ Subs.111(2)(b) provides further:(2) Nothing in this section shall: (b) impose on the prosecution the burden of proving that the circumstances or facts described in subsection (1) of this section do not exist; .............................................. 1.

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

law general If a person is an exception to the operation of the law, he is not included; it does not apply to him. If a person is exempted from the operation of the lawyers is not subject to its

application for a particular reason. If there in a qualification to the operation of the law, its operation is modified, limited or restricted. If a person enters a plea of not guilty in cases to which s.111(1) applies, he is not entering the normal claim that he did not do the acts complained of: rather he is saying in effect “If I did in fact do what the prosecution claims I did, nevertheless I am not guilty of an offence because the law does not apply to me, or does not apply to what I did in the circumstances of this case”. Thus, for example, it may be proved that an accused acted in a particular way with respect to property, but the accused claims that the actions were done or omitted to be done in the exercise of an honest claim of right and without intention to defraud; s.8 P.C., or that what he did or omitted was under an honest and reasonable, but mistaken belief in the state of things, and that he is not guilty to any greater extent than if the real state of things had been such as he believed to exist; s.10 P.Cp. In circumstances such as these, the burden of proving these circumstances is on the accused, and the prosecution has no burden to prove that the circumstances did not exist, although the burden may be discharged if by prosecution evidence, from cross examination exception, exemption or qualification. In this section, s.111 K.E.A is identical in wording to s.105 I.E.A as amended, and most of the cases will refer to s.105. See pp.37-38. It should be kept in mind that proving circumstances or facts as set forth in s.111 is a different matter from establishing a defence, which is not required except in cases of insanity. See Data s/o Mtaki v R., [1959] E.A 862 (C.A) 2.

Where a burden is placed upon the accused by statute

Those cases in which a burden of proof is placed on an accused person by statute must be distinguished from (a) those cases where the burden to prove the existence of circumstances bringing the case within an exception, etc., and (b) those cases where the burden of proving any fact within the knowledge of an accused is upon him. In statutory burden cases, s.111 is not applicable. The basic East African authority for this proposition is Ali Ahmed Saleh Amgara v. R., [1959] E.a. 654 (C.A), in which the appellant had been convicted on two counts of importing restricted goods, contrary to para. (a)(ii) of s.147 of the East African Customs Management Act, 1952. Under s.167(b) of the Act, the onus of proving that those goods, gold, were imported lawfully, that is to say that since the gold was unlicensed it was in transit and that there was no intention to dispose of it in Kenya, was placed on the accused. On appeal Counsel argued that there had been a misdirection in the Supreme Court, and that the onus on an accused person under s.105 I.E.A. and s.167 of the Customs Act was no more than to raise a reasonable doubt. The Court of Appeal said on p.658:“Where, as in the instate case, there is a specific provision in a statute placing the burden of proof regarding a particular matter on the person accused, there is no need for the prosecution to rely upon s.105.... and we think that the application of that section must be excluded, even though it would otherwise have been applicable, and that the principles of English law would apply. Nevertheless, even if it might be thought that by analogy the degree of the burden on the accused should be drawn from s.105, we do not think that there is any material difference between s.105 of the Evidence Act and the English Law on the point. The position under English Law is stated in PHIPSON ON EVIDENCE (9th edn) at .38 as follows. “When, however, the burden of an issue is upon the accused, he is not, in general, called on to prove it beyond a reasonable doubt or in default to incur a verdict of guilty; it is sufficient if he succeed in proving a prima facie case, for then the burden is shifted to the prosecution, which has still to discharge

its original onus that never shifts, i.e. that of establishing, on the whole case, guilt beyond a reasonable doubt. We accept that statement of the law. In R. v. Carr-Briant, [1943] K.B. 607, which is one of the cases cited in PHIPSON in support of the proposition just stated (and is also cited in the commentary on s.105 of the Indian Evidence Act in SARKAR ON EVIDENCE (4th Edn.) ag p. 698) the Court of Criminal Appeal said, at p.612: “In our jugement, in any case where, either by statute or at common law, some matter is presumed against an accused person `unless the contrary is proved’, the jury should be directed that it is for them to decide whether the contrary is proved, that the burden of proof required is less than that required

at the hands of the prosecution in proving the case beyond a

reasonable

doubt, and that the burden may be discharged by evidence satisfying

the jury

of the probability of that which the accused is called upon to

establish”. ......It still, of course, remains for the court to be satisfied beyond reasonable doubt as to the guilt of the accused on the whole of the evidence and this, in substance, is all that is enacted by the second proviso to s.105.....”. Amgara’s case has been quoted in extenso and its principles applied in R. v. Mohanlal Ramji Popat, [1961] E.A. 263 (C.A.) a case under s.137(1)(t) of the Bankruptcy Ordinance (Cap.30) of Kenya, which throws on a debtor the burden of showing that at the time he contracted a debt he had reasonable or probable grounds of expectation of being able to pay it; quoted and discussed, contrasting application of the rule with s.105 in Omparkash Ghandi v. R., [1961] E.A. 643 (K); and quoted and applied in Chebusit A’Kalia v. R., [1963] E.A. 448, 453 (K) in a case involving stock theft (see below). The burden of proof in these statutory burden cases is a persuasive burden, as distinguished from an evidential burden.

See Omparkash Ghandi’s case, p.650 and

discussion below. The burden upon the accused must be satisfied to the extent of showing a balance of probability, as in cases of insanity. In Gamalieri Mubito v. R., [1961] E.A. 244, 247 (C.A.) under the Game (Preservation and Control) Ordinance, 1959 wherein s.23 placed upon an accused charged with being in possession of, selling, etc. trophies obtained in contravention of the Ordinance, the burden of proving that the trophy was lawfully obtained, the Court indicated that the accused need only put forward an explanation which might reasonably be true. Another phrasing of the standard of proof required is R. v. Bashir Ahmed, (1945), 21 K.L.R.(2) 29 where the Native Liquor (Amendment) Ordinance, 1941, s.4 had placed upon an accused the onus to prove that liquor was in his possession without his knowledge once possession had been proved. Here the Court held that the onus on the accused is not as heavy as that resting on the prosecution in ordinary criminal cases and would be sufficiently discharged if the evidence, taken as a whole, established that the lack of knowledge on the part of the accused was so probable that a prudent man ought, under the circumstances, to believe that fact, citing s.3 I.E.A.; see also R. v. Dewji Pragji Mehta, (1946), 13 E.A.C.A. 80, possession of diamonds, also under s.3. For other examples of instances placing a burden on the accused by law see: R. v. Ramathan Jabi; (1948), 23 K.L.R. (1) 81, charge of unlawful possession of Crown Land; Mohamed Hussein v The Price Controller, (1941), 10 E.A.C.A. 72, Defence (Price of Goods) Regulation, 1941, giving false information in answer to request of Price Controller, burden of proving that accused neither a wholesaler nor retailer on him. Cases dealing with possession of stolen goods, s.324(2) P.C. will be found under the subject of presumption, s.119K.E.A., infra. In Ouko v R., [1966] E.A. 286 (K), where the accused was charged under s.3(1) of the Prevention of Corruption Act (Cap.65) and the accused’s defence was that the case had been fabricated against him, it was held a misdirection for the Magistate to hoel that all that was necessary for the accused to succeed was to show on the balance of probabilities that the case was a fabrication; the Court noted that this was not one of the special cases

where the Legislature had “with deliberation and in set terms thrown the burden of proof upon the accused”. Immigration cases raising questions of unlawful entry through misrepresentation, etc. and the onus resting on an accused are discussed in Attorney General v Govindji H.N. Shah, [1961] E.A. 110 (C.A.) at pp. 117-118. The trial Judge had said: “I am satisfied that once it is established or admitted that the plaintiff duly reported to the immigration officer and was permitted by him to enter ..... the onus upon the plaintiff of proving that he is not a prohibited immigrant has been prima facie discharged and that thereafter the onus of establishing that the case comes within the provisions of s.8 of the Immigration Ordinance lies upon theperson who asserts that this is so, at least to the extent of raising a prima facie case”. The court said: “That may well be correct in a case where no misrepresentation has been proved to have been made: Bhanabhai’s case. (Ex parte Bhagubhai Bhanabhai, (1954), 27 K.L.R. 134). It is correct that, in such a case, the provisional burden of proof depending on the state of the evidence, which LORD DENNING, in Huyton-with-Roby U.D.C v Hunter, [1955] 2 ALL E.R. 398; and Dunn v Dunn, [1946] 2All E.R. 822, distinguished from the legal burden of proof, is shifted by showing that the immigration officer at the port of entry was satisfied that the immigrant’s entry was lawful. That would not shift the legal burden of proving that the immigrant was not a prohibited immigrant at the time of first entry which, under s.18(2) of the Ordinance, remains upon the immigrant and does not shift, so that at the end of the case it would be the duty of the judge to ask himself: `Has that burden been discharged?’ Dunn v Dunn. In Bhanabhai’s case it was held that it had been discharged. But, where it is proved that there has been a prior material misrepresentation ot the Immigration Department .... not even the provisional burden of proof is shifted: the burden of proof that the immigrant is not, or was not when he entered, a prohibited

immigrant and that his entry and presence in the Colony was and is lawful, rests squarely upon the immigrant under s.18(2) of the Ordinance: Ramji’s case (Hirji Devchand Ramji v. Attorney General for Kenya, (1956), 23 E.A.C.A. 20) and Chimanlal’s case. (Chimanlal Motibhas Hira Patel v The Attorney General, [1960] E.A. 388 (C.A.).” Other cases, for example Mandhan Devraj v. R., (1955), 22 E.A.C.A 488 have been decided on the basis of s.105 I.E.A. or equivalents, see below. See also Abdillahi Jama Awaleh v. R., [1958] E.A. 20, 27 (C.A.). (Note: s.15 of the Immigration Act, 1967 (No.25 of 1967) reads:15. Whenever in any legal proceedings under or for any of the purposes of this Act any one or more of the following questions is in issue, namely:(a)

Whether or not a person is a citizen of Kenya;

(b)

Whether or not a person is one of the persons mentioned in section 4(3) of this Act;

(c)

Whether or not there has been issued or granted to pass, authority, approval or consent, whether under this Act or under the repealed Acts;

(d)

Whether or not any person was at any time entitled to any such issue or grant as is referred to in paragraph (c) of this section,

the burden of proof shall lie on the person contending that such person is a citizen of Kenya, or one of the persons mentioned in the said subsection, or a person to whom such an issue or grant was made, or a person who was entitled to an issue or grant, as the case may be. The Court in Chubusit A’Kalia v R., [1963] E.A. 448 (K) discussed the changes in the wording of s.10(1) of the Stock and Produce Theft Ordinance (now s.9(1) of the Stock and Produce Theft Act, Cap. 355) which now reads:

9.(1) Any person who has in his possession any stock which may reasonably be suspected of being stolen of unlawfully obtained shall, if he fails to prove to the satisfaction of the Court that he came by the stock lawfully, be guilty of an offence .......” and, after setting forth and considering the law on the burden of proof as found in Ali Ahmed Saleh Amgara v. R., supra p.44, concluded (p.454):“..... a person in possession in a proclaimed district of any stock which is reasonably suspected of having been stolen or unlawfully obtained can only be convicted under the section if he fails to show that no offence was committed in respect of his acquisition of the stock”. It should be noted that the phrase “in a proclaimed district” was deleted by the First Schedule of Act No.21/1966. The Court also noted that the previous rule as found in Kipsoi arap Soiyot, (1941), 19 K.L.R. 89 is no longer good law. Presumably the same would apply to other earlier cases: R. V. Kiberenge s/o Kachilichili, (1946), 22 K.L.R. (1) 36; R. V, Mathayo Oyoo, (1945), 21 K.L.R. (2) 54; R. v. Kimuge Arap Ngelenu, (1939), 18 K.L.R.(2) 153. 3.

The onus of proof under s.111 K.E.A. In those cases where the burden of proof is placed on an accused by viture of s.111,

the onus of proof is different from that set forth in Amgara’s case see p.44 - where the burden is on the accused by statute. This distinction is discussed in Omparkash Ghandi v. R., [1961] E.A. 643, 650 (K):“Now the onus which is placed upon the defence by s.105 of the Indian Evidence Act is to prove two types of facts. The first type of facts are circumstances bringing the case within any exception, exemption from or qualification to the operation of the law

creating the offences. The second type of facts are those which are especially within

the knowledge of the person accused. Difficulties sometimes arise as to facts especially within the knowledge of the person accused as to whether they have to be

proved

negatived by the prosecution as part of the general issue or whether they

have

proved by the defence as facts specially within the accused’s own

or to

be

knowledge.

Fortunately no such difficulty arises in this appeal since it is clear that to

avoid

a

conviction the appellant had to obtain the benefit of the proviso to s.97, sub- s.(2), of the Traffic Ordinance, 1953, by showing that the offence was committed without knowlege or consent and that he had taken all reasonable precautions to issue which was really in question was whether he had taken all upon the appellant, however, was no tto establish that he had

his

avoid it. The

reasonable of proof taken

all

reasonable

precautions to avoid the commission of the offence. The onus of proof upon the appellant, however, was not to establish that he had taken all

reasonable precautions to avoid

the commission of the offence, it was to prove

circumstances bringing the case within

that exception. The distinction is perhaps a

fine one, but we think it is important

since, in our opinion, if the accused establishes

certain circumstances which he suggests

are capable of bringing the case within the

proviso, then it is for the prosecution to

show conclusively that such circumstances

do not bring the case within the proviso.

We thing it follows that the section does

not have the effect of raising a presumption in

favour of the prosecution until the contrary is proved in the sense of the presumptions involved in the cases of (R. v. [1943] K.B. 607, and R. v.

Sodeman, [1936], 2 All E.R. 1138, R. v. Carr-Briant,

Dunbar, p[1957] 1 Q.B. 547; 1 All E.R. 734). It, therefore,

follows, in our opinion, that

the onus on the defence is an onus of evidential proof

and not an onus of persuasive

proof.

proviso to sub-s.(1) and by the

exclusion from the scope of the section of the special

defence of insanity in which

persuasive proof is required. In our opinion the effect

of s.105 in the present appeal

was that it was for the appellant to show from the

evidence adduced by the defence

or by the prosecution that there was evidential material

capable of being believe

This appears to be confirmed by the second

dand capable of brining the case within the proviso ...... It was

then for the court to decide if that evidential material sufficed to bring the case within the proviso and if

there was any doubt as to that or as to any other material ingredient

of the offence the appellant was entitled to be acquitted in accordance with the second

proviso to 493.

sub-s. (1) of s.105 of the Act: Madan Devraj v. R., (1955), 22 E.A.C.A. 488 at

“(emphasis added). Thus the section cannot by any implication be utilized to cast on the accused the

burden of proving his innocence, i.e. it does not cast upon him any burden to prove that no cirme was committed by proving facts lying specially within his knowledge. See Abdillahi Jama Awaleh v. R., [1958] E.A. 20 (C.A) p.27; Remat Nanji Ahmed v. r., [1959] E.A. 804 (T) p. 811. The standard of proof is set forth in Ali Hassan Mohamed v. R., [1959] E.A. 606 (K) @ p.608:“....... the onus upon the defence will be discharged if the court is satisfied that the evidence given by either the prosecution or the defence creats a reasonable dobut as to the guilt of the accused person in respec of the offence”. drawing on the language of the section. 4.

Cases involving exceptions, exemptions and qualifications.

In R.B. Patel v R., [1959] E.A 97 (C.A.), the accused was found in possession of currency notes for which no exchange control permit had been obtained. He was in possession of an airline ticket to Bombay via Aden, and his departure declaration form showed that he gave his country of destination as India. The Exchange Control Ordinance (No. 40/1950), s.22(1) reads: “22(1) The exportation from the Colony of - (a) any notes of a class which are or have at any time been legal tender in the United Kingdom or any part of the United Kingdom or in any other territory .... is hereby prohibited except

with the persmission of the member”.

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

“3 (1) There shall be exempted from the provisions of s.22 of the Ordinance, the exportation for the Colony (i)

by any traveller to .... Aden ..... on his person or in his baggage of any currency notes or postal orders”

The Court held that under the facts there had been no attempt to discharge the onus which lay upon the appellent of showing that he fell within the exception by any suggestion that he intended to apply for any permit, or exchange his currency notes for any draft or other form of credit in Aden. Abdul Hussein v. R., [1959] E.A. 105 (K) involved an accused who operated a grocery store in Nairobi on Crown land within a military compound without a Municipal licence as required by the Municipal By-laws. The accused contended that since the premises were on Crown land, prima facie the By laws had no application, and that the onus was on the prosecution to establish that in the circumstances of the case the By-laws did, in fact, apply to the premises, and that the prosecution failed to discharge that onus. The Court said at p.108:“....Although there was nothing in the evidence to show how the appellant came to be in occupation of the premises, it seems clear that he was a member of the public and not a servent of the Crown. There was nothing to indicate that he had any good claim to Crown status. On those facts there was a prima facie case against the appellant and the burden lay on him of proving the existence of circumstances which would exempt him from the operation of the By-laws. In our view the appellant did not discharge that burden, even to the extent of raising a reasonable doubt”. The relevant section in Omparkash Ghandi v. R., [1961] E.A. 643 (K) was s.97(2) of the Traffic Ordinance, 1953, which reads:-

“(2) If any public service vehicle carries more persons, baggage or goods than it is licensed to carry, the driver, conductor and the owner of such vehicle shall be guilty of an offence..... Provided that the owner shall not be guilty as aforesaid if such offence is committed without his knowledge or consent and if he took all reasonable precautions to prevent it”. The Court held that the proviso was an exception or qualification to the law creating the offence stated in the earlier part of the sub-section, and therefore the onus of proving circumstances entitled the appellant to the benefit of the proviso feel upon him by virture of s.105 I.E.A. The appeal was allowed owing to a misdirection by the trial magistrate as to the burden of proof required and other matters. The appellant had merely to prove the existence of circumstances which might amount to proof that he had taken all reasonable precautions, and it then was for the prosecution to prove beyond doubt that any facts so proved did not establish that all reasonable precautions had been taken as well as to prove all the other essentials of the offence. In Bombay Trading Stores v. R., [1962] E.A. 589 (C.A) the appellant had been convicted under the Uganda Pharmacy and Poisons Act (Cap.273) of selling poisons to an unauthorised person. Section 29(4) created an absolute prohibition against the sale of such poison, followed by words of exception. (The Court decided that the fact that the words of exception were, in fact, contained in an earlier subsection was not material). After reaching the conclusion (p/593) that whether M. was a person to whom the poisons could be sold was not a fact specially within the knowledge of the appellants, the Court said at pp.594-5:“.... We think that it is to be gathered from the authorities discussed above that the question whether a particular provision creates an exception affecting the burden of proof must be resolved by construing as a whole the legislation in which it is contained, in which task the fact that the exception is expressed before, within, or after the provision creating the offence may possibly be a relevant, but is certainly not a determining factor. We are therefore of opinion that the sale of Part I poison prima facie constitutes an offence,

that the first part of s.104(1) applies in the circumstances of this case and that the burden of proving circumstances bringing the case within the exception to the operation of sub-s. (4) lay upon the appellants. In short, the onus was upon the appellants to prove not only that they were authorised to sell Part I poison, but also that Musoke was a person to whom they were authorised to sell Part I poison under s.29.” 5.

Cases involving facts especially within the knowledge of the accused. It should be noted that the obligation cast by s.111 on an accused person of proving

any fact especially within his knowledge does not cast upon him the burden of proving that no crime was committed; see Mwaitige v. R., [1961] E.A. 470, 475 (C.A.), citing authority. Certain types of case have been held to fall doubly within the provisions of s.111(1), notably those involving licences. In Mohamed Hassan Ismail v. R., (1955), 22 E.A.C.A. 461 the accused had been convicted for being in possession of a firearm and ammunition without the requisite certificate. Possession was proved and admitted, but no evidence was called by either side concerning the certificate, the evidence showing that the appellant had been asked to produce a certificate and had said that he had it, but although given evey opportunity, failed to produce it was only able to produce a certificate for the previous year. The Court said at p.463:“In the present case we think that the possession by the appellant of a firearm licence is a matter which falls twice over within the above provision, (s.105(1)I.E.A.), for not only is it in our view a circumstances bringing the case `within an exception or

exemption from the operation of section 4(1) of the Firearms Ordinance, but also it

is

a fact `especially within the knowledge of’ the appellant”. See also John Nzoli v. R., [1961] E.A. 575 (K) wherein it was held that as the vehicle

in question carried a passanger or passengers for hire or reward, it was a public service vehicle as defined in s.2 of the Traffic Ordinance, 1953, and under s.105 I.E.A. the onus was

upon the first appellant to show that there was a public service licence in force, referring to Mohamed Hassan Ismail v. R. See also Fatch Ali Shah Mushad v. R., (1939), 1 T.L.R. (R) 229 where, in a case involving a charge of buying raw gold without a licence it was held that when the prosecution had led sufficient evidence in respect of the purchase of raw gold by the appellant, the onus of proof was shifted to him to prove that he was licensed to buy gold if it was sought to bring the case within the exception to the operation of the section under which he was charged, seeing that the negative averment in the charge (“not being a licensed gold dealer”) was on that related to him personnaly and was peculiarly within his knowledge. On appeal, (1940), 7 E.A.C.A. 41, the Court expressed the opinion that the case fell within the exact language of s.105 and might have been decided on the ground that it was for the appellant to prove that he came within the exception to the law by showing that he had taken out a licence. In R. v. Central African Contractors Ltd., (1944), 21 K.L.R. (2) 32 the accused was convicted under the Defence (Control of Prices) Regulations, 1943 of selling various priceregulated goods at prices exceeding the maximum prices fixed under the Regulations. the accused claimed that the difference over the price of eggs was well within the legitimate charge for transport on eggs.

In no case did a sale invoice indicate any charge for

transport on the sale and delivery of the eggs, and certain exhibits inciated that they delivered produce free of charge. It was held that the cost of transport was a matter exclusively within the knowledge of the accused and he had the onus to prove it. On the other hand it was held in Mwaitige v. R., [1961] .E.A 470, 475 (C.A.) the Court held that the identity of the producer of coffee and the district in which it had been grown were not facts especially within the other hands since it left the producer and before the accused acquired it. When an employee was injured feeding leave into a sisal decorticating machine, the appellant in Kanji and Kanji v. R., [1961] E.A. 411 (C.A) was convicted under ss 23(1) and 75 of the Factories Ordinance (Cap. 297) of Kenya in that they failed properly to fence the machine and as a consequence of this breach of duty the employee was injured. The Magistrate made a finding on the condition of the machine on the date of the accident from

the evidence of a factor inspector who had inspected the machine five months after the accident. The Court held that it had been wrong to hold that a change occuring in the machine between the date of the accident and the date of the inspection by the factory inspector would be a matter “especially within the knowledge” of the appellants within s.105, it being well established that the section doe not cast upon an accused the burden of proving that no crime was committed, and the appeal was decided on other grounds.

It

has also been held in James Mutemi s/o Mbiti v. R. (1949), 23 K.L.R (2) 98 that the burden of proving that passengers were being carried for hire or reward under the Transport Licencing (Amd.) Ordinance, 1937, s.4(1) was on the prosection, being an averment of positive fact and not a fact especially within the accused’s knowledge. Notice the difference between the positive averment here, and the negative averment in Fathed Ali Shah Mushad, above. Chandaria v. R., [1966] E.A. 246 (C.A.) presented an interesting problem of interpretation under s.111 K.E.A.

The accused was convicted on eleven counts of

attempting to commit offences under the Exchange Control Act by mailing currency to one K.H.C. in London. The question was whether K.H.C. was a person resident outside the scheduled territories. A letter seized by the police clearly showed that K.H.C. was living in London with his wife and children, was carrying on a business, and was considering buying a building. Counsel for the Republic cotended that once a prima facie case had been established that K.H.C was resident outside the scheduled territories, the burden of proof would shift to the accused under s.111, relying on Mohamed Hassan Ismail, supra. The Court said at p.250:“In the first (of the cases cited by Counsel) the question in issue was whether or not the accused was an alien; in the second the question in issue was whether sausages made by the accused contained pork and, if so, in what proportion; in the third, the question in issue was whether the accused had a certificate entitling him to possess a firearm. Those were all questions which the accused persons could answer and probably no one else. Once the prosecution had established a prima facie case, the onus therefore shifted. We think, however, that the position is

essentially different here.

In the cases cited, the accused’s knowledge was

knowledge of his own, personal, circumstances: one knew his own nationality, one the ingredients of the sausages he made and one whether or not he had obtained a firearms certificate. Here, we are being asked to say that a fact relating to someone else was especially within the knowledge of the appellant. The fact in issue was where Khimchand and resident; that fact could on be arrived at by influence from other, primary, facts and possibly, though not necessarily, from a knowledge of Khimohand’s intentions. The appellant may have known of his own knowledge, some of the primary facts from which resident could be inferred by it was impossible

to be sure that he knew them all and he certainly could not know Khimohand

purporting to set out his intentions but these could do no more than found a belief in the appellant’s mind as to Khimchand’s residence. It would not be a matter of knowledge and therefore s.111 would not apply”. For additional immigration cases under s.105 I.E.A. or equivalents, see Mandan Devraj v. R., 1955, 22 E.A.C.A. 488, 493: Patel v Attorney General, [1960] E.A. 388 (C.A.), burden of proving entry was lawful was on accused being a fact especially within his or his family’s knowledge.

I.

Proof of special knowledge in civil proceedings Section 112 K.E.A reads:112. In civil proceedings, when any fact is especially within the knowledge of any party to these proceedings, the burden of proving or disproving that fact is upon

him. ......................................

Section 106 I.E.A from which s. 112 was drawn, read: 106. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The words “in civil proceedings” were added when the section was enacted by virture of Ordinance 30/1936, and when the Evidence Act, 1963 was enacted the words “or dispreving” were included, as well as “party to those proceedings” which was substituted for the words “any person” in the old section. In civil cases it is the duty of a party, personally knowing the whole circumstances of the case, to give evidence on his behalf and to submit to cross-examination; his nonappearance would be one of the strongest circumstances going to discredit the truth of his case. When a person does some act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. For example:A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is upon him. Before the 1963 Evidence Act added the word “or disproving”, the burden was one of proving affirmative facts, not disproving facts, and the amendment has raised some still unanswered questions. An example of the application of th eold section (s.106 I.E.A. as amended by Ord. 30/1936) is Pritam v Commissioner of Internal Revenue, [1961] E.a. 671 (K), in which an assessment was made under s.105 (1) of the East African Income Tax (Management) Act, 1958, which reads:-

“An assessment may be made under s.102, s.103 or s.104 at any time prior to the expiry of seven years after the year of income to which the assessment relatos; provided that:(a)

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

More an assessment was made after the end of seven years. The Commissioner argued that the onus was always on the taxpayer to show that the original assessment is excessive, and that by virtue of s.106 I.E.A. the burden of proving that an assessment is barred by a statute is on the taxpayer. The Court held that if the respondent (Commissioner) sought to maintain that any particular assessment which, on the face of it, is expressed to have been made more than seven years after the end of the year of income to which it relates, was not statute barred, he must call evidence of such a nature as to establish that there was a preponderance of probabiltiy that the taxpayer in relation to his income tax for the relevant year of assessment either acted fraudulently or was in gross or wilful default. Discussing the application of the section, the Court said on p.675:“Admittedly it must be peculiarly within the knowledge of the taxpayer whether he has committed fraud or gross neglect in relation to his income but the burden created by (the section) is a burden of proving affirmative facts, not of disproving facts; in fact, (Counsel’s) contention, if correct, would entail casting in every civil case in which fraud is alleged the burden of disproving fraud upon the party against whom fraud is alleged”. (emphasis added). (Note: reference in the report is to s.105, but the section quoted is s.106, which is correct).

Thus here the affirmative burden of proving facts places upon the Commissioner the burden of proving the fraud or wilful or gross neglect on the party which alleged them, in order to satisfy the condition which would allow the assessment to be made after the expiry of the statutory period. Under the section as it now reads, where a burden of proving or disproving facts especially within his knowledge placed upon a party, and in as much as “it must be peculiarly within the knowledge of the taxpayer whether he has committed fraud or gross neglect in relation to his income.....”, what would be the position if the same case were heard today?:1.

Assessment brought after seven years.

2.

Commissioner alleges fraud in preparation or original tax return allowing him to

bring an assessment after the expiry of the statutory period .Query: Is the burden of disproving fraud placed upon the taxpayer by the allegation in the pleadings? It is submitted that a mere allegation of fraud in the pleadings would not be sufficient to shift to a defendant a burden of disproving fraud, but that the plaintiff will be required to make out a prima facie case before the burden will shift, especially since the Court of Appeal has held that “allegations of fraud must be strictly proved: although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required”. R.G. Patel v Lalji Makanji/. [1957] E.a. 314 (C.A.). There have been, todate, no reporte cames on the burden of disprovingfacts especially within the knowledge of a party. However several cases reporte illustrate how the burden of proving facts has been placed on a person by virtue of the section.

In Ali K. Virani v United Africa Co., [1958] E.A. 204 (C.A.) the applicants knowingly sold coffee at an unreasonably low price. Soon after the police seized the coffee under a search warrant. The director was charged with receiving it knowing it to have been stolen, and was convicted. The coffee was never returned to the respondents who claimed the return of the price paid. When the respondents closed their case the appellants called no evidence, but submitted that there was no evidence before the court that the appellants had no title to the coffee. On appeal the Court thought that the facts raised a strong prima facie probability that there was outstanding a claim of right in some person antecedent to the appellants’ title rendering it at best defective, and said on p.210:“At the very least, the facts proved were sufficient to place, by virtue of s.106 of the Indian Evidence Act, the onus on the appellants to prove two facts, both peculiarly within their own knowledge, that they had a right to sell the coffee (see s.14(a) of the Sale of Goods Ordinance), and that the failure of the respondents to obtain quiet possession (see s.14(b)) was not due to any cause for which in law they were responsible. The appellants, however, deliberately chose to call on evidence”. A case under s.112 K.E.A. is East African Road Services Ltd v J.s. Davis & Co. Ltd., [1965 E.A. 676 (K). The plaintiff consigned goods to the defendant, a carrier, for carriage from Nairobi to Tanzania. None of the goods were delivered and the plaintiff sued for the loss. At the trial no evidence was given as to the reason for non-delivery. The defendant relied on an exemption clause in the contract which excluded liability for loss “whether or not such loss ..... was caused by or through or due to the negligence of the (defendant) or its servants or agents or otherwise. However, it was common ground that the exemption clause could not be relied on if there had been a fundamortal departure from the performance of the contract by the appellant. The trial Magistrate gave judgement for the respondent. On Appeal the question in issue was whether the burden of proof lay on the respondent as customer to prove that there had been a fundamental breach of the performance of the contract, or on the appellant as carrier of proving that there had not. The Court quoted from CHESHIRE AND FIFOOT ON THE LAW OF CONTRACT (6th

Edn.) at p.121 which commented on and approved the decision in Hung & Winterbothan (West of England) Ltd. v. B.R.S. (Parcels) Ltd., [1962] 1. Q.B. 617; 1All E.R. 111:“He who makes an allegation must prove it. It is for the plaintiff to make out a prima facie case against the defendant. If he succeeds in this, it is for the defendant to plead and to prove some special defence such as an exemption clause. The burden must then pass to the plaintiff who in turn must plead and prove some reason, such as a breach of fundamental obligation, why the exemption clause is to be disregarded”. The Court then said on p.676:“The commentaries on s.106, the equivalent section of the Indian Evidence Act, do not suggest that there is any essential difference between the English and the Indian Law on the point, and indicate that in general some prima facie evidence must be given by the complainant in order to cast the burden on the adversary. See for instance, SARKAR ON EVIDENCE (10th Edn), p. 843. It is agreed that non-delivery is prima facie evidence of negligence; but the plaintiff in view of the exemption clause cannot succeed unless fundamental breach is established, and in spite of the forceful arguements of counsel for the defendant to the contrary, I am unable to accept that non-delivery is either in itself a fundamental breach or even the

raises such a prima facie case of a fundamental breach as to cast upon defendants by virtue of s.112 of the Evidence Act the burden of disproving

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

[HOUSE OF LORDS.] WOOLMINGTON

APPELLANT; AND

THE DIRECTOR OF PUBLIC PROSECUTIONS 1935 April 5; May 23.

RESPONDENT.

VISCOUNT SANKEY L.C., LORD HEWART LORD ATKIN, LORD TOMLIN, and LORD WRIGHT.

L.C.J.,

Criminal Law - Murder - Onus of Proof - Accident - Unlawful Intention - Direction to the Jury Reasonable Doubt of Guilt - Criminal Appeal Act, 1907 (7 Edw. 7, c. 23), s. 4. In a trial for murder the Crown must prove death as the result of a voluntary act of the prisoner and malice of the prisoner. When evidence of death and malice has been given, the prisoner is entitled to show by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. If the jury are either satisfied with his explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted. Statement of the Law in Foster's Crown Law (1762), p. 255, and summing up of Tindal C.J. in Rex v. Greenacre (1837) 8 C. & P. 35 disapproved. Order of the Court of Criminal Appeal reversed. APPEAL from an order of the Court of Criminal Appeal refusing leave to Reginald Woolmington, the appellant, to appeal against his conviction of the wilful murder of Violet Kathleen Woolmington, who was his wife. The appellant was convicted on February 14, 1935, at Bristol Assizes before Swift J. and a jury. The appellant and his wife were married on August 25, 1934. He was a farm labourer and bore a good character. His age was twenty-one and a half years, and his wife was four years younger. They lived at Castleton, near Sherborne, on the farm of one Cheeseman, the appellant's employer. On November 22, 1934, the appellant's wife left him and went to live with her mother, Lilian Smith, a widow, at 24 Newtown, Milborne Port. The appellant wanted her to go back to him and made efforts to induce her to go back, but she would not. Next door to Mrs. Smith lived a Mrs. Brine, a sister of Mrs. Smith and aunt of the deceased woman. On the morning of December 10, 1934, Mrs. Brine, who was in the back yard of No. 25, heard the appellant's voice saying: "Are you coming back or not?" and "Where's your mother?" Then she heard the back door of No. 24 slam, and then the report of a gun. She looked out of her front window, and saw the appellant. She called to him; he made no reply, but mounted his bicycle and rode away. She went into No. 24, and found her niece lying on the mat. She had been shot through the heart. The appellant gave evidence to the following effect: After a sleepless night on December 9-10 he thought he might frighten his wife into obedience by threatening to shoot himself. On December 10 he went to the farm till 8.20 A.M.; came home to have his breakfast; then went back to the

farm, and took a gun belonging to Mr. Cheeseman, which lay on a shelf in a barn. Near the gun was a box containing two cartridges. With a fret-saw belonging to his father he sawed off part of the barrels and threw that part and the saw into a brook, and loaded the gun with the two cartridges. Then he put the gun under his overcoat in a pocket used for carrying rabbits, and returned home. There he attached to the gun some flex for carrying electric current, and with this he suspended the gun from his right shoulder and under his overcoat; and so equipped he rode on his bicycle to Mrs. Brine's house. There he tapped at the front door; his wife opened it; she was washing clothes in the kitchen. They went into the back room. He said: "Are you coming back or not, Vi?" but got no answer. His wife shut the back door, and they went into the front room. His wife said she would not go back, but had decided to go into service. Then he said, if she would not come back to him he would shoot himself; and, to explain how he meant to do this, and to show her the gun with which he meant to do it, he unbuttoned his overcoat, and brought the gun across his waist. The gun went off; he did not know it was pointing at his wife. She fell to the ground. He did not know what to do. He went out of the house and to his own home. There he saw his mother and told her that he had been up and shot his wife. He threw the gun on a bench in the outhouse and rode to Mr. Cheeseman and said to him: "I shall not be coming to work any more, as I have shot my wife." A note was found in the pocket of the appellant's coat. It was in these terms:"Good bye all. "It is agonies to carry on any longer. I have kept true hoping she would return this is the only way out. They ruined me and I'll have my revenge. May God forgive me for doing this but it is the Best thing. Ask Jess to call for the money paid on motor bike (Wed.). Her mother is no good on this earth but have no more cartridges only 2 one for her and one for me. I am of a sound mind now. Forgive me for all trouble caused "Good bye ALL I love Violet with all my heart Reg." The appellant was cross-examined about the date when this note was written, whether it was before or after the death of his wife. He persisted in his statement that it was written after the death, and gave his explanation of its contents. He said that after having written it he went downstairs and waited for the police; he intended to shoot himself; he went outside and met his father in the lane. He told his father he was going to shoot himself, but his father persuaded him not to. Then the policeman arrived and took him to the police station. When he was charged, he said: "I want to say nothing, except I done it, and they can do what they like. It was jealousy I suppose. Her mother enticed her away from me. I done all I could to get her back, that's all." The appellant was first tried at Taunton on January 23, 1935, before Finlay J. and a jury. After considering their verdict for an hour and twenty-five minutes that jury disagreed. At the trial out of which the present appeal arises Swift J. in his summing-up gave the following direction to the jury: "A charge is made against Reginald Woolmington, the prisoner at the bar, of wilful murder. It is said that on the morning of December 10, about half-past nine, he murdered his wife. That she died whilst he was in that house you will, I should think, have little doubt. It is a matter entirely for you. If you accept his evidence, you will have little doubt that she died in

consequence of a gun-shot wound which was inflicted by a gun which he had taken to this house, and which was in his hands, or in his possession, at the time that it exploded. If you come to the conclusion that she died in consequence of injuries from the gun which he was carrying, you are put by the law of this country into this position: The killing of a human being is homicide, however he may be killed, and all homicide is presumed to be malicious and murder, unless the contrary appears from circumstances of alleviation, excuse, or justification. 'In every charge of murder, the fact of killing being first proved, all the circumstances of accident, necessity, or infirmity are to be satisfactorily proved by the prisoner, unless they arise out of the evidence produced against him; for the law presumeth the fact to have been founded in malice, unless the contrary appeareth.' 1 That has been the law of this country for all time since we had law. Once it is shown to a jury that somebody has died through the act of another, that is presumed to be murder, unless the person who has been guilty of the act which causes the death can satisfy a jury that what happened was something less, something which might be alleviated, something which might be reduced to a charge of manslaughter, or was something which was accidental, or was something which could be justified." Then, after reviewing and commenting upon the evidence, the learned judge added these words: "The Crown has got to satisfy you that this woman, Violet Woolmington, died at the prisoner's hands. They must satisfy you of that beyond any reasonable doubt. If they satisfy you of that, then he has to show that there are circumstances to be found in the evidence which has been given from the witness-box in this case, which alleviate the crime so that it is only manslaughter, or which excuse the homicide altogether by showing that it was a pure accident." The jury, after considering their verdict for an hour and nine minutes, found the appellant guilty of wilful murder. The appellant applied to the Court of Criminal Appeal for leave to appeal against his conviction, but that Court, as stated above, refused the application. The Attorney-General having certified that the decision of the Court of Criminal Appeal involved a point of law of exceptional public importance and that, in his opinion, it was desirable in the public interest that a further appeal should be brought, the present appeal was brought before this House. April 4. T. J. O'Connor K.C. and J. D. Casswell for the appellant. In delivering the judgment of the Court of Criminal Appeal, Avory J. said: "The point, and really the only point, of complaint as regards this summing-up is that the learned judge did not anywhere use the expression that the jury should acquit the accused altogether, or convict him only of manslaughter, if they entertained any reasonable doubt about the truth of his explanation of how his wife came by her death. It may be that it would have been better if the learned judge had in those few words said to the jury that if they entertained reasonable doubt whether they could accept his explanation, they should either acquit him altogether or convict him of manslaughter only." This is precisely the exception which the appellant takes to the summing-up of Swift J.; and the complaint which he makes against the order of the Court of Criminal Appeal is that the learned judges did not take a more serious view of the omission of the trial judge to make it quite clear that the onus still lay upon the prosecution. If at the end of a trial for murder a reasonable doubt remains in the minds of the jury whether the crime has been committed, it is their duty to acquit. However the matter may have been regarded in former years, at the present time the Criminal Law rests on the foundation that, apart from statutory enactment to the contrary, the prosecution must prove the guilt of the prisoner; otherwise he must be acquitted. Earlier authorities, such as

Sir Michael Foster in the Introduction to the Discourse of Homicide in that learned judge's work on Crown Law 2; Mackalley's case (1611) 9 Co. Rep. 65 b; Rex v. Legg (1674) Kelyng, 27; Rex v. Oneby (1727) 2 Ld. Raym. 1484, 1493; East, Pleas of the Crown (1803), p. 224; Rex v. Greenacre 8 C. & P. 35, 42; and Blackstone, Commentaries 3, are concerned primarily with the definition of homicide and malice. Sir Michael Foster's description of murder is repeated in Archbold's Criminal Pleading and Evidence 4 and Russell on Crimes.5 The proper direction to the jury is thai which was given by Finlay J. at the former trial. That learned judge said: "The case for the prosecution is deliberate shooting. The defence is, Not Guilty of murder. They" (the prosecution) "prove the killing, and in the absence of explanation that is murder. The defence say 'Excusable, because accidental.' Consider whether you entertain the slightest doubt that this was a deliberate killing. If you have no doubt, it is your duty to convict. .... If the result of a dispassionate survey is to leave a reasonable doubt in your minds, then your duty as well as your pleasure is to acquit." It is for the prosecution to satisfy the jury on all the evidence that the prisoner is not an innocent man, but a guilty man. They must take the whole of the evidence into consideration and then it is not for the prisoner to say: "My explanation is such that it must satisfy you." It is enough for him if he says: "This is my explanation," and if the jury on considering it are left in a reasonable doubt. Then it is their duty to acquit the prisoner. "Where, a prima facie case having been made against him, the defendant offers an explanation, the jury must be directed that the onus of proof of guilt is still on the prosecution, and that, if on the whole evidence they are in doubt, they should acquit": Roscoe, Criminal Evidence. 6 This is the result of numerous decisions: Rex v. Stoddart (1909) 2 Cr. App. R. 217, 244; Rex v. Davies (1913) 29 Times L. R. 350; 8 Cr. App. R. 211; Rex v. Abramovitch (1914) 31 Times L. R. 88; Rex v. Aubrey (1915) 11 Cr. App. R. 182; Rex v. Grinberg (1917) 33 Times L. R. 428; Rex v. Sanders (1919) 14 Cr. App. R. 11; Lawrence v. The King. [1933] A. C. 699, 706 [The following cases were also referred to: Rex v. Sturgess (1913) 9 Cr. App. R. 120; Rex v. Davies (1913) 29 Times L. R. 350; 8 Cr. App. R. 211; Rex v. Hopper (1915) 11 Cr. App. R. 136; Rex v. Brain. (1918) 13 Cr. App. R. 197] April 5. J. G. Trapnell K.C. and Reginald Knight for the respondent. The killing of any human creature is homicide: Blackstone, Commentaries. 7 Felonious homicide is the killing of a human creature without justification or excuse. 8Manslaughter is the unlawful killing of another without malice either express or implied. 9 "When a man of sound memory, and of the age of discretion, unlawfully killeth .... any reasonable creature in rerum natura under the king's peace, with malice forethought, either expressed by the party, or implied by law" 10 this is murder. Then comes the question of proving the commission of the crime. The Crown must prove that the prisoner killed the man. The prisoner knows how he did it; formerly he could not give evidence, but he still knew. The dead man knew, but cannot say. In the absence of evidence of others, the Court must needs resort to inference. It considers how the death wound was inflicted; by a gun, or a knife, or a hammer or other lethal weapon. Such facts supply evidence of malice prepense. When all the knowledge is in the mind of the accused, it is most reasonable that he should state, or his advocate should suggest, how the death occurred. It is not necessary to press the point that, in the absence of other available evidence, killing is per se prima facie evidence of malice, because in the present case death was inflicted by a lethal weapon; but even so, one cannot with a light heart dismiss the statement of so high an authority as Sir Michael Foster 11, followed in East 12; Blackstone, Commentaries13; and repeated in Archbold, Criminal Pleading and Evidence 14, and Halsbury, Laws of England. 15 Moreover, the appellant's own explanation, that he intended to

frighten his wife into obedience by threatening to shoot himself, and showing her the gun which he meant to use, discloses an unlawful intention and is sufficient evidence of malice aforethought. The additional facts of the note found in the pocket of his coat, and the words: "May God forgive me for doing this but it is the best thing. .... Her mother is no good .... but I have no more cartridges only 2 one for her and one for me," show first, that the note was written before the deed, and secondly that he intended to shoot his wife and himself and that, if he had had a third cartridge, he would have used it also. Those facts together show that he went to the house with a malicious intention. If in pursuing a malicious intention a man, even by accident, kills another person, that is murder. In that view the case is a proper one for the application of s. 4 of the Criminal Appeal Act, 1907. Counsel

was

not

called

on

in

reply.

At the end of the argument for the respondent VISCOUNT SANKEY L.C. announced that the order of the Court of Criminal Appeal would be reversed and that the conviction would be quashed; and that their Lordships would give their reasons at a later date. May 23. VISCOUNT SANKEY L.C.My Lords, the appellant, Reginald Woolmington, after a trial at the Somerset Assizes at Taunton on January 23, at which, after an absence of one hour and twenty-five minutes, the jury disagreed, was convicted at the Bristol Assizes on February 14 of the wilful murder of his wife on December 10, 1934, and was sentenced to death. He appealed to the Court of Criminal Appeal, substantially upon the ground that the learned judge had misdirected the jury by telling them that in the circumstances of the case he was presumed in law to be guilty of the murder unless he could satisfy the jury that his wife's death was due to an accident. The appeal came before the Court of Criminal Appeal upon March 18 and was dismissed. The Court said "it may be that it might have been better" had the learned judge who tried the case said to the jury that if they entertained reasonable doubt whether they could accept his explanation they should either acquit him altogether or convict him of manslaughter only; but, relying upon s. 4, sub-s. 1, of the Criminal Appeal Act, 1907, which provides "that the court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred," they dismissed the appeal. Thereupon the Attorney-General gave his fiat certifying that the appeal of Reginald Woolmington involved a point of law of exceptional public importance and that in his opinion it was desirable in the public interest that a further appeal should be brought. The matter now comes before your Lordships' House. The facts are as follows. Reginald Woolmington is 21 years old. His wife, who was killed, was 17 years old last December. They had known each other for some time and upon August 25 they were married. Upon October 14 she gave birth to a child. Shortly after that there appears to have been some quarrelling between them and she left him upon November 22 and went to live with her mother. Woolmington apparently was anxious to get her to come back, but she did not come. The prosecution proved that at about 9.15 in the morning of the 10th Mrs. Daisy Brine was hanging out her washing at the back of her house at 25 Newtown, Milborne Port. While she was engaged in that occupation, she heard voices from the next door house, No. 24. She knew that in

that house her niece, Reginald Woolmington's wife, was living. She heard and could recognize the voice of Reginald Woolmington saying something to the effect "are you going to come back home?" She could not hear the answer. Then the back door in No. 24 was slammed. She heard a voice in the kitchen but could not tell what it said. Then she heard the sound of a gun. Upon that she looked out of the front window and she saw Reginald Woolmington, whose voice she had heard just before speaking in the kitchen, go out and get upon his bicycle, which had been left or was standing against the wall of her house, No. 25. She called out to him but he gave no reply. He looked at her hard and then he rode away. According to Reginald Woolmington's own story, having brooded over and deliberated upon the position all through the night of December 9, he went on the morning of the 10th in the usual way to the milking at his employer's farm, and while milking conceived this idea that he would take the old gun which was in the barn and he would take it up that morning to his wife's mother's house where she was living, and that he would show her that gun and tell her that he was going to commit suicide if she did not come back. He would take the gun up for the purpose of frightening her into coming back to him by causing her to think that he was going to commit suicide. He finished his milking, went back to his father's house, had breakfast and then left, taking with him a hack saw. He returned to the farm, went into the barn, got the gun, which had been used for rook shooting, sawed off the barrels of it, then took the only two cartridges which were there and put them into the gun. He took the two pieces of the barrel which he had sawn off and the hack saw, crossed a field about 60 yards wide and dropped them into the brook. Having done that, he returned on his bicycle, with the gun in his overcoat pocket, to his father's house and changed his clothes. Then he got a piece of wire flex which he attached to the gun so that he could suspend it from his shoulder underneath his coat, and so went off to the house where his wife was living. He knocked at the door, went into the kitchen and asked her: "Are you coming back?" She made no answer. She came into the parlour, and on his asking her whether she would come back she replied she was going into service. He then, so he says, threatened he would shoot himself, and went on to show her the gun and brought it across his waist, when it somehow went off and his wife fell down and he went out of the house. He told the jury that it was an accident, that it was a pure accident; that whilst he was getting the gun from under his shoulder and was drawing it across his breast it accidentally went off and he was doing nothing unlawful, nothing wrong, and this was a pure accident. There was considerable controversy as to whether a letter in which he set out his grievances was written before or after the above events. But when he was arrested at 7.30 on the evening of the 10th and charged with having committed murder he said: "I want to say nothing, except I done it, and they can do what they like with me. It was jealousy I suppose. Her mother enticed her away from me. I done all I could to get her back. That's all." The learned judge in summing-up the case to the jury said:"If you accept his evidence, you will have little doubt that she died in consequence of a gunshot wound which was inflicted by a gun which he had taken to this house, and which was in his hands, or in his possession, at the time that it exploded. If you come to the conclusion that she died in consequence of injuries from the gun which he was carrying, you are put by the law of this country into this position: The killing of a human being is homicide, however he may be killed, and all homicide is presumed to be malicious and murder, unless the contrary appears from circumstances of alleviation, excuse, or justification. 'In every charge of murder, the fact of killing being first proved, all the circumstances of accident, necessity, or infirmity are to be satisfactorily proved by the prisoner, unless they arise out of the evidence produced against him: for the law will presume the fact to have been founded in malice until the contrary appeareth.'

That has been the law of this country for all time since we had law. Once it is shown to a jury that somebody has died through the act of another, that is presumed to be murder, unless the person who has been guilty of the act which causes the death can satisfy a jury that what happened was something less, something which might be alleviated, something which might be reduced to a charge of manslaughter, or was something which was accidental, or was something which could be justified." At the end of his summing-up he added: "The Crown has got to satisfy you that this woman, Violet Woolmington, died at the prisoner's hands. If they must satisfy you of that beyond any reasonable doubt. If they satisfy you of that, then he has to show that there are circumstances to be found in the evidence which has been given from the witness-box in this case which alleviate the crime so that it is only manslaughter or which excuse the homicide altogether by showing that it was a pure accident." In the argument before the Court of Criminal Appeal cases were cited by the learned counsel on either side and textbooks of authority were referred to, but the learned judges contented themselves with saying "there can be no question to start with that the learned judge laid down the law applicable to a case of murder in the way in which it is to be found in the old authorities." They repeated the learned judge's words and said: "No doubt there is ample authority for that statement of the law." They then relied, as I have already mentioned, upon the proviso to s. 4 of the Criminal Appeal Act, 1907, and dismissed the appeal. It is true as stated by the Court of Appeal that there is apparent authority for the law as laid down by the learned judge. But your Lordships' House has had the advantage of a prolonged and exhaustive inquiry dealing with the matter in debate from the earliest times, an advantage which was not shared by either of the Courts below. Indeed your Lordships were referred to legal propositions dating as far back as the reign of King Canute (994-1035). But I do not think it is necessary for the purpose of this opinion to go as far back as that. Rather would I invite your Lordships to begin by considering the proposition of law which is contained in Foster's Crown Law, written in 1762, and which appears to be the foundation for the law as laid down by the learned judge in this case. It must be remembered that Sir Michael Foster, although a distinguished judge, is for this purpose to be regarded as a text-book writer, for he did not lay down the doctrine in any case before him, but in an article which is described as the "Introduction to the Discourse of Homicide." In the folio edition, published at Oxford at the Clarendon Press in 1762, at p. 255, he states: "In every charge of murder, the fact of killing being first proved, all the circumstances of accident, necessity, or infirmity are to be satisfactorily proved by the prisoner, unless they arise out of the evidence produced against him; for the law presumeth the fact to have been founded in malice, until the contrary appeareth. And very right it is, that the law should so presume. The defendant in this instance standeth upon just the same foot that every other defendant doth: the matters tending to justify, excuse, or alleviate, must appear in evidence before he can avail himself of them." Now the first part of this passage appears in nearly every text-book or abridgment which has been since written. To come down to modern times, the passage appears in Stephen's Digest of the Criminal Law 16; also in the well known treatise of Archbold, Criminal Pleading, Evidence and Practice 4, which is the companion of lawyers who practise in the criminal courts. It also appears almost textually in Russell on Crimes 5 and in the second edition of Halsbury's Laws of England 15, which purports to state the law as on May 1, 1933, where it is said: "When it has been proved that one person's death has been caused by another, there is a prima facie presumption of law that the act of the person causing the death is murder, unless the contrary

appears from the evidence either for the prosecution or for the defence. The onus is upon such person when accused to show that his act did not amount to murder." The authority for that proposition is given as Foster, pp. 255, 290, and also the case of Rex v. Greenacre. 8 C. & P. 35 The question arises, Is that statement correct law? Is it correct to say, and does Sir Michael Foster mean to lay down, that there may arise in the course of a criminal trial a situation at which it is incumbent upon the accused to prove his innocence? To begin with, if that is what Sir Michael Foster meant, there is no previous authority for his proposition, and I am confirmed in this opinion by the fact that in all the text-books no earlier authority is cited for it. Before, however, one considers the earlier criminal law several facts have to be remembered. First, it was not till 1907 that the Court of Criminal Appeal was set up. It is perfectly true that from time to time there have been famous occasions on which the Judges and Barons were called together to give their opinion upon the law bearing on murder. Examples of this will be found; in the year 1611, in the case of Mackalley 9 Co. Rep. 65b, all the Judges and Barons were moved to give their opinion; in 1706, in the case of Reg. v. Mawgridge (1706) Kelyng, 119; 17 St. Tr. 57, which case was argued before all the Judges and all of them except Lord Chief Justice Trevor were of opinion that Mawgridge was guilty of murder; and in 1843 in the case of Reg. v. M'Naughton (1843) 4 St. Tr. (N. S.) 847, where all the Judges gave answers to your Lordships' House upon the test of insanity. M'Naughton's case (1843) 4 St. Tr. (N. S.) 847 stands by itself. It is the famous pronouncement on the law bearing on the question of insanity in cases of murder. It is quite exceptional and has nothing to do with the present circumstances. In M'Naughton'scase (1843) 4 St. Tr. (N. S.) 847 the onus is definitely and exceptionally placed upon the accused to establish such a defence. See Rex v. Oliver Smith (1910) 6 Cr. App. R. 19, where it is stated that the only general rule that can be laid down as to the evidence in such a case is that insanity, if relied upon as a defence, must be established by the defendant. But it was added that all the judges had met and resolved that it was not proper for the Crown to call evidence of insanity, but that any evidence in the possession of the Crown should be placed at the disposal of the prisoner's counsel to be used by him if he thought fit. See also Archbold, 29th Edition. 17, It is not necessary to refer to M'Naughton's case (1843) 4 St. Tr. (N. S.) 847 again in this judgment, for it has nothing to do with it. It is true that at a later period certain cases were reserved by the judges for the consideration of the Court of Crown Cases Reserved, but many of the propositions with regard to criminal law are contained either in the summing-up of the judges or in text-books of authority as distinguished from a Court sitting in banc. The learned author of Stephen's Digest of the Criminal Law 18 has an interesting note on the definition of murder and manslaughter. But his remarks are rather directed to the ingredients of the crime than to the proof of it. None the less, the author does not hesitate to tread a path of very robust criticism of the previous authorities. He speaks of the "intricacy, confusion and uncertainty of this branch of the law." He refers to the definition of Coke (1552-1623) and says "these passages, overloaded as Coke's manner is, with a quantity of loose, rambling gossip, form the essence of his account of murder." He describes Coke's chapter on manslaughter as "bewildering" and adds that Hale (1609-1676) treats manslaughter in a manner so meagre an yet so confused that no opinion of it can be obtained except by reading through chapters 38 to 40 and trying to make sense of them, and concludes by saying (p. 466) that Sir Michael Foster "to some extent mitigates the barbarous rule laid down by Coke as to unintentional personal violence." Next it must be remembered that prisoners were not entitled to be represented by counsel, except in cases of felony, where counsel might argue the law on their behalf.

Thirdly, it must not be forgotten that the prisoner himself was not allowed to give evidence 19 before the Act passed in 1898. Bearing these considerations in mind, I now turn to some of the cases cited to us. I doubt whether in any of the early ones the question of the burden of proof was considered. Rather they were concerned with the ingredients of the crime of murder. One of the first difficulties was to settle the meaning of express and implied malice. It was not till 1825 that Bayley J, in Bromage v. Prosser (1825) 4 B. & C. 247, gave his famous definition of malice as meaning a wrongful act, done intentionally without just cause or excuse. The older cases were rather concerned to give examples of what might be malice. This was so in Mackalley's case. 9 Co. Rep. 65 b the prisoner was there accused of murdering a serjeant of London. The Courts were already considering cases of express or implied malice, and the passage in Coke appears simply to mean that if a man does acts calculated to kill, and actually does kill, that is evidence of malice or intent; in other words, evidence of one of the ingredients of murder, but it does not seem to be at all concerned with onus of proof or to support the statement of Sir Michael Foster on that point. One of the most famous of the earlier treatises on criminal law was the History of the Pleas of the Crown by Sir Matthew Hale. That celebrated judge died on Christmas Day, 1675. It was known that he had left a treatise on the subject, and upon November 29, 1680, it was ordered by the House of Commons that the executors of Sir Matthew Hale be desired to print the manuscript relating to Crown Law and a Committee be appointed to take care of the printing thereof. It is not said that anything appears in Hale suggesting that the burden of proving his innocence lay on the prisoner. Looking at the edition of 1800 20 we find him again concerned with what malice is. It is headed "Concerning murder by malice implied presumptive, or malice in law," and Mackalley's case 9 Co. Rep. 65 b is duly cited. As appears from Foster's Pleas of the Crown, Sir Michael Foster was familiar with Hale's treatise (see his preface), and although in the course of his book he makes reference to Hale, he gives no authority for the proposition which is under discussion. It cannot be doubted that at that time in English Courts of justice the law of evidence was in a very fluid condition. Indeed in some civil cases it differed on different circuits. See Weeks v. Sparke (1813) 1 M. & S. 679, 687, 688 and also the note xx. in Stephen's Digest of the Law of Evidence. 21 It was only later that the Courts began to discuss such things as presumption and onus. In Wigmore on Evidence 22, a reference is made to the judgment of Weaver J. in the case of The State v. Brady (1902) Ia. 91 N. W. 801. This was cited in the case of Rex v. Stoddart 2 Cr. App. R. 217, 233:"The use of the terms 'presumption of guilt' and 'prima facie evidence of guilt' with reference to the possession of stolen goods has perhaps been too long indulged in by Courts and text-writers to be condemned; but we cannot resist the conclusion that, when so employed, these expressions are unfortunate, and often misleading. .... 'Presumptions' of guilt and 'prima facie' cases of guilt in the trial of a party charged with crime mean no more than that from the proof of certain facts the jury will be warranted in convicting the accused of the offence with which he is charged." We were referred to the case of Rex v. Legg(6) Kelyng, 27, where it is said that at the Newgate Session in 1674 "one John Legg, being indicted for the murder of Mr. Robert Wise, it was upon the evidence agreed that if one man kill another, and no sudden quarrel appeareth, this is murder." Mackalley'scase 9 Co. Rep. 65 b is quoted as an authority and the report goes on: "and it lieth upon the party indicted to prove the sudden quarrel." With regard to Kelyng's Reports, the critics have greatly differed. Sir John Kelyng was Chief Justice of the King's Bench. He died in 1671 and whatever opinion may be held about him as a judge, upon which see Foss's Biographical Dictionary of The Judges of England 23, the critics have differed greatly upon the

value of his Reports. Lord Campbell in his Life of Kelynge, Lives of the Chief Justices 24, says "He compiled a folio volume of decisions in criminal cases, which are of no value whatever." But, on the other hand, there are others who regard the book as of high authority: see Wallace on 25 The Reporters . The report of Legg's case Kelyng, 27 is meagre and unsatisfactory and cannot, I think, be held to mean that unless the prisoner prove the sudden quarrel, he must be convicted of murder. The word "onus" is used indifferently throughout the books, sometimes meaning the next move or next step in the process of proving or sometimes the conclusion of the whole matter. Mawgridge's case Kelyng, 119; 17 St. Tr. 57, already referred to, was cited to us from Kelyng's Reports, but it was not reported by Kelyng for the simple reason that it was not tried till 1706. Campbell, in the Lives of the Chief Justices 26, says it was reported by Holt and makes caustic comments on Holt's English composition. It was added by Holt to his Edition of Kelyng's Reports and is described as a case of "great expectation" and gives the history of murder trials in English Courts from the earliest times. The case, however, is no authority for saying that the prisoner at any time is called upon to prove his innocence; quite the contrary. It is another of those cases which deal with malice and with what is such provocation as will make the act of killing to be manslaughter only. In Hawkins' Pleas of the Crown 27: "It is also agreed, that no one can excuse the killing another, by setting forth in a special plea, that he did it by misadventure, or se defendendo, but that he must plead 'not guilty,' and give the special matter in evidence." This points to the fact that the verdict must be given not on any special pleading given by the prisoner but upon and as the result of the whole of the case, and it nowhere suggests that the burden of proof either at the beginning or at the end of a case is not on the prosecution. The case of Rex v. Greenacre 8 C. & P. 35, 42 was certainly heard by a very distinguished judge, Tindal, C.J. But it is to be observed that the dictum relied upon by the prosecution in this case namely: "that where it appears that one person's death has been occasioned by the hand of another, it behoves that other to show from evidence, or by inference from the circumstances of the case, that the offence is of a mitigated character, and does not amount to the crime of murder," was contained in the summing-up of the learned judge to the jury. It is the passage in Sir Michael Foster and this summing-up which are usually relied on as the authority for the proposition that at some particular time of a criminal case the burden of proof lies on the prisoner to prove his innocence. The presumption of innocence in a criminal case is strong: see Taylor On Evidence 28, and it is doubtful whether either of these passages means any such thing. Rather do I think they simply refer to stages in the trial of a case. All that is meant is that if it is proved that the conscious act of the prisoner killed a man and nothing else appears in the case, there is evidence upon which the jury may, not must, find him guilty of murder. It is difficult to conceive so bare and meagre a case, but that does not mean that the onus is not still on the prosecution. If at any period of a trial it was permissible for the judge to rule that the prosecution had established its case and that the onus was shifted on the prisoner to prove that he was not guilty and that unless he discharged that onus the prosecution was entitled to succeed, it would be enabling the judge in such a case to say that the jury must in law find the prisoner guilty and so make the judge decide the case and not the jury, which is not the common law. It would be an entirely different case from those exceptional instances of special verdicts where a judge asks the jury to find certain facts and directs them that on such facts the prosecution is entitled to succeed. Indeed, a consideration of such special verdicts shows that it is not till the end of the evidence that a verdict can properly be found and that at the end of the evidence it is not for the prisoner to

establish his innocence, but for the prosecution to establish his guilt. Just as there is evidence on behalf of the prosecution so there may be evidence on behalf of the prisoner which may cause a doubt as to his guilt. In either case, he is entitled to the benefit of the doubt. But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence. This is the real result of the perplexing case of Rex v. Abramovitch (1914) 11 Cr. App. R. 45, which lays down the same proposition, although perhaps in somewhat involved language. Juries are always told that, if conviction there is to be, the prosecution must prove the case beyond reasonable doubt. This statement cannot mean that in order to be acquitted the prisoner must "satisfy" the jury. This is the law as laid down in the Court of Criminal Appeal in Rex v. Davies 29 Times L. R. 350; 8 Cr. App. R. 211, the headnote of which correctly states that where intent is an ingredient of a crime there is no onus on the defendant to prove that the act alleged was accidental. Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. When dealing with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused. It may prove malice either expressly or by implication. For malice may be implied where death occurs as the result of a voluntary act of the accused which is (i.) intentional and (ii.) unprovoked. When evidence of death and malice has been given (this is a question for the jury) the accused is entitled to show, by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. If the jury are either satisfied with his explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted. It is not the law of England to say, as was said in the summing-up in the present case: "if the Crown satisfy you that this woman died at the prisoner's hands then he has to show that there are circumstances to be found in the evidence which has been given from the witnessbox in this case which alleviate the crime so that it is only manslaughter or which excuse the homicide altogether by showing it was a pure accident." If the proposition laid down by Sir Michael Foster 29 or in the summing-up in Rex v. Greenacre 8 C. & P. 35, 42 means this, those authorities are wrong. We were then asked to follow the Court of Criminal Appeal and to apply the proviso of s. 4 of the Criminal Appeal Act, 1907, which says: "the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred." There is no doubt that there is ample jurisdiction to apply that proviso in a case of murder. The Act makes no distinction between a capital case and any other case, but we think it impossible to apply it in the present case. We cannot say that if the jury had been properly directed they would have inevitably come to the same conclusion. In the result we decline to apply the proviso and, as already stated, we order that the appeal

should be allowed and the conviction quashed. My noble and learned friend Lord Atkin, who has to preside at the Privy Council to-day, asks me to say that he concurs in the opinion which I have delivered. LORD

HEWART

LORD

TOMLIN.My

C.J.My Lords,

Lords, I

I

concur.

also

concur.

LORD WRIGHT.My Lords, I also concur. Order of the Court of Criminal Appeal reversed, and conviction quashed: Further ordered that the cause be remitted back to the Court of Criminal Appeal to do therein as shall be just and consistent with this judgment. Lords' Journals, April 5, 1935. Solicitors for appellant: C. Butcher & Simon Burns, for Clarke, Willmott & Clarke, Taunton. For the respondent: The Director of Public Prosecutions. 1

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

dismissed Kelyng with a very short paragraph. .... F.P.] 26 Vol. 2, p. 176. 27 8th Ed. (Curwood), 1824, Vol. 1, p. 88, s. 25. 28 11th Ed. (1920), ss. 113, 114, Vol. 1, pp. 107, 108; 12th Ed. (1931), Vol. 1, pp. 107, 108. 29 Ante, p. 474.

ACT OF GOD Ryde v Bushell and another [1967] 1 EA 817 (CAN) Division: Court of Appeal at Nairobi Date of judgment: 17 November 1967 Case Number: 15/1967 (183) Before: Sir Charles Newbold P, Duffus and Law JJA Sourced by: LawAfrica Appeal from: The High Court of Kenya – Chanan Singh, J. [1] Act of God – Requirements for successful plea of – Whether absolves party from liability for damage suffered following performance of part of an obligation – Burden of proof – Heavy rain. [2] Damages – Assessment – Breach of covenant to plant coffee – Damages to be assessed at time of the breach. [3] Landlord and Tenant – Breach of covenant to plant coffee – Measure of damages. Editor’s Summary The plaintiffs/respondents leased a farm to the defendant/appellant in 1960 for a term of five years. The lease contained covenants by the defendant to plant a certain area with coffee and to manage the farm in a husbandlike manner. After the end of the lease the plaintiffs sued the defendant for (inter alia) damages for breach of these covenants in not planting the required area with coffee. The defendant admitted some breach, but disputed the extent of the breach and also the quantum of the damages. The evidence given at the trial was unclear, but the trial judge found that the defendant had failed to plant 23 3/4 acres and gave judgment for K. Shs. 30,000/(i.e. at a rate of some K. Shs. 1,260/- per acre) reducing the amount because he was unsure of what permanent damage had Page 818 of [1967] 1 EA 817 (CAN) been done. One of the pleas raised by the defendant was that as to some of the area he had had to replant it because of what he described in evidence as a “deluge” at the end of 1960 which swept away part of his original planting, and that this deluge was an Act of God which subsequent to performance destroyed his work; but the defendant called no evidence about the normal rainfall in the district or about the normal precautions to be taken. Held – (i) the plea of Act of God is available to relieve a defendant from liability for damage suffered following the performance of part of his obligation, and not merely to absolve a person from the performance of an obligation;

(ii) nothing can be said to be an Act of God unless it is proved by the person setting up the plea to be due exclusively to natural causes of so extraordinary a nature that it could not reasonably have been foreseen and the results of which occurrence could not have been avoided by any action which should reasonably have been taken by the person who seeks to avoid liability by reason of the occurrence; (iii) the evidence was insufficient to support the plea in this case; (iv) on the issue of what acreage was actually planted and maintained in coffee the plaintiffs on whom the onus lay and failed to prove the extent of the default; (v) damages are to be assessed at the time of the breach and the plaintiffs should recover the difference in value of the land at that time. Appeal and cross-appeal allowed in part. Damages increased in amount. Appellant to have one quarter of his costs of the appeal. Respondents to have costs of cross-appeal. No cases referred to in judgment. The following judgments were read: Judgment Sir Charles Newbold P: In May 1960 an indenture of lease was executed whereby the two plaintiffs, as proprietors, leased to the defendant a farm for five years from April 1, 1960. Under cl. 2 (12) of the lease the defendant undertook: “To plant during each year of the term hereby created an area consisting of not less than ten (10) acres with young coffee . . . Provided that the maximum area to be planted shall not exceed fifty acres, which fifty acres shall include any area already planted with coffee . . .” The lease also included covenants by the defendant “2(6) To farm, cultivate, manure and manage the whole of the demised premises in a good and husbandlike manner according to the most approved methods of husbandry practised in the district . . .” and “2(15) To yield up the premises at the expiration of the tenancy in such a state of repair, cultivation and management as shall be in compliance of the tenants covenants hereinbefore contained.” On the termination of the tenancy a dispute arose between the plaintiffs and the defendant relating to the performance by the defendant of his covenants under the lease and eventually the plaintiffs sued the defendant. The plaint included a number of claims but the only claim which is relevant to this appeal is the claim by the plaintiffs to the effect that the defendant failed to plant and maintain coffee in accordance with the requirements of the defendant’s covenants. Page 819 of [1967] 1 EA 817 (CAN) The defendant did not dispute some breach of his covenants, but disputed the extent of the breach and the amount of damages which he would have to pay for any breach. As the case, so far as the plaintiffs were concerned, to a large extent turned on the area under coffee cultivation at the commencement of the lease and the area under coffee cultivation on the termination of the lease, I should have thought it would have been extremely simple for either the plaintiffs or the defendant or both to have brought evidence which would have clearly established those simple facts. I should, however, have been wrong in so thinking. There is a great paucity of evidence on those two simple facts and such evidence as does exist is most confusing. Since the case for the defendant rests to a large extent upon, to quote from para. 16 of the defence, “extensive flooding from exceptional rains beyond the control of the defendant”, which rains appear from the defendant’s evidence to have fallen upon a particular day, I should also have thought that it

would have been a simple matter for clear evidence on this to have been called by the defendant. I should, however, have been equally wrong in so thinking. In essence the plaintiffs claim that the defendant had failed to plant and maintain with coffee 35 1/2 acres in accordance with the terms of the lease; and they claim damages for that failure, which damages amounted to £110 an acre, giving a total of £3,905. In essence the defendant admits a breach of his obligation in failing to plant 6 3/4 acres and he submits that the damages resulting therefrom were £450. The judge, in an admirably clear judgment, held that the defendant had failed to plant 23 3/4 acres and that the damage which the plaintiffs had suffered therefrom amounted to £1,500; and on this aspect of the case he gave judgment for the plaintiffs for £1,500. From that judgment the defendant has appealed and the plaintiffs have crossappealed. With effect from January 1, 1964, by a Government Order, any further planting of new areas with coffee was prohibited. It was agreed therefore at the trial and before us that the defendant could not be required to comply with his obligation to plant after that date. This left a period of 3 3/4 years in which the defendant’s obligation to plant existed and the judge, on the assumption that the area under coffee cultivation at the commencement of the lease was eleven acres, held that during that period the defendant should have planted a minimum total of 36 3/4 acres. Counsel for the defendant accepted that this figure was correct; and counsel for the plaintiffs, although he submitted that the figure should have been slightly more, did not seriously dispute it. For reasons I shall subsequently give I consider that the area under coffee at the beginning of the lease was only about five acres, with the result that the minimum acreage which the defendant should have planted is 37 1/2 acres. As, however, the difference is small and the acreage in question subject to considerable uncertainty I see no reason to interfere with the judge’s conclusion that the amount of acreage which the defendant should have planted and maintained was 36 3/4 acres. As I have already said, there is considerable uncertainty as to what acreage was under coffee at the beginning of the lease and what acreage was under coffee at the end of the lease. Inasmuch as it was for the plaintiffs to prove any breach of the covenants on the part of the defendant the plaintiffs have no ground of complaint if any uncertainty is resolved in favour of the defendant. There was some evidence for the plaintiffs that the only new area in coffee after the termination of the lease amounted to about three acres. This evidence was most vague and the judge does not appear to have accepted it, as in the main he based his determination of the acreage planted on the evidence of the defendant. That evidence related more to the number of trees planted than to the acreage planted; but by using an agreed figure of trees per acre at the particular spacing adopted it is possible to translate the number of trees into acres. Doing this, the evidence of the defendant was that he planted thirteen acres in 1960, eight acres in 1962, Page 820 of [1967] 1 EA 817 (CAN) and nine acres in 1963, making a total of thirty acres against an obligation to plant 36 3/4 acres, leaving a failure to plant 6 3/4 acres. These figures, however, do not correspond with other parts of his evidence where he stated that by 1962 he had planted eighteen acres of new coffee and that by the end of 1963 there was a total of twenty-four acres under coffee, including coffee planted before the lease. The coffee planted before the lease has been variously stated on behalf of the plaintiffs to be eleven acres, seven acres and a little more than five acres. The judge, in arriving at his conclusion that the defendant had planted only thirteen acres, did not credit the defendant with the eight acres planted in 1962, because they were planted in the thirteen acres already planted in 1960, and, apparently, because the defendant could not escape liability by reason of an act of God, and he appears to have overlooked the nine acres planted in

1963. The defendant in his appeal claims that the judge was wrong in refusing to give credit for the 1962 planting and in overlooking the 1963 planting. I agree that the judge seems to have overlooked the 1963 planting and that there will have to be some adjustment of the acreage which the judge found the defendant had failed to plant in accordance with his obligations. As regards the planting of eight acres in 1962 in the thirteen acres planted in 1960, the defendant said this was caused by the fact that at the end of 1960 there was a deluge – 3.47 inches of rain in forty minutes – which washed away ninety per cent. of the trees planted in the thirteen acres. When he planted eight acres in 1962 he did so in the thirteen acres, most of the plants in which had been washed away, and he claims to be entitled to credit in respect of both the thirteen acres and the eight acres. In effect this is a plea that he had performed his obligation to plant and that subsequent to performance his work had been destroyed by an act of God and that the loss should not fall on his shoulders. This plea is not strictly in accord with the defence which refers merely to “exceptional rains beyond the control of the defendant”. The case, however, has always been conducted on the basis that the defendant was seeking release from any further performance of his obligation by reason of an act of God and I think it right that this court should decide the matter on that basis. The plea of an act of God is normally set up to absolve a person from the performance of an obligation. In this case it is set up to relieve the defendant from liability for damage suffered following the performance of part of his obligation. I see no reason why the plea should not be available to the defendant for that purpose as I am unable, in this respect, to draw a distinction between a failure to perform an obligation and a failure to produce the results of the performance of an obligation. If an act of God absolves in the one case then it should absolve in the other. Nor to my mind does it make any difference whether the obligation is imposed by law, in which case according to the old authorities in England performance is excused by an act of God, or is imposed by contract, in which case according to those authorities performance was not excused by an act of God, unless it is manifest from the clear words of the contract that the obligation is absolute. But before the plea can succeed it must be established that it was an act of God which prevented performance or which destroyed the results of performance. Nothing can be said to be an act of God unless it is an occurrence due exclusively to natural causes of so extraordinary a nature that it could not reasonably have been foreseen and the results of which occurrence could not have been avoided by any action which should reasonably have been taken by the person who seeks to avoid liability by reason of the occurrence. It is for the person setting up the plea of act of God to prove the various facts which constitute an act of God. In this case what has been proved is a heavy rainfall which washed away young coffee seedlings. The defendant described it as a “deluge” resultant from a fall of nearly 3 1/2 inches in forty minutes. There is absolutely no other evidence from anyone as to this rainfall, as Page 821 of [1967] 1 EA 817 (CAN) to its extraordinary nature, or as to what precautions, if any, should reasonably be taken to guard newly planted coffee seedlings from erosion caused by heavy rain. The judge merely described the coffee as being washed away by “heavy rains”. He made no finding as to its extraordinary nature or as to its intensity being such that no reasonable precaution taken by the defendant would have been of any avail. The judge, parenthetically and without giving any reason, seems to accept that the damage was caused by an act of God. The plaintiffs challenge this finding in their cross-appeal, submitting that there is no evidence of any standard in the area in question which could determine what would be a rainfall of an extraordinary nature, nor any evidence that any reasonable precaution against the results of heavy rain would have been unavailing. The

defendant asks this court, which is a court of an agricultural country, to take judicial notice of the normal intensity of rainfall and of the erosive effect of heavy rain. I am prepared to take judicial notice in a broad way of both these facts; but I cannot do so to the extent of coming to the conclusion, unaided by any evidence, that the rainfall in question in the area in question was of so extraordinary a nature that it could not reasonably have been foreseen and that no precautions which the defendant could reasonably have taken would have prevented or reduced the effect of the rain. Thus I do not consider that the defendant has proved that he is excused from his obligation to yield up on the expiry of the lease thirteen acres of planted coffee by reason of an act of God. As regards any loss of coffee seedlings due to normal circumstances, the obligation of the defendant under cll. 2 (6) and 2 (15) would not enable him to absolve himself from liability merely by giving evidence that he had planted a certain acreage. This still leaves for determination how many acres were planted and maintained in coffee on the expiry of the lease. It is for the plaintiffs to prove the extent of the default. They have not done so. Like the judge, I prefer to accept the defendant’s evidence: but even this is confusing. Acreage determined by the number of trees will not suffice. While the number of coffee seedlings planted is known, due to the washaway in 1960 and the evidence of normal misses, the number in existence on the expiry of the lease is completely unknown. I consider that the best evidence of the acreage under coffee on the expiry of the lease was a definite statement from the defendant that on January 1, 1964, he had twenty-four acres, including the original coffee, in a cleaned and pruned state – that is, a state which would accord with his obligations under the lease. The most cogent evidence of the original area under coffee is that given by Col. Bushell, one of the plaintiffs, who said he originally thought the acreage to be more but it turned out to be a little over five acres. This leaves nineteen acres planted and maintained by the defendant in accordance with his obligations, with a resultant default of 17 3/4 acres. As the judge held that the default amounted to 23 3/4 acres, to this extent this appeal is successful and on this aspect the cross-appeal fails. The appeal is also successful insofar as it relates to the hypothetical effect of an act of God, but it fails and the cross-appeal succeeds on the question as to whether there was an act of God. The next issue arises from the cross-appeal and it relates to the amount of damage suffered by the plaintiffs in respect of each acre in which the defendant is in default of his obligations under the lease. The judge accepted that the value of land in the area in question planted with coffee was £120 an acre, while the value of such land not so planted was £10 an acre. These value were the values at the date the lease expired and the defendant’s default occurred. Accordingly, it would seem that the proper measure of damages would be £110 for every acre by which the defendant was in default. The judge, however, reduced that figure to about £63 an acre because he was not sure that the permanent damage suffered by the plaintiffs was £110 an acre, as the Government Page 822 of [1967] 1 EA 817 (CAN) may in the future have permitted coffee to be planted. With respect to the judge this was a completely wrong approach. Damages are to be assessed as at the time of the breach. At that time the value of the land was £110 an acre less than it would have been if there had been no default; and that is the amount the plaintiffs are entitled to recover. This fact is easily shown by what would have happened if the plaintiffs had tried to sell the land: they would have got £10 an acre instead of £120 an acre. In other words, as a result of the defendant’s default there was returned to the plaintiffs land which was £110 an acre less valuable than it should have been; and that position is not affected by any hypothetical circumstance which may or may not occur in the future. In my view the proper damages to be awarded were £110 in respect of each acre in

default. The default of 17 3/4 acres multiplied by £110 gives in round figures £1,950; and I consider this to be the proper amount of the damage suffered by the plaintiffs in respect of the claim the subject of this appeal. Accordingly the cross-appeal succeeds in this respect. I have found great difficulty in arriving at the proper order in relation to costs. The appeal has been partly successful and partly unsuccessful; but no benefit resulted to the appellant by reason of the success of the cross-appeal. In the result I consider that the order of this court should be that the judgment and decree of the High Court be varied by allowing damages for the coffee in the sum of Shs. 39,000/- and by substituting for the figure of Shs. 32,592/- a figure of Shs. 41,592/- with a consequential variation in the figure of the interest thereon. I would allow the appellant one quarter of his costs on the appeal and I would allow the respondent the costs of the cross-appeal. As the other members of the court agree it is so ordered. Duffus JA: I agree with the judgment of the learned President. Law JA: I have read in draft the judgment prepared by the learned President. I agree with it, and with the order proposed. I would only add that I am surprised that in a suit which included a claim for damages for breach of a covenant to plant a specified acreage of coffee, the evidence should have been so vague and imprecise. If there is any matter which is capable of accurate assessment, it is surely the acreage of a standing crop at any particular moment, in this case at the commencement of the lease and at its termination. The burden of proof in this respect being on the plaintiffs, they cannot complain if the trial judge preferred to base his calculations on the figures put forward by the defendant. Judgment and decree of High Court varied accordingly. For the appellant: J. A. Mackie-Robertson, Q.C. and B. R. Paterson-Todd, Nakuru For the respondents: Daly & Figgis, Nairobi P. J. S. Hewett APPEALS Oliver John Shaw v R [1963] 1 EA 400 (HCU) Division: High Court of Uganda at Kampala Date of judgment: 12 August 1963 Case Number: 300/1963 Before: Udo Udoma CJ Sourced by: LawAfrica [1] Street traffic – Driving under the influence of drink and driving dangerously – appeal – Misdirection on fact alleged – Onus on appellant to show that findings unreasonable – Misdirection – Traffic Ordinance, 1951, s. 41, s. 43 (U.) – Road Traffic Act, 1930, s. 11 (1) and s. 49 (b) (U.K.). Editor’s Summary The appellant was convicted on two counts of driving under the influence of drink and in a manner dangerous to the public. The appellant was fined Shs. 2,000/- or six months’

imprisonment and disqualified from holding a driving permit for four years in respect of the first count and on the second count he was sentenced to a fine of Shs. 500/- or three months’ imprisonment. The magistrate in his judgment carefully and thoroughly examined the evidence, came to the conclusion that the witnesses for the prosecution were truthful and reliable and accepted their evidence. On appeal against conviction and sentence it was argued for the appellant that the magistrate had misdirected himself on the facts and as to the onus of proof. For the Crown it was submitted that the appellant must satisfy the court that the findings of the magistrate were unreasonable and could not be supported by the evidence and that there had been no misdirection upon the burden of proof. Held – (i) on appeal against conviction on grounds of misdirection as to the facts, the onus is on the appellant to show that the findings are unreasonable and cannot be supported having regard to the evidence. (ii) the magistrate’s findings that the appellant was under the influence of drink and unfit to drive were not unreasonable and were amply supported by the evidence. (iii) on the evidence there was no misdirection in law because the passage in the judgment dealing with the burden of proof of which complaint was made referred to the onus of proof in regard to the defence of automatism and not to the burden of proof in a criminal case generally. (iv) it was impossible to say that in imposing the sentence he did the magistrate had exercised his discretion perversely and, accordingly, the appeal against sentence could not succeed. Appeal dismissed. Cases referred to in judgment: (1) R. v. Mary Broadhurst and Others, 13 Cr. App. R. 125. (2) Hill v. Baxter, [1958] 1 All E.R. 193. (3) R. v. Evans, [1962] 3 All E.R. 1086. (4) Chapman v. O’ Hagan, [1949] 2 All E.R. 690. Judgment Udo Udoma CJ: The appellant in this appeal was charged with two counts of: (i) Driving a motor vehicle when under the influence of drink contrary to s. 41 of the Traffic Ordinance, 1951; and Page 401 of [1963] 1 EA 400 (HCU) (ii) Driving in a manner dangerous to the public contrary to s. 43 of the Traffic Ordinance, 1951. He was tried and convicted by the resident magistrate in the district court of Mengo. He was sentenced to a fine of Shs. 2,000/- or 6 months’ imprisonment in respect to the 1st count and disqualified from holding a driving permit for 4 years. On the 2nd count he was sentenced to a fine of Shs. 500/- or 3 months’ imprisonment. He was allowed 14 days within which to pay both fines. He now appeals against the conviction and sentence and the order of disqualification. There are six grounds of appeal as follows: (1) The learned magistrate erred in accepting the evidence of the witness Hans Thomas that appellant had no injury before getting out of his car at the corner of Port Bell Road and in failing to hold that the said witness merely failed to observe the injury (2) The learned magistrate erred in believing that the injuries received by appellant would have been caused in falling out of the car in the manner stated by Hans Thomas and in

failing to hold that these said injuries were more consistent with having been received prior to the time when appellant was observed by Hans Thomas. (3) The learned magistrate erred in holding that appellant admitted that he did not bother to find out anything about the facts until he knew he was to be prosecuted, in the absence of any evidence to that effect. (4) The learned magistrate erred in law in holding that for the defence to succeed it was necessary for appellant to establish a probability that there may have been concussion, and in basing his decision to convict upon this erroneous view of the law. (5) The learned magistrate should, on the evidence, have held that accused might have been suffering from the effects of concussion and that his actions were affected thereby and may not have been due to consumption of alcohol. (6) In any event the sentences and in particular a suspension of appellant’s driving licence for a period of 4 years was excessive, “in view of appellant having driven without any previous offence for 27 years, and the exceptional circumstances relating to appellant’s state of health and his ignorance of the possible results of drugs prescribed for him”. Before dealing with these grounds of appeal it is convenient to summarise the evidence as was presented before the learned magistrate. The case before the magistrate was that on Saturday, February 16, 1963, at about 1 p.m. the appellant went into the International Bar with his two dogs and there had a few drinks. Then at about 4 p.m. while one Hans Thomas (PW. 2) was driving his car along Acacia Avenue downhill towards the Golf Course Club, he saw a car – a Hillman Minx, which was then being driven by the appellant. The car was being driven in a zigzag manner, that is to say, it was swerving from one side of the road to the other thereby creating confusion. Hans Thomas (PW. 2) who felt confused by the car zigzagging along the road in that manner, decided to follow it, and did so. At the bottom of the hill he noticed that the car was being driven along the right-hand side of the road as if about to turn into the Golf Club. Hans Thomas (PW. 2) then tried to overtake it on the left-hand side of the road. Suddenly the car swerved to the lefthand side of the road, and it was therefore necessary for Hans Thomas to apply his brakes, which he did with great violence in order to avoid collision with the appellant’s car. Whereupon the appellant then drove his car uphill towards the junction of Acacia Avenue and Kitante Road. He was followed by Hans Page 402 of [1963] 1 EA 400 (HCU) Thomas (PW. 2). Before the junction of Acacia Avenue and Kitante Road the appellant’s car stopped. It then rolled backwards for about 10 yards whereby its two rear wheels mounted the pavement, and the car then swerved at right angles into the road. Thereafter it turned into Kitante Road. Hans Thomas (PW. 2) still continued to follow the appellant as he was convinced that there was something wrong with the appellant’s car, which then continued in a zigzag manner along Kitante Road, hitting the kerb of the road several times on the left-hand side. With increased speed the appellant’s car took the long bend by the slope before the junction and passed the roundabout uphill to the Police Station. Near to the Police Station both wheels of the car mounted the pavement, the nearside wheels of the car travelling on the pavement for about 15 yards and then back on to the road, and was driven downhill at such increased speed of about 45 m.p.h. that it narrowly missed colliding with some cyclists who were then on the road. The appellant then drove on towards the Port Bell Road junction. As he was about to turn right into Port Bell Road at the junction, he overshot the turning and hit the kerb on the right-hand side of Jinja Road and stopped. The appellant then tried to change his gear into reverse and to proceed

on the journey but was unable to do so. Thereupon Hans Thomas, who was still following behind the appellant’s car, stopped and parked his car to the left side of the road, alighted therefrom and walked up to the appellant’s car. He attempted to open the left-hand side front door of the appellant’s car but discovered that it was locked. The appellant undid the locking device and Hans Thomas (PW. 2) opened the door while the appellant looked on. The appellant was then sitting on the driver’s seat. Hans Thomas removed the ignition key which was then in the ignition lock and took possession of it. He went away with the key back to his car. He stood by his own car. The appellant crawled over the seat of his car on the left side and, in trying to get out, fell out of the car on to the ground on his hands and feet. He sustained injuries on his forehead. He had a small cut. He got up eventually after some time and walked over to Hans Thomas (PW. 2). He spoke to him. He told him that he had stolen his keys. Hans Thomas (PW. 2) made no reply as he felt it useless to do so since he was convinced the appellant was drunk. He then noticed that the appellant was sweating. His eyes were deep, and his eyelids half closed. The appellant was bleeding profusely from a cut over his left eye. Just at that time another car which was driven by an Asian arrived at the scene. It stopped there; but when requested by Hans Thomas (PW. 2) to go to the police the driver of that car made no effort to do so. Then a police patrol car with an inspector of police on board arrived, and Hans Thomas (PW. 2) handed over the appellant’s ignition key to the inspector of police. The appellant was thereupon arrested and driven away in the police car to the Jinja Road Police Station. There it was observed that the appellant smelt strongly of drink. His eyes were red and his eyelids heavy. His tongue was also heavy. When interrogated the appellant could not pronounce his name properly. He said that somebody had banged into him, but could not say where. He denied having had any drink. On being tested the appellant could not stand properly. He swayed from side to side and had to hold on to a table in order to support himself. When told that he was suspected of being drunk and that he should be medically examined, the appellant should: “ –, I am not accepting any kind of examination”. Having refused to be medically examined, he complained that he was unlawfully arrested, and that he should be allowed to go. From time to time the appellant fell asleep on the table at the police station, and on waking up, would shout, “who is in charge of this station?” Page 403 of [1963] 1 EA 400 (HCU) In his defence the appellant who described himself as a slow, regular moderate drinker, gave evidence on oath. He could only recollect having taken two Besperax sleeping tablets in the early morning hours of February 16, 1963, that is to say, the day of the incident, of going to work thereafter as usual that day, and of feeling quite fit but excited and exhilarated. He remembered visiting the International Bar with his two dogs with the intention of taking the dogs to Port Bell later, and of taking two beers and probably a brandy afterwards at the bar. Thereafter he had no recollection of what had happened. He could not say how in leaving the bar he had driven the 3 miles distance to the Port Bell junction He could not remember meeting Hans Thomas that day or the events at the police station. He was certain, however, that he was not tested at the police station because he remembered voluntarily standing on one leg when he thought he was considered drunk. He was asked if he wanted a doctor and he had refused to see one, but that was in connection with the wound on his left eyebrow, which, in any case he had no idea how it had come about. He only saw Dr. Lawrence (DW. 2) on Tuesday, February 19, 1963, that is, 3 days after the incident, when he knew that he was going to be charged by the police.

Under cross-examination the appellant said: “I have never had concussion and I have never had amnesia. I have no real recollection of anything from the time I got into the bar until the Port Bell turning. My amnesia probably started at the International bar.” The appellant also called evidence as to his character and the state of his health generally as well as medical evidence as to the possible effect of the sleeping tablets he had taken on February 16, 1963, both of which evidence was said to be in mitigation in the event of a conviction. The learned trial magistrate in his judgment carefully and thoroughly examined the whole of the relevant evidence before him and came to the conclusion that the witnesses for the prosecution were truthful and reliable, and in particular that Hans Thomas, the principal witness for the prosecution, was also public-spirited. He accepted their evidence and convicted the appellant as already stated above. The appellant now complains that the learned magistrate was wrong in so doing, that being the substance of the complaint against the judgment of the learned magistrate which has emerged from the arguments addressed to this court in respect of grounds 1, 2, 3 and 5 of the grounds of appeal which I now propose to consider together. Mr. Wilkinson for the appellant has submitted that the learned magistrate was wrong in accepting the evidence of the witness for the prosecution and also in holding that Hans Thomas (PW. 2) was public spirited as it was more likely that the latter was actuated by curiosity rather than public-spiritedness. Hans Thomas’ power of observation was severely attacked in that it was said that he failed to observe the cut on the eyelid of the appellant before the appellant fell out of his car at the junction of Port Bell Road. It was said that the learned magistrate did not properly direct his mind to the various aspects of the case because he failed to find that the appellant was probably involved in an accident resulting in concussion and amnesia prior to the incident at the Port Bell Road junction. After having carefully considered these submissions, I agree with the contention of Mr. Keeble, counsel for the respondent, that the issue before the court was one which turned on the facts and that it is the duty of the appellant to satisfy this court that the findings of the learned magistrate are unreasonable and cannot be supported having regard to the evidence. To put it another way, Page 404 of [1963] 1 EA 400 (HCU) as was laid down by the Court of Criminal Appeal in R. v. Mary Broadhurst and Others (1), 13 Cr. App. R. 125 at p. 130: “If there has merely been a misstatement of or a failure to state facts there may have been a miscarriage of justice, and the onus is on the appellant to show that on a reasonable view of the facts and with a proper direction therein, the result might well have been different. If the appellant fails to show this the conviction must stand.” Now, here was a case which depended in the main on the oral testimony of witnesses, the evidence for consideration being one-sided, for be it remembered, the appellant was not of assistance to the court in that he could hardly recollect the incidents connected with the offence with which he was charged, yet it was argued that the learned magistrate was wrong in accepting the only material evidence before him, and therefrom drawing the only reasonable and irresistible inference. The medical evidence concerning the possibility of the appellant having had concussion and amnesia was said to have been given in mitigation in the event of a conviction. Surely it is not unreasonable to suppose (although the learned magistrate did not appear to have taken that view) that it is only in a case in which an accused person has felt the full force and

effect of the prosecution case against him that he may resort to the expedient of calling evidence as to his character and other facts in mitigation as was done in this case. It is even difficult to see how the evidence that the appellant was under the influence of a drug could have been considered in mitigation when, under the section of the Ordinance under which the appellant was charged, it is an offence to drive or to attempt to do so while under the influence of a drug to such an extent as to be incapable of having a proper control of a motor vehicle. Be that as it may, the learned magistrate did not accept the evidence, and I think, quite rightly. The evidence of Dr. Lawrence (DW. 2) for instance was highly speculative. The learned magistrate, having reviewed the whole of the evidence before him, concluded as follows: “And in my judgment having regard to the evidence as a whole the accused must have known before he got into his car that he was not in a fit state to drive. I find therefore that the accused was under the influence of drink to such an extent as to be incapable of having proper control of his motor vehicle and I convict him on count 1.” I am unable to say that these findings were unreasonable and cannot be supported having regard to the evidence. On the contrary I am satisfied that there is ample evidence to support them. Grounds 1, 2, 3 and 5 of the appeal therefore fail. I turn now to consider ground 4 which raises a difficult question of law. The contention is that the learned magistrate misdirected himself on the issue as to the onus of proof, and that that misdirection has occasioned a miscarriage of justice. In the concluding passage of his judgment the learned magistrate had said: “It is sufficient for the defence to raise a reasonable doubt in the mind of the court whether there may not have been concussion to account for the accused’s irresponsible behaviour, it is sufficient not for the defence to establish a probability that there may have been concussion for the defence to succeed.” It has been submitted that that is a wrong statement of the law since in criminal cases the burden of proof on the prosecution never shifts, and that Page 405 of [1963] 1 EA 400 (HCU) there was no burden at all on the appellant to establish a probability that he might have suffered from concussion before arriving at the Port Bell junction. Counsel for the appellant seems to have overlooked the fact that the learned magistrate was in that passage dealing with the onus of proof in regard to the defence of automatism. The passage appears to have arisen from a consideration by the learned magistrate of a passage by Lord Goddard, C.J., in Hill v. Baxter (2), [1958] 1 All E.R. 193 at p. 195, in which in a case stated by the Justices on a charge under s. 11 (1) and s. 49 (b) of the English Road Traffic Act, 1930, on the question of mens rea, Lord Goddard, C.J., had said: “The first thing to be remembered is that the Statute contains an absolute prohibition against driving dangerously or ignoring halt signs. No question of mens rea enters into the offence; it is no answer to a charge under these sections to say, ‘I did not mean to drive dangerously’, or ‘I did not notice the halt sign’. The justices’ finding that the respondent was not capable of forming any intention as to the manner of driving, is really immaterial. What they evidently meant was that the respondent was in a state of automation. But he was driving and, as the case finds, exercising some skill, and undoubtedly the onus of proving that he was in a state of automation must be on him. This no doubt, is subject to the qualification that where an onus is on the defendant in a criminal case the burden is not as high as it is on a prosecutor.”

It is of interest to note that that statement of the law as to the onus of proof where automation is raised by the defence was subsequently approved and applied in R. v. Evans (3), [1962] 3 All E.R. 1086. In my view this dictum of Lord Goddard, C.J., is far stronger than the passage in the learned magistrate’s judgment now complained of, which seems to me to be a paraphrase of a statement of the law by Devlin, J., as he then was, in Hill v. Baxter (2); There Devlin had said: “I agree that if the onus lies on the defence to produce some evidence of automatism, they have failed to do so, with the result that the justices came to a wrong conclusion in law. It would be quite unreasonable to allow the defence to submit at the end of the prosecution’s case that the Crown had not proved affirmatively and beyond a reasonable doubt that the accused was at the time sober, or not sleep walking or not in a trance or blackout. I am satisfied that such matters ought not to be considered at all until the defence has produced at least prima facie evidence.” On the evidence in the instant case, I am satisfied that there was no misdirection in law. In the event it is possible to hold otherwise, I am satisfied that no miscarriage of justice has occurred. The learned magistrate was fully conscious of the fundamental principle of law as to the burden of proof in a criminal case as he clearly stated so in this passage of his judgment when he said: “The burden of proving the guilt of the accused always rests upon the prosecution and never shifts on the defence.” I have given considerable thought to the question of sentence and, in particular to the period of suspension of the appellant’s driving permit. It may be that if the appellant had been tried by this court different sentence might have been imposed if he was found guilty. The learned magistrate held that this was a serious case of drunkenness and dangerous driving and that he took into consideration the mitigating circumstances which had been urged upon him. In the circumstances and on the authority of Chapman v. O’Hagan (4), [1949] 2 All E.R. 690, I find myself unable to substitute my discretion for that of the Page 406 of [1963] 1 EA 400 (HCU) learned magistrate as it is impossible to say that the exercise of his discretion in all the circumstances of this case is perverse. In the result this appeal must be dismissed. Order accordingly. Appeal dismissed. For the appellant: PJ Wilkinson, QC and B De Silva Wilkinson & Hunt, Kampala For the respondent: OJ Keeble Hunter & Greig, Kampala BANKRUPTCY Harihar Chotabhai Patel v Uganda [1966] 1 EA 311 (CAK) Division: Court of Appeal at Kampala Date of judgment: 8 September 1966 Case Number: 222/1965 Before: Sir Charles Newbold, P Spry and Law JJA Sourced by: LawAfrica

Appeal from: The High Court of Uganda – Russell, J. [1] Bankruptcy – Offence – Failure to keep proper books of account – Magistrate’s conclusion that omission had been honest and excusable – Burden on accused to show on balance of probabilities omission honest and excusable – Bankruptcy Act, (Cap. 71), s. 140 (1), proviso (b) (U.). [2] Appeal – Jurisdiction – Questions of law and fact – Second appeal – Bankruptcy offence. Editor’s Summary The appellant was charged with failing to keep proper books of account within a period of three years prior to the date of the presentation of a bankruptcy petition contrary to s. 140 (1) of the Bankruptcy Act. It was conceded that during the material period proper books had not been kept and the sole question which arose for consideration by the resident magistrate was whether the omission to keep proper books came within the proviso to s. 140 (1) which provides that such omission shall not be an offence if it is honest and excusable. The resident magistrate came to the conclusion that the omission had been honest and excusable. On appeal to the High Court, the judge, while not interfering with the finding that the omission was honest, held that on the facts before the resident magistrate it was not reasonably possible to hold that the omission was excusable. He allowed the appeal and remitted the case to the resident magistrate for conviction and sentence. On further appeal by the appellant to the Court of Appeal, it was submitted that the High Court had no jurisdiction to interfere with the decision of the resident magistrate as the right of appeal lay only on a point of law and the question whether the omission was excusable was one of fact and not of law. Held – (i) the onus was on the accused to show on the balance of probabilities that the failure to keep proper books was excusable; (ii) having regard to the period over which the default took place, the scale of the business and the financial position of the appellant following the period when the books were apparently kept properly, the reasons for the failure to keep proper books were vague and unsatisfactory; (iii) the court was satisfied that there were no facts before the resident magistrate upon which he could reasonably have come to the conclusion that the omission was excusable and accordingly his decision was erroneous in law and the High Court had jurisdiction to rectify that error. Case remitted to the Resident Magistrate for conviction and sentence as directed by the High Court. No cases referred to in judgment. Judgment Sir Charles Newbold P, gave the following judgment of the court: This is a second appeal, being an appeal from the decision of a judge of the High Court given on an appeal from a decision of the resident magistrate, Busoga. Page 312 of [1966] 1 EA 311 (CAK) The appellant was charged with failing to keep proper books of account within a period of three years prior to the date of the presentation of a bankruptcy petition, contrary to s. 140 (1) of the Bankruptcy Ordinance. It was conceded that during almost all that period proper books had not been kept and the sole question which arose for consideration by the resident magistrate was

whether the omission to keep proper books came within the proviso to s. 140 (1), which provides that such omission shall not be an offence if it is honest and excusable. We should here draw attention to the fact that the onus was on the accused, i.e. the appellant, to prove that the circumstances in which he failed to keep proper books were such that the omission was honest and excusable. On the facts proved before the resident magistrate, he came to the conclusion that the omission had been honest and excusable. The judge of the High Court was not prepared to interfere with the finding that the omission was honest but came to the conclusion that on the facts before the resident magistrate it was not reasonably possible to hold, as the resident magistrate had held, that the omission was excusable. He therefore allowed the appeal and remitted the case to the resident magistrate for conviction and sentence of the appellant. From that decision of the High Court this appeal has now been brought to this court. This appeal, as we have already pointed out, is a second appeal and lies only on a question of law. Counsel for the appellant has submitted that the High Court judge had no jurisdiction to interfere with the decision of the resident magistrate as the judge himself only had jurisdiction on a point of law, the appeal having been brought under s. 325 of the Criminal Procedure Code Act. If, on the facts before the resident magistrate, it was reasonably possible to draw the inference that the omission was excusable, the question whether it was excusable would be one of fact and not of law and therefore the judge would have had no jurisdiction to interfere with the decision. The question before us is this – on the facts proved before the resident magistrate was it reasonably possible to come to the conclusion that the omission in the circumstances of this case to keep proper books during the period mentioned in the charge was excusable? In order to arrive at the answer to this question it is necessary to set out the relevant facts. The outline of the facts proved before the resident magistrate was that books were properly kept and audited up to June, 1959. After that date the appellant was in financial difficulty, which apparently deepened until a petition in bankruptcy was presented in 1962. During this period, i.e. from June, 1959 to 1962, some, but not adequate, books were kept up to the beginning of 1961 and no books at all were kept thereafter. The reasons that the appellant gave were that the person who had been keeping the books left and then he asked a relative to keep them. This relative kept some accounts for the beginning of the period and then thereafter none at all, i.e. only for the first part and not for the latter part. From these facts it would seem quite clear to us that the appellant knew that the books were not being kept properly and yet he appears to have done nothing to remedy the default. He said in an unsworn statement that having regard to the nature of his business, he thought the accounts kept by his two main customers would be sufficient. We must also point out, as has already been said, that the onus under the section is to satisfy the court that the omission was excusable. This onus can of course be satisfied on a balance of probability; nevertheless there is an onus upon the appellant and not, as in most criminal cases, on the prosecution. We would like to draw attention to this fact because the defence relied only on an unsworn statement and it would normally be difficult to discharge an onus purely by means of an unsworn statement which cannot be tested by cross-examination. The resident magistrate, after examining the facts, came to the conclusion that the omission was not shown to be grossly negligent. This appears to be a misdirection as to the onus, as the resident magistrate seems to have approached Page 313 of [1966] 1 EA 311 (CAK) the facts on the basis that it was for the prosecution to prove the appellant’s negligence in failing to keep his books. That is a misdirection in law as it was for the appellant to show that the omission was excusable. It may be that it was for these reasons that the magistrate came to the conclusion which he did. When the judge examined such facts as had been proved he came to the

conclusion that there were no facts upon which the magistrate could reasonably have come to the conclusion that the omission was excusable. When we look at the facts we have already referred to, the period over which the default took place, the scale of the business, and the financial position of the appellant following the period when the books were apparently properly kept, the reasons for the failure to keep proper books seem vague and unsatisfactory. We are satisfied that there were no facts before the resident magistrate upon which he could reasonably have come to the conclusion that this omission was excusable. That means that his decision was erroneous in law and that jurisdiction was conferred on the trial judge to rectify that error. For these reasons we consider that the High Court judge had jurisdiction to hear the appeal and we consider that the appeal should be dismissed. The case will be remitted to the resident magistrate for conviction and sentence as directed by the High Court. Case remitted to the Resident Magistrate for conviction and sentence as directed by the High Court. For the appellant: A. R. Kapila, Nairobi Z. Haque For the respondent: The Attorney General, Uganda H. D. Pandya (State Attorney, Uganda) BILLS OF EXCHANGE Fakhri Stores Ltd v London Confirmers Ltd [1965] 1 EA 159 (CAN) Division: Court of Appeal at Nairobi Date of judgment: 19 March 1965 Case Number: 48/1964 Before: Newbold Ag V-P, Sir Clement de-Lestang and Spry JJA Sourced by: LawAfrica Appeal from: Supreme Court of Kenya – Dalton, J [1] Bills of exchange – Material alteration – No evidence that defendant privy to alteration – No evidence how and by whom alteration made – Burden of proof on plaintiff to establish that party sued privy to alteration. Editor’s Summary The respondent (as plaintiff) sued the appellant on four bills of exchange and alleged that the bills had been accepted unconditionally by the appellant. The defence to the suit was an allegation that the bills had received only qualified acceptance and that no liability had arisen on them. At the hearing the four bills were produced as exhibits and each of these bore on its face the words “Subject to Extension” or words to the like effect. The only witness for the respondent was a bank official who stated that when he received the bills after acceptance by the appellant the acceptance was unconditional and that the bills had not borne the references to extension. He also stated that following acceptance the bills had been in the possession either of the bank or of the respondent and that he was unable to explain the alteration. The trial judge entered judgment for the respondent and rejected the appellant’s argument that the respondent having produced from its own custody four bills the acceptance of which was patently qualified, was not entitled,

under s. 92 of Indian Evidence Act, 1872, to lead evidence to show that acceptance had in fact been unqualified. On appeal it was submitted that when a person is suing on a bill which has been materially altered, he can only succeed by establishing that the party sued was privy to the alteration. Held – (i) the onus is on a plaintiff suing on bills of exchange which have patently been altered in a material respect to prove that the defendant was privy to the alteration; (ii) the alterations were material, and under s. 64 of the Bills of Exchange Act the bills became void except as against the party who had been privy to the alteration and except in the case of alterations that were not apparent; Page 160 of [1965] 1 EA 159 (CAN) (iii) as the respondent had failed to discharge the burden of proof that the appellant was a privy to the alteration the bills were void against it. Appeal allowed. March 19. The following judgments were read: Judgment Spry JA: This is an appeal from a judgment and decree of the Supreme Court of Kenya in an action based on four bills of exchange. There was an alternative claim, but it was not seriously pursued and does not concern this appeal. The defence to the suit was an allegation that the bills had received only qualified acceptance and that no liability had arisen on them. The plaintiff company (the present respondent) called only one witness, a bank clerk, who produced the four bills on which the plaint was based. Each of these bore on its face the words “Subject to extension” or words to the like effect and one also bore a reference to a letter. The witness testified that in the course of his duty he had received the bills, duly accepted, and had delivered against them the documents of title to certain goods for which the bills represented payment. He said that when he received the bills, they had not borne the references to extension. He said that the bills had thereafter been placed in the bank’s strong-room and had not thereafter passed into the possession of the defendant company. He could offer no explanation how the bills came to be altered. No evidence was called by the defendant company. No issues were framed at any stage of the proceedings. The case for the plaintiff company was that the bills had been accepted without qualification. Counsel for the defendant company, appears to have ranged over a wide field, but his main argument was that the plaintiff company, having produced from its own custody four bills the acceptance of which was patently qualified, was not entitled to lead evidence to show that acceptance had in fact been unqualified, and he relied particularly on s. 92 of the Indian Evidence Act, 1872. The learned trial judge rejected the argument based on s. 92. He accepted the evidence of the witness for the plaintiff company that the bills had been accepted unconditionally. He dismissed the qualifying words on the bills with the remark that “how the words got there we will probably never know”. He accordingly found for the plaintiff company. At no stage of the trial does there appear to have been any reference to s. 64 of the Bills of Exchange Act (Cap. 27) which reads as follows: “64. Alteration of bill. (1) Where a bill or acceptance is materially altered without the assent of all parties liable on the bill, the bill is avoided, except as against a party who has himself made, authorized, or assented to the alteration, and subsequent endorsers:

Provided that where a bill has been materially altered, but the alteration is not apparent, and the bill is in the hands of a holder in due course, such holder may avail himself of the bill as if it had not been altered, and may enforce payment of it according to its original tenor. (2) In particular the following alterations are material, namely, any alteration of the date, the sum payable, the time of payment, the place of payment, and, where a bill has been accepted generally, the addition of a place of payment without the acceptor’s consent.” Page 161 of [1965] 1 EA 159 (CAN) There was, however, reference to the corresponding English provision and the effect of a material alteration appears to have been argued, although the learned judge made no reference in his judgment to this aspect of the case. At the hearing of the appeal, counsel for the appellant’s main argument for the defendant company (the present appellants) was that when a person is suing on a bill which has materially been altered, he can only succeed by establishing that the defendant was privy to the alteration. In the present case, the plaintiff company was asserting that the bills had been accepted unconditionally and that could only be so if the words of qualification had been added later. The plaintiff company had, however, made no attempt to show when, by whom, or in what circumstances the alteration had been made. To this submission, counsel, for the plaintiff company, argued that the defendant company was precluded by its pleading from arguing any defence other than that the acceptance of the bills was qualified. He also argued that the qualifying words were vague and uncertain and should therefore be disregarded. On this basis he contended that they should not be regarded as material alterations. Finally, he submitted that the form of the defence raised an inference that the defendant company had been privy to the alterations and that this inference was not rebutted by the evidence of the witness. As regards the first of these arguments, the written statement of defence amounts to a denial that the defendant company had accepted without qualification the “alleged” bills. I think there was, therefore, an initial onus on the plaintiff company to prove the acceptance of the bills. The second argument has, in my view, no merit: I think the words alleged to have been added to the bills, whatever their effect, cannot be regarded as other than material, particularly having regard to sub-s. (2) of s. 64 of the Bills of Exchange Act, quoted above. As regards the third argument, I think there are indications that suggest that the defendant company may have been privy to the alterations, if alterations there were, but it has certainly not been proved. In my opinion, the matter comes down to this: it is part of the plaintiff company’s case that the bills were altered; the alterations were material; material alterations avoid a bill, under s. 64 of the Bills of Exchange Act, except as against a party who has been privy to the alterations and except in the case of alterations that are not apparent; it has not been proved that the defendant company was privy to the alterations; it has not been, nor, in my opinion, could it reasonably be argued that the alterations are not apparent. The plaintiff company was basing its case on documents which were prima facie void and failed to call sufficient evidence to prove their validity. I appreciate that it may have been impossible to prove affirmatively who had made the alterations, but if that were so, it was, I think, essential for the plaintiff company to call as witnesses all available persons who had had custody of, handled or made endorsements on the bills. If I am correct in this, it follows that the appeal must be allowed and it is unnecessary to consider the other aspects of the appeal which were argued before us.

I would allow the appeal, though not without reluctance, set aside the judgment and decree of the Supreme Court and substitute an order dismissing the suit, with costs, and I would award the defendant company the costs of the appeal. Newbold Ag V-P: It is perfectly obvious that this appeal must succeed. The respondent, as plaintiff, sued the appellant, as defendant, on four bills of exchange. The plaintiff alleged that the bills of exchange had been accepted unconditionally by the defendant. On the suit coming for trial the plaintiff produced, as it had to, the four bills. On the face of each of these bills there Page 162 of [1965] 1 EA 159 (CAN) appears a qualified acceptance. The only witness for the plaintiff was a bank official who stated that when he received the bills after acceptance by the defendant the acceptance was unqualified. He also stated that following acceptance the bills had been in the possession either of the bank or of the plaintiff and that he was unable to explain the alteration or, indeed, certain other writing on the bills which must have been placed thereon subsequent to acceptance. In these circumstances it is clear that each bill has been materially altered and is thus avoided unless the alteration was made with the consent of the defendant as acceptor (see s. 64 of the Bills of Exchange Act). The evidence led on behalf of the plaintiff is to the effect that subsequent to acceptance the defendant did not either himself make or authorise the alteration; thus it is quite clear that the learned judge erred in giving judgment in favour of the plaintiff on the bills. Whatever lack of merit there may be in the defendant’s case a plaintiff cannot possibly hope to succeed where he produces evidence of the type this plaintiff produced: it is clear that either all the witnesses who could have spoken as to what happened to the bills after acceptance have not been produced or there has been considerable carelessness on the part of the bank or the plaintiff. I would allow the appeal with costs and, as the other members of the court agree, an order shall be made in the terms proposed by Spry, J.A. Sir Clement De Lestang JA: I agree and have nothing to add. Appeal allowed. For the appellant: Bryan O’ Donovan and JK Winayak JK Winayak & Co, Nairobi For the respondent: SL Chawla Kean & Kean, Nairobi The Administrator-General of Zanzibar v Khalfan Bin Ali Bin Mohamed El-Battashy and others [1963] 1 EA 230 (HCZ) Division: High Court of Zanzibar at Zanzibar Date of judgment: 7 September 1962 Case Number: 35/1962 (O.S.) Before: Horsfall Ag CJ Sourced by: LawAfrica [1] Intestacy – Commorientes – Death of father and son in common calamity – Father wounded first – Son struck immediately afterwards – No evidence as to moment of death. Editor’s Summary

The plaintiff took out an originating summons to determine whether a son had survived his father. It was common ground that both died in a common calamity when their house was attacked by a mob. The father was regarded as an old man and blind, while his son was fourteen years old. A witness gave evidence that the father left the house first, was slashed with sticks and bush knives and fell to the ground bleeding. He was followed by his son who was struck on his head but, although giddy from the blow, walked back into the house. That was the last the witness saw of the son but she said she considered the father was dead when she left “. . . because he was being assaulted there”. There was no evidence when Hamoud died, though there was no dispute that he did so as a result of injuries received from the mob. Counsel for the defendants submitted that he had discharged the onus by proving that the son was alive when the father was mortally wounded. Held – the massacre was a common calamity in which the father and son did not die simultaneously; but the court could not draw any inference that an elderly blind man would struggle against death longer than a boy of fourteen years or vice versa and it was impossible to say which survived the other. Order accordingly. Case referred to: (1) K. S. Agha Mir Ahmed Shah and Another v. Mir Mudassir Shah and Others (1944), A.I.R. P.C. 100. Judgment Horsfall Ag CJ: The agreed issue on this originating summons is: Did the son, Hamoud bin Soud, survive his father, Soud bin Ali? It is agreed that the burden of proof is on defendants 2, 3 and 4. I consider that this burden will be discharged if counsel establishes on balance the reasonable probabilities for what he contends. The facts are that Soud bin Ali was blind. There is no evidence of his age beyond that he is described by the vague term “old”. I find that his son Hamoud was aged fourteen years. It is proved that about 1 p.m. on a Saturday afternoon early in June, 1961, during the riots the house of Soud was attacked by a mob. Soud, Hamoud, the witness Munira binti Khamis and her husband collected in the corridor of Soud’s house. The husband made a run for it and escaped out of the house only to be eventually killed. When the murderous mob broke in by the windows the three remaining, in the following order, tried to escape from the house by the rear door. Soud went first guided by the woman Munira behind him, followed by the son Hamoud. When the party in this order opened Page 231 of [1963] 1 EA 230 (HCZ) the rear door of the house and reached the fenced compound they were greeted by more of the murderous mob. They could not re-enter the house because of the mob inside nor escape because of the mob which was outside the door. Soud was slashed with sticks and bush knives around the chest and shoulders and fell to the ground bleeding. Hamoud was hit on the head. The woman, Munira, was assaulted and when she said to Hamoud: “Let us go,” he replied: “I am not going to leave my father.” Munira managed to flee away and has lived to tell the tale. She says that Hamoud, being giddy from being hit, walked back into the house. That was the last she saw of Hamoud. Munira considered that Soud was dead when she left. “I knew he was dead because he was being assaulted there.” She was referring to the fury of the assault and she is asking me to infer that it finished off the old man then and there. There is no dispute that Hamoud died as the result of injuries received from the mob. There is no evidence when he died.

2. There is no dispute as to the law. I quote from the head-note in the case of K. S. Agha Mir Ahmed Shah and Another v. Mir Mudassir Shah and Others (1) (1944), A.I.R. P.C. 100: “When two individuals perish in a common calamity and the question arises as to who died first, in the absence of evidence on the point, there is no presumption that the younger survived the elder. Such a question is always from first to last a pure question of fact of the onus probandi lying on the party who asserts the affirmative.” I hold that this massacre was a common calamity and that the father and son did not die simultaneously in it. Counsel for defendants 2, 3 and 4 has submitted that he has discharged the onus by proving that the son was alive when the father was mortally wounded. I agree that the father was probably mortally wounded when he fell but that is not enough. Can I properly infer that the father died immediately after he fell? There is no evidence of the nature of the injuries inflicted on the father. I cannot refuse the possibility that the father’s wounds did not immediately prove fatal. He may have breathed for a little time. It is possible that the son might have been immediately killed directly he re-entered the house. I don’t think that I can draw any inference that an elderly blind man would struggle against death longer than a boy of fourteen years of age or vice versa. I find it impossible to say which survived the other. Neither inherits from the other. Accordingly Soud’s brother, the first defendant, is entitled to five twenty-fourths of the estate. Costs of both parties to come out of the estate. Order accordingly. For the plaintiff: KC Kotecha(Crown Counsel, Zanzibar). The Administrator-General, Zanzibar For the first defendant: PS Talati Wiggins & Stephens, Zanzibar For the second, third and fourth defendants: AMS Parkar Parkar & Co, Zanzibar CONTRACT Walji Jetha Kanji and others v Elias Freed [1959] 1 EA 1071 (CAM) Division: Court of Appeal at Mombasa Date of judgment: 18 December 1959 Case Number: 20/1959 Before: Forbes V-P, Gould and Windham JJA Sourced by: LawAfrica Appeal from: H.M. Supreme Court of Kenya–Edmonds, J [1] Building contract – Contract specifying amount for labour but subject to final check of measurement of building area – Whether contract is entire contract or lump sum contract – Whether cause of action accrues before final check of measurement.

[2] Building contract – Alleged defective work – Onus of proof – Completion required within certain date – Additional work ordered later – Waiver – Indian Contract Act, 1872, s. 63. Editor’s Summary The appellants sued the respondents for money due under a building contract and for additional work. By the contract the respondents agreed to pay the appellants Shs. 98,450/- for their work and labour, and “interim advance payments” amounting to Shs. 91,000/- were to be paid at stages of the work. It was also stipulated that “on completion of all works and after occupation certificate obtained” a sum of Shs. 15,000/- would be payable and “on completion of six months maintenance period” a sum of Shs. 7,450/-. The payment of Shs. 15,000/- was “subject to a final check measurement of the building and may be subject to adjustment as a result of the final check”. In his defence the respondent denied liability stating that the building work was not completed to his satisfaction, that the payment on completion of all works and after occupation certificate obtained was subject to a final check measurement of the building which had never been made, and that the building was not completed in time. He also counterclaimed for loss of rent due to delay in completion of the building and for defective work. The appellants in reply alleged that the delay was mainly due to the failure of the respondent, whose responsibility it was, to supply materials when required and because the respondent ordered additional work. The Supreme Court dismissed a substantial part of the plaintiffs’ Page 1072 of [1959] 1 EA 1071 (CAM) claim partly on the ground that it was premature as no final check measurements had been made; partly on the ground of defective work and partially allowed the respondents’ counterclaim for loss of rent and defective work. On appeal it was argued inter alia for the appellants that on a true construction of the contract measurement of the completed blocks was not a condition precedent to payment of Shs. 15,000/-; that the trial judge discussed “measurement contracts” without defining what he meant by that phrase, that this was an entire contract subject to a right of adjustment on the basis of area; that there had never been any request for measurement put forward by the respondent in correspondence prior to the filing of the plaint, that it was never suggested that less work had been done than was set out in the plan; that, therefore, the minimum amount payable was Shs. 15,000/- and that if measurement was a condition precedent it had been waived by the respondent. Held – (i) the contract was an “entire” contract and one in which the price was to be ascertained subsequently on a fixed basis, namely, a final payment per square foot of the actual area of the completed building, therefore, the action was not maintainable until such area had been ascertained by measurement of the building; (ii) the onus was on the appellants to establish the amount to which they were entitled under the contract and this they had failed to do; (iii) the onus was on the appellants to show that they were not responsible for defects in the concrete work of the canopies; (iv) it is well established that where a lump sum contract is substantially completed, liability cannot be repudiated on the ground that work, though substantially performed, is in some respects not in accordance with the contract; (v) the defects established were not such that the respondent could reasonably withhold approval of the building as a whole: the most he would have been entitled to do was to retain out of the last instalment the value of the defects;

(vi) though the effect of ordering the additional work was to set the time at large, the appellants were still under an obligation to complete the work within a reasonable time; (vii) in the circumstances of this case, s. 63 of the Indian Contract Act did not enter into the matter, nor did the question of waiver arise. Appeal allowed in part. Cases referred to in judgment (1) H. Dakin & Co. Ltd. v. Lee, [1916] 1 K.B. 566. (2) Hoenig v. Isaacs, [1952] 2 All E.R. 176. (3) Dodd v. Churton, [1897] 1 Q.B. 562. December 18. The following judgments were read by direction of the court: Judgment Forbes V-P: This is an appeal from a judgment of the Supreme Court of Kenya. The appellants are building contractors. By a contract in writing dated June 25 1955, they undertook to erect for the respondent on his land at Mombasa, with materials to be supplied by the respondent, a block of twelve flats and a block of twelve garages and boys’ W.C.s, comprising a total area of approximately 17,900 square feet. The contract specified, inter alia, that “the total area of 17,900 square feet is subject to final check on completion of the building”; Page 1073 of [1959] 1 EA 1071 (CAM) that the appellants agreed to build “the said block of flats, garages and boys’ W.C.s completely and entirely in accordance with the plans and specifications referred to above and to the satisfaction of the owner [i.e. the respondent] and the Municipal Board of Mombasa”; and that the respondent agreed “to pay to the contractor [i.e. the appellants] the sum of shillings five and cents fifty per square foot (Shs. 5/50) of building”. In para. 45 of “terms and conditions” set out in the contract provision was made for the respondent to make “interim advance payments” to the appellants at various stages of the work. Only the two last instalments provided for are material to this case, and the provision regarding these reads as follows: “10. On completion of all works and after occupation certificate obtained Shs. 15,000/11. On completion of six months maintenance period Shs. 7,450/Approximate total amount of Contract Shs. 98,450/“Note: The payment of item number ten above will be subject to a final check measurement of the building and may be subject to adjustment as a result of the final check.” Provision, which was in the following terms, was also made in the “terms and conditions” for alterations: “43. Alterations.–The owner shall have the right to direct the contractor to effect such alterations or amendments as he considers necessary providing that any alteration or amendment shall not effect major structural alterations.” Finally, para. 46 of the “terms and conditions” provided that: “The time of completion of this contract shall be nine months from the date of signing this agreement.”

This meant that the date for completion under the contract was March 25, 1956. In fact, the building was handed over on August 22, 1956. An “occupation certificate” had been duly obtained. In March, 1958, the appellants as plaintiffs filed a suit against the respondent claiming payment of a sum of Shs. 27,236/- under the contract, together with interest thereon and the costs of the suit. The sum of Shs. 27,236/- claimed was made up as follows: Amount alleged unpaid in respect of instalments payable under the contract up to date of completion Shs. 13,000/Amount of last instalment payable six months after completion alleged to be unpaid Shs. 7,450/Amount alleged due but unpaid in respect of additional work Shs. 6,786/Total: Shs. 27,236/In his defence the respondent admitted the contract, but denied that the work had been “completed according to the reasonable satisfaction of the defendant”. He claimed that the tenth payment under the terms of the contract was to be made subject to a final check measurement of the building and that Page 1074 of [1959] 1 EA 1071 (CAM) no such check measurement had ever been made. He denied that he had ordered any additional work, and, in the alternative, alleged that the charge for extra work was excessive and unreasonable. He alleged that the work had not been completed in accordance with the terms of the contract and specified a number of alleged defects. And he alleged that the building was not completed on March 26, 1956, and was handed over in an uncompleted condition on or about August 22, 1956. He counterclaimed for: “(i) (ii)

Damages for loss of use and loss of rent for five months at Shs. 8,000/- per month Shs. 40,000/Wages of one carpenter for fitting steel windows to building Shs.

600/(iii)

Damages for use of incorrect bricks for front decoration as in plan at Shs. 2/50 per Shs. 5,000/(iv) Damages for replacing the terrazzo on the two staircases at 50 cents per sq. foot Shs. 500/(v) Loss of material due to plaintiffs’ error in placing the foundation of the recess in the Lounge Shs. 200/(vi) Loss of material amounting to 150 wooden squares 4 × 2 pode owing to plaintiffs’ negligence Shs. 2,000/(vii) Loss of material being 10 tons of cement wasted Shs. 2,200/(viii) Loss of material being concrete blocks completely cracked and thus damaging the strength of the building Shs. 5,000/(ix) Loss due to badly made concrete canopies Shs. 3,000/(x) The cost of replastering engaging masons and using extra materials Shs. 4,000/(xi) The cost of labour which the defendant was compelled to engage to assist in the levelling of the yard Shs. 200/sq. ft.

Shs. 62,700/-” In their reply and defence to counterclaim the appellants alleged, inter alia, that the delay in completion of the work was due to the fault of the respondent in failing to supply materials to be supplied by him as and when they were required, in making false accusations of theft against the workmen employed on the work, and in requiring the appellants to carry out the additional work mentioned in the plaint. As regards the sums claimed in the plaint, the learned trial judge held: (1) that the claim for Shs. 13,000/-, the balance of the tenth instalment, was premature as the cause of action could not arise until there had been a check of the measurements; (2) that the work had not been properly completed in that canopies were illconstructed at roof level, that the appellants were responsible for this bad work, and that the respondent was therefore justified in withholding payment of the retention money, that is, the sum of Shs. 7,450/- payable six months after completion; and (3) that additional work was in fact ordered by the respondent, that the agreed rate for this work was Shs. 3/50 per square foot, and that the amount due to the appellants in respect of this work was Shs. 3,976/-. He accordingly gave judgment for the appellants on their claims in the plaint in the sum of Shs. 3,976/-. Page 1075 of [1959] 1 EA 1071 (CAM) As regards the respondent’s counterclaim, the learned judge held: (1) that except for item (ix) the respondent had failed to substantiate the allegations of defective work specified in the defence and counterclaim, but that in respect of item (ix), the alleged defective canopies, the respondent’s claim for Shs. 3,000/- as damages was justified and should be allowed; (2) that the appellants had failed to substantiate their allegation that delay in completion was due to the respondent’s failure to supply materials or to his making false accusations of theft; that the appellants should not be allowed more than a maximum of eight weeks for the additional work ordered by the respondent; but that by reason of the fact that certain of the additional work, which would take three weeks to complete, was ordered on May 10, 1956, the completion date under the original contract was impliedly extended to May 31, 1956; and that the respondent was entitled to damages for non-completion at the rate of Shs. 8,000/- per month for the period of two months and twenty-two days from June 1 to August 22, that is to say, Shs. 21,677/50. He accordingly gave judgment on the counterclaim in the sum of Shs. 24,677/50. The question of costs was reserved for further argument. In the event the learned judge allowed the appellants one-seventh of their costs as taxed upon the amount of their claim, and the respondent two-fifths of his costs as taxed upon the amount of his counterclaim. Interest at the rate of 6 per cent. per annum from the date of judgment was awarded to the parties on the amounts awarded to them respectively. The appellants have appealed to this court against the learned judge’s decision in so far as the decision: (a) dismissed the appellants’ claim for Shs. 20,450/-; and (b) ordered the appellants to pay to the respondent the sum of Shs. 24,677/50.

The appeal is also expressed to be against the orders in respect of costs. The appellants have not appealed against the award of Shs. 3,976/- instead of Shs. 6,786/- in respect of additional work; nor is there any cross-appeal by the respondent in respect of those parts of his counterclaim which were not allowed. It follows that the matters in issue on the appeal are: (a) the dismissal of the appellants’ claim for Shs. 13,000/-, being the balance claimed to be unpaid in respect of the tenth instalment payable under the contract; (b) the dismissal of the appellants’ claim for the last instalment of Shs. 7,450/- alleged to be payable six months after completion; (c) the award of Shs. 3,000/- as damages against the appellants in respect of alleged defects in the concrete canopies; (d) the award of Shs. 21,677/50 as damages against the appellants in respect of alleged delay in the completion of the work; (e) costs of the proceedings in the Supreme Court. It will be convenient to deal separately with each of these matters. As regards the appellants’ claim for Shs. 13,000/- in respect of the tenth instalment of the alleged contract price, it was alleged in para. 3 of the plaint that: Page 1076 of [1959] 1 EA 1071 (CAM) “the defendant agreed by the said contract to pay the plaintiffs for their work and labour under the said contract a total sum of Shs. 98,450/-; Shs. 91,000/- of which was to be paid by him to the plaintiffs by the time of completion of the construction work in ten instalments of several agreed amounts payable at agreed stages of the construction work during its progress, as set out in the said contract.” As already mentioned, the respondent in his defence contended that the tenth payment was to be subject to a final check measurement. The issues on this point framed by the learned trial judge with the concurrence of counsel for the parties were: “4. On the true construction of the contract was the defendant under an obligation to pay to the plaintiffs a lump sum of Shs. 98,450/- as alleged in para. 3 of plaint, and not a sum to be calculated on a square footage basis? “5. (a) Was the final check measurement a condition precedent to payment of the tenth instalment of Shs. 15,000/- or merely a term of the contract for the determination of the actual amount payable to them? “(b) Has not the defendant waived it (if this defence is open to the plaintiffs on the pleadings) or prevented its observance by the plaintiffs?” The learned trial judge dealt with the matter as follows: “The plaintiffs have by their pleadings rested their cause of action in the suit upon the sole basis that the agreement of June 25, 1955, was a contract for a lump sum, while the defendant contends that it was a contract by measurement and that until such measurement has been carried out, nothing can be held to be due to the plaintiffs by way of balance of money payable for the work done. It was contended by Mr. Budhdeo for the plaintiffs that this agreement is not in the usual terms of a contract by measurement, the normal terms of which provide for payment only after measurement at each stage of construction, whereas under the agreement in this case it is only when the tenth payment accrues that the work becomes subject to measurement, the preceding nine payments being stated lump payments. It is contended that measurement was not a condition precedent to payment but merely a term of the contract for the determination of the actual amount payable. If there is a difference between the two, it is rather too subtle for me to

find any significance in it. If measurement is a term of the contract for the determination of the actual amount payable, then payment cannot be made until the amount is determined–in other words payment is conditional upon measurement, which puts us back to where we were before with no advantage derived other than an exercise in the play on words. Mr. Budhdeo appeared to rely for this flight of fancy upon the following passage in the judgment of Denning, L.J., in Hoening v. Isaacs, [1952] 2 All E.R. 180: ‘In determining this issue question is whether on the true construction of the contract, entire performance was a condition precedent to payment. It was a lump sum contract, but that does not mean that entire performance was a condition precedent to payment. When a contract provides for a specific sum to be paid on completion of specified work, the courts lean against a construction of the contract which would deprive the contractor of any payment at all simply because there are some defects or omissions. The proviso to complete the work is, therefore, construed as a term of the contract but not as a condition. It is not every breach of that term which absolves the employer from his promise to pay the price, but only a breach which goes to the root of the contract, such as abandonment of the work when it is only half done. Unless the breach Page 1077 of [1959] 1 EA 1071 (CAM) does go to the root of the matter, the employer cannot resist payment of the price.’ I cannot see how that case has any bearing upon the question in this case of whether the contract was a measurement or a lump sum one. There is nothing between measurement and performance. If a contract provides that the final payment will be made only after measurement, and as payment for work done is at a rate per square foot, then surely nothing can be paid as a final payment until it is ascertained if anything is due, for, indeed, it may be found on measurement that nothing more is payable. “It is then contended for the plaintiffs that the contract is too imprecise in its terms to allow of it being interpreted as a measurement contract, and Mr. Budhdeo drew attention to the note to cl. 45, the terms of which are quoted above. He argues that the words ‘may be subject’ leave the matter of measurement optional, and that had the words been ‘shall be subject’ the intention would have been precise and unambiguous. I cannot agree with the suggested interpretation of the words contained in this note. It is quite clear to me that in their context the words ‘may be subject’ mean this–‘and in the event of the final check measurement showing that work of a less or greater amount has been done, the sum payable will be adjusted.’ In other words, the necessity or otherwise for adjustment was dependent upon the check measurement. I take the view that this is a measurement contract and was so understood and acted upon by the parties. The preamble sets out that the total area is ‘approximately’ 17,900 square feet, and that it is ‘subject to final check on completion of the building’; cl. 45 opens with the agreement of the defendant to make ‘interim’ payments; the total figure is given as ‘approximate total amount of contract’ and the words and figures are underlined twice; and finally, there is the foot-note. Those stipulations amount in my view to a clear provision for a contract by measurement. “The plaintiffs however have laid their cause of action upon the basis of a lump sum contract, and as they are bound by their pleadings, I cannot see how I can afford them the relief asked for on those pleadings. A number of arguments were urged by Mr. Budhdeo to counter the contentions for the defendant. He contended that the onus was upon the defendant to have the final check made (a contention which in law is, I think, erroneous, the burden being upon the plaintiffs to prove compliance with the condition of measurement); that the plaintiffs were prevented by the defendant from making a final check; that there was substantial performance of

the contract and occupation by the defendant, and that if the contract did make provision for measurement as a condition precedent to payment, the defendant had waived that condition by his conduct. But as I see it, none of these defences are open to the plaintiffs on their pleadings. As there has been no check measurement the plaintiffs’ claim for the sum of Shs. 13,000/-, the balance of item 10 of cl. 45, is premature, as their cause of action cannot arise on their pleadings until there has been a check of the measurements. In my view the plaintiffs’ claim for this sum must fail.” Before us Mr. Nazareth for the appellants argued that on a true construction of the contract measurement of the completed blocks was not a condition precedent to payment of the tenth instalment; that the learned judge discussed “measurement contracts” without defining what he meant by the phrase, and that the phrase does not cover any recognised class of contract; that the broad distinction in building contracts is between contracts “entire” and contracts “not entire”; that this was an entire contract subject to a right of adjustment on the basis of area; that the work to be done was fixed work on an approved Page 1078 of [1959] 1 EA 1071 (CAM) plan of known approximate area on which the price was worked out; that there had never been any request for measurement put forward by the respondent in correspondence prior to the filing of the plaint; that it was open to the respondent to measure out the work himself and offer less payment if that was justified; that it was never suggested that less work had been done than was set out in the plan; that therefore the minimum amount payable under instalment ten was Shs. 15,000/-; and that if measurement was a condition precedent it had been waived by the respondent. I agree that in building contracts an important distinction is between contracts which are entire and those which are not entire, but I do not think the question arises in this case. The contract here is clearly an “entire” contract in that the appellants were under an obligation to construct the whole of the work specified in the contract (see Halsbury’s Laws of England (3rd Edn.) Vol. 3, p. 437). There are, however, varieties of entire contracts, these being described on the same page of Halsbury’s Laws of England. For the purposes of this case the relevant varieties in my view are those numbered (1) and (4) at p. 437 of Halsbury, which are there described as follows: “(1) a contract to construct the whole building or works in consideration of the payment of a fixed sum of money: contracts of this class are often called ‘lump sum contracts’; ............ (4) a contract to construct the building or works for a price to be subsequently ascertained on some fixed basis, for example, by a schedule of prices.” Mr. Nazareth argued that the instant contract fell in class (1), subject to a right of adjustment on the basis of area. With respect, I am unable to agree. In my view the contract clearly falls within class (4), that is, a contract in which the price is one to be ascertained subsequently on a fixed basis, the basis here being a fixed payment per square foot of the actual area of the completed building. This, in effect, is the learned judge’s finding on the construction of the contract, and I respectfully agree with him. When he speaks of “measurement contracts” he is clearly using the term to describe a contract in which the price is to be ascertained by measurement as contrasted with a “lump sum contract”. In my view it is impossible to construe the instant contract as a lump sum contract. It must, I think, follow from this that the action is not maintainable until the price has been ascertained by measurement of the building. No doubt if it could be shown that the respondent had accepted the figure of 17,900 square feet as correct, or had prevented the appellants from making the necessary measurement, the appellants would have been entitled to

rely on that figure. But the appellants have neither pleaded nor established any such matter. The onus is on the plaintiffs to establish the amount to which they are entitled under the contract, and this they have failed to do. I agree with the learned trial judge that the appellants’ claim in respect of instalment 10 of the contract price is premature and must fail. The second matter in issue on the appeal, as set out above, is the dismissal of the appellants’ claim for the last instalment payable six months after completion, but it is convenient to deal first with the third issue, that is to say, the award to the respondent of Shs. 3,000/- damages in respect of alleged defects in the concrete canopies, since the decision on this is relevant to the consideration of the second issue. The learned trial judge found that the canopies were in fact defective. There was evidence to support this finding, and it is not challenged. The appellants contend, however, that they were not responsible for the defects in the canopies, but that these were due to defects in shuttering provided by the respondent Page 1079 of [1959] 1 EA 1071 (CAM) under the terms of the contract for the purpose of the construction of the canopies. The learned trial judge deals with the matter as follows: “Mr. Sondi, among other qualifications, an associate member of the Society of Engineers in London and practising here as a consultant engineer since 1950, stated that if the shuttering was not level, any unevenness in the canopies would be the fault of the carpenter, but that if the shuttering was level, the unevenness would be the mason’s fault. “Unfortunately Mr. Sondi was not examined more closely on this statement, nor was Mr. Beresford asked his opinion as to the extent of a mason’s responsibility in the construction of the canopies where the shuttering was provided by the owner of the building on which he was working. The onus is upon the plaintiffs to satisfy me that the condition of the canopies was not their responsibility. It seems to me that the dictates of common sense must be that the plaintiffs, or shall we say the builders, must accept the final responsibility that the shuttering is so fixed as to allow them to carry out their part of the work to the satisfaction of the owner. According to the plaintiffs, it was the responsibility of the defendant’s carpenters to construct and fit the shutters, and theirs (the plaintiffs) only to fill with concrete. Indeed, it would appear to be their contention that even if the shuttering was clearly, obviously and even ridiculously at fault and out of true, they would have no responsibility in the matter other than to fill with concrete, knowing that the result would be quite contrary to specifications but absolving themselves on the grounds that the responsibility for true levels rested with the carpenters. That is an attitude which I cannot accept. It is my undoubted view that the ultimate responsibility for ensuring that the shutters are laid or fixed level and properly is the builder’s. The construction of them was certainly the defendant’s responsibility, but to enable the builder to construct proper canopies, it is for the builder to check their fitting and, if not satisfied, to complain and take such action as is necessary to remedy the matter. As I have said, the ultimate responsibility is the builder’s and was the plaintiffs in this case. There is no evidence of any complaint by the plaintiffs as to the manner in which the shuttering was constructed and fixed, and, indeed, both the second and third plaintiffs, who were in charge of the construction, are, as I have already said, emphatic to this day that there is nothing wrong with the canopies–an attitude which is quite false having regard to the clear evidence of Mr. Beresford which I unhesitatingly accept as being true. ............ In view of my findings and of the evidence of Mr. Beresford as to the cost of remedying the defects, I think that the defendant’s claim for Shs. 3,000/- as damages is justified, and I allow it.”

I am not prepared to go quite as far as the learned judge in the passage cited. It seems to me that it would be reasonable to draw a distinction between patent defects in the carpentry work, as to which I would agree that the obligation is on the builder to see that they are corrected, and latent defects which the builder cannot be expected to ascertain by reasonable inspection, but which eventually result in defective concrete work. However, I do not think the distinction is of any importance in this case. There is in fact no evidence to indicate whether the defects in the canopies were due to patent or latent defects in the shuttering, or, for that matter, that the defects were due to bad shuttering. As remarked by the learned judge, the appellants’ case was that the canopies were not defective. In the absence of evidence to establish definitely what Page 1080 of [1959] 1 EA 1071 (CAM) was the cause of the defects in the canopies, it seems to me that the matter is really one of onus of proof. The respondent pleaded that the canopies were defective, and the onus was upon him to establish that plea. This he did. Upon this being established, it seems to me that the onus then shifted to the appellants to show that the defective work was no fault of theirs. Prima facie, I think the responsibility for defects in the concrete work rested with the appellants, though, in the view I take, it was open to them to show that the responsibility was not theirs. Accordingly I respectfully agree with the learned judge when he says “The onus is upon the plaintiffs to satisfy me that the condition of the canopies was not their responsibility.” The appellants did not discharge that onus, their case being that there were no defects in the canopies. I therefore agree with the learned judge that the respondent is entitled to damages for the defects. There was some suggestion that the damages awarded in respect of the defective canopies ought to have been Shs. 2,500/- and not Shs. 3,000/- as claimed. Mr. Beresford, on whose evidence the learned judge relied, stated that to remedy certain of the defects in the canopies would cost about Shs. 2,500/-, but he made it clear that this was limited to ensuring a proper discharge of rainwater from the canopies. Defects in the levels would remain, making the canopies unsightly. In the circumstances I think the learned judge was justified in allowing the whole sum of Shs. 3,000/claimed as damages, as it seems a reasonable inference that the unsightly state of the canopies would result in some reduction in the value of the building. I think therefore that the learned judge’s award to the respondent of Shs. 3,000/- damages in respect of defects in the canopies is to be supported. I return now to the dismissal of the appellants’ claim for the last instalment of the contract price. As to this, the learned judge says: “I think the plaintiffs’ claim for the retention money of Shs. 7,450/- may be treated differently and as distinct from the question whether the agreement is a measurement contract or a lump sum contract. It was the tenth payment of Shs. 15,000/- which was to be subject to final check, and while adjustment of that sum would affect the total sum payable to the plaintiffs, it would not affect the amount of the retention money. The defence to the claim for this money is that the building was not completed to the satisfaction of the defendant in contravention of the stipulation contained in the written agreement. The onus is upon the plaintiffs to prove that the defendant was satisfied with the work, or that he has acted capriciously or dishonestly and could not, as a reasonable man, have been dissatisfied.” The learned judge then considers the question of the defective canopies and continues: “The evidence, then, goes to show that the defendant had a genuine and substantial complaint as regards the ill-constructed canopies at roof level. The plaintiffs have quite failed to prove that he

has been unreasonable or capricious in expressing his dissatisfaction with the work, and in my view he must be held to have been justified in withholding the payment of the retention money, and the plaintiffs’ claim in this regard must fail.” The relevant parts of the contract read as follows: “. . .Whereas the contractor has agreed to build the said block of flats, garages and boys’ W.C.s completely and entirely in accordance with the plans and specifications referred to above and to the satisfaction of the Page 1081 of [1959] 1 EA 1071 (CAM) owner and the Municipal Board of Mombasa and whereas in consideration thereof the owner agrees to pay to the contractor the sum of shillings five and cents fifty per square foot (Shs. 5/50) of building on the following terms and conditions: “45. Payments. The owner agrees during the following progress of the buildings to make interim advance payments to the contractor. “11. On completion of six months maintenance period Shs. 7,450.00.” It was contended that the first parts of the above extract from the contract are mere recitals, but I do not think there is any merit in this argument. Although framed as if they were recitals it is clear from the contract as a whole that they are intended to be terms of the contract. Considerable argument was addressed to us on the question whether or not the approval of the respondent was a condition precedent to payment. The learned trial judge has not treated such approval as an absolute condition precedent, but has held that the approval cannot be unreasonably withheld. I see no reason to differ from the view taken by the learned judge. In Hudson on Building Contracts (7th Edn.) at p. 247, the learned author says: “Where work has to be done to the approval of the building owner, such approval cannot, generally speaking, be withheld by him unreasonably.” And in Halsbury’s Laws of England (3rd Edn.) at p. 455, it is said: “Where a building contract provides that the work shall be done to the satisfaction of the building owner, and there is no express condition making his approval a condition precedent to payment, the maxim that ‘no man shall be judge in his own cause’ raises a presumption against any implied contract that such approval is a condition precedent. In the absence of any express condition to the contrary, such approval must not be unreasonably withheld.” I accept these statements of the law, and I see nothing in the contract to suggest in this case that the respondent could unreasonably withhold approval and thereby avoid having to make payment. The learned judge, however, has held that the burden of proving that the respondent: “was satisfied with the work, or that he has acted capriciously or dishonestly and could not, as a reasonable man, have been dissatisfied” was on the appellants. I incline to the view that this is a misdirection, but I do not think that the question of onus of proof really enters into the matter here. The work was undoubtedly completed and handed over, an occupation certificate having been duly obtained. The only defective work the existence of which was established was in the defective canopies. I think the only question for the learned judge to consider was whether the existence of the defects in the canopies was such as would justify the withholding of approval of the buildings as a whole, and he does not appear to have considered the matter in this light. It is, I think, well established that where a lump sum contract (and for this purpose I think the instant contract is analogous to a lump sum contract) is substantially completed, liability cannot be repudiated on the ground that the work, though substantially performed, is in some respects not in accordance with the

contract: H. Dakin & Co. Ltd. v. Lee (1), [1916] 1 K.B. 566; Hoening v. Isaacs (2), [1952] 2 All E.R. 176. In H. Dakin & Co. Ltd. v. Lee (1) Ridley, J., said at p. 568: Page 1082 of [1959] 1 EA 1071 (CAM) “It is said, . . . that because in respect of three small matters the work was not carried out in accordance with the specification the plaintiffs are not entitled to recover any part of the contract price. The work was in my opinion substantially completed, and the defendant has had the benefit of it, for she has been living in the house ever since the repairs were finished. But it is contended that the authorities compel us to hold that the defendant, who has got the benefit of all the work that was done, is not liable to pay anything for it because in those respects the contract has not been absolutely complied with. If that were the law we should be bound to follow it, however much one might regret having to do so, for I think it would be productive of very great injustice. “It seems to me, however, from the authorities that where a building or repairing contract has been substantially completed, although not absolutely, the person who gets the benefit of the work which has been done under the contract must pay for that benefit. On the other hand, if the builder has refused to complete his work, or if the work done is of no use to the other party, or if the work is something entirely different from what was contracted for, then the builder can recover nothing.” It is true that in that case no question of the work having to be done to the satisfaction of the building owner arose, but I think that, on the basis of the principle there expressed, it could not be said that the withholding of approval in respect of a whole building because of defects in a minor part of the building would be reasonable. In the instant case the damages claimed and allowed in respect of the defective canopies are Shs. 3,000/-. It would seem from Mr. Beresford’s evidence that when repairs to the value of Shs. 2,500/- have been carried out the canopies will be perfectly serviceable, though to some extent unsightly. The total value of the contract as estimated is some Shs. 98,450/-. It seems to me wholly unreasonable that approval of the building as a whole should be withheld because of defects amounting in value to less than one thirty-second part of the total value of the building. In Hoening v. Isaacs (2) at p. 181, Denning, L.J., says: “It is, of course, always open to the parties by express words to make entire performance a condition precedent. A familiar instance is when the contract provides for progress payments to be made as the work proceeds, but for retention money to be held until completion. Then entire performance is usually a condition precedent to payment of the retention money, but not, of course, to the progress payments. The contractor is entitled to payment pro rata as the work proceeds, less a deduction for retention money. But he is not entitled to the retention money until the work is entirely finished, without defects or omissions.” It is to be noted in the instant case that the last instalment is not described as retention money, nor has entire performance, or completion to the satisfaction of the respondent, or even bare “completion” been made a condition precedent to its payment. As I have said, I do not think the defects established were such that the respondent could reasonably withhold approval of the building as a whole. I think that the most he would have been entitled to do was to retain out of the last instalment the value of the defects. Since, however, he has recovered damages in respect of the defects, this does not arise. I think the appellants are entitled to recover the amount of the last instalment of the contract price, that is to say, Shs. 7,450/-, from the respondent, and I would vary the learned judge’s decision to this extent.

The next matter to be considered is the award of Shs. 21,677/50 as damages against the appellants in respect of delay in completion of the work. The learned judge dealt with this matter at some length in his judgment, but I think Page 1083 of [1959] 1 EA 1071 (CAM) it is sufficient to refer to the following conclusions which he reaches, and to the latter part of the relevant passage in the judgment. The learned judge finds: (a) that the onus of proving that the delay was caused by the act or omission of the respondent lay upon the appellants; (b) that the appellants had failed to substantiate their allegations that the delay was due to the failure of the respondent to supply a concrete mixer in accordance with the terms of the contract, and to accusations of theft of material made by the respondent which were alleged to have resulted in loss of labour; (c) that additional work ordered by the respondent under three separate plans should not have entailed more than eight weeks additional work; (d) that the third plan entailing additional work, estimated to require three weeks to perform, was ordered on May 10, 1956, whereas the nine-month period provided for in the contract had expired on March 24, 1956; (e) that the ordering of these alterations constituted an implied agreement that the time for completion was extended, at least to the date by which such work should have been completed; that is, to May 31, 1956; (f) that additional work ordered involving the increase in height of a parapet wall and the removal of steel doors and their replacement by wooden doors had not been proved to have caused delay. The learned judge then continues in his judgment as follows: “It follows, therefore that of the alleged factors causing delay, only the following may be considered; the work involved in the three plans, exhibits 3, 4 and 5, and that involved in raising the height of the parapet walls. I have already stated that I consider the defendant responsible for delay until May 31, 1956, in respect of the work involved in the plan, exhibit 5, and it remains only to consider whether any additional time should be allowed for the other work. I have allocated three weeks out of the eight I am allowing as extra time for the third plan. The plaintiffs have stated they would in normal circumstances have been able to complete the whole contract within seven months. They were in fact allowed nine months. Thus, the extra two months more than covered the five weeks necessary to carry out the work involved in plans 3 and 4 and the further time necessary for the parapet wall. Indeed, there were more than two months. The period from March 24 to May 10 was also available to the plaintiffs–some seven weeks, so that it is manifest on the evidence that the plaintiffs were amply compensated in time available for the delays which have been held to have been caused by the act of the defendant. The plaintiffs have thus established only that the defendant is responsible for delay in completion until May 10, 1956. It is contended for the plaintiffs that time was not of the essence of the contract and that a reasonable time for completion should be allowed. But on the plaintiffs’ own showing nine months was more than reasonable time, while I have allowed further time to May 31, 1956– another two months. In any event the defendant has proved that he has suffered damages and he is entitled to such. (3 Halsbury, 443, para. 840). I accept his evidence that he could have let all the flats in the building at a total rental of Shs. 8,000/- per month. The defendant will, therefore, have damages under item (i) of his claim for the sum of Shs. 21,677/50 calculated at Shs. 8,000/per month for two months and twenty-two days.”

Page 1084 of [1959] 1 EA 1071 (CAM) I accept the statement of the law set out at p. 378 of Hudson on Building Contracts (7th Edn.), where it is said: “Where there is no power to extend the time (or such power as there is is inapplicable to the delay which has been caused by the employer), but there is power, e.g., to order extras, and extras are ordered, then (as was said by Lord Esher, M.R., referring to Westwood v. Secretary of State for India (1861), 11 W.R. 261, in Dodd v. Churton, [1897] 1 Q.B., at p. 567) the building owner has rendered it impossible to complete the work by the specified date, and has deprived himself of the right to claim the liquidated damages mentioned in the contract.” See also Halsbury’s Laws of England (3rd Edn.) Vol. 3, p. 490, para. 962. In Dodd v. Churton (3), [1897] 1 Q.B. 562 at p. 566, Lord Esher, M.R., says: “The contract provided for the performance by a certain date of works described in a specification in consideration of the payment of a fixed sum as the price of the works specified. It is admitted that extra work was ordered, and that the necessary result of the builder’s having to do that work was that it took him more time to complete the works than if he had only had to do the work originally specified. It was, no doubt, part of the original contract that the building owner should have a right to call upon the builder to do that extra work, and, if he did give an order for it, the builder could not refuse to do it. The principle is laid down in Comyns’ Digest, condition L (6), that, where one party to a contract is prevented from performing it by the act of the other, he is not liable in law for that default; and, accordingly, a well recognised rule has been established in cases of this kind, beginning with Holme v. Guppy, 3 M. & W. 387, to the effect that, if the building owner has ordered extra work beyond that specified by the original contract which has necessarily increased the time requisite for finishing the work, he is thereby disentitled to claim the penalties for non-completion provided for by the contract. The reason for that rule is that otherwise a most unreasonable burden would be imposed on the contractor. Then this further complication arose. Contracts were entered into by which the builder agreed to do any extra work which the building owner or his architect might order. It was urged in such cases, as, for instance, in Westwood v. Secretary of State for India, 11 W.R. 261; 7 L.T. 736, that the fact that the builder had contracted to do any extra work that might be ordered prevented the application of the rule which I have mentioned. But it was held that that was not so. Then there came another case which was said to be an exception from the rule, namely, that which existed in Jones v. St. John’s College, L.R. 6 Q.B. 115. There it was alleged on the pleadings that there was an agreement by which the builder agreed that, if any extra work was ordered, then, whatever that work might be, he would undertake nevertheless to complete the works within the time originally specified by the contract; and it was thereupon held that, if the builder was foolish enough to make such an agreement, he was bound by it and must take the consequences. The whole question here is whether on the construction of this contract, by which undoubtedly the builder has undertaken to perform any extra work that may be ordered, he has agreed to take upon himself the burden which the builder had taken upon himself in Jones v. St. John’s College; in which case, however foolish and unreasonable such an agreement may be, he must stand by it. One rule of construction with regard to contracts is that, where the terms of a contract are ambiguous, and one construction would lead to an unreasonable result, the court will be unwilling to adopt that construction. In Jones v. St. John’s College the court had no opportunity of construing the contract really made. The demurrer admitted the Page 1085 of [1959] 1 EA 1071 (CAM)

statement on the pleadings that the builder had entered into the unreasonable agreement alleged. I cannot construe the contract in this case as containing such an agreement by the builder. I think the words in the contract relied upon by the defendant are capable of another construction which would be perfectly reasonable. It seems to me therefore that the case is not brought within the authority of Jones v. St. John’s College, but falls within the class of cases, of which Westwood v. Secretary of State for India is an example, where it has been held that, although the building owner was entitled to give orders for extras, if, by so doing, he has rendered it impossible to complete the work by the specified date, he has deprived himself of the right to claim the liquidated damages mentioned in the contract.” It seems to me that the instant case clearly falls within the rule in Dodd v. Churton (3), with the exception that in this contract there is no provision for liquidated damages, and the respondents’ claim was for unliquidated damages. As to this, in Halsbury’s Laws of England (3rd Edn.) Vol. 3 at p. 492 it is said: “Recovery of unliquidated damages. Where the time fixed by the contract has ceased to be applicable in consequence of some delay by the employer, and consequently his right to liquidated damages has gone, he can have no claim for unliquidated damages provided the builder completes within a reasonable time. Cf. Tyers v. Rosedale and Ferryhill Iron Co. (1875), L.R. 10 Exch. 195; Ford v. Cotesworth (1870), L.R. 5 Q.B. 544.” I have no doubt that the effect of the ordering of the additional work in this case was to set the time at large, but I think the appellants were still under an obligation to complete the work within a reasonable time. The learned judge did not base his decision on completion within a reasonable time, but he did consider what would be a reasonable time for completion, and I see no reason to differ from his conclusion in this respect. With respect, I do not agree with his argument that, because the appellants stated that in normal circumstances they would have been able to complete the contract in seven months, the nine months allowed in the contract would more than cover the time required to complete the extra work involved in plans 3 and 4. The appellants contracted to be allowed nine months to complete the work provided for in the contract, and they were entitled to take that time for that work. The appellants’ statement, however, does indicate that the nine months provided for in the contract was a reasonable time within which the appellants ought to have completed the original work. The learned judge has found that a reasonable time for completion of the extra works ordered would be eight weeks, and, as I have said, I see no reason to disagree with this conclusion. By reason of the order for the last item of extra work not having been placed till May 10, the learned judge has fixed the reasonable completion date as May 31 in view of his assessment of three weeks as the reasonable time involved in completion of the last item of extra work. As he points out, the additional period to May 31 amply covers the time required for completion of the other items of additional work. Mr. Nazareth argued that there had been a waiver of the completion date fixed by the contract, and relied on s. 63 of the Indian Contract Act, which applies in Kenya. In the circumstances of this case I do not think that s. 63 of the Contract Act really enters into the matter, nor does the question of waiver arise. The ordering of the additional work set the time for completion at large, but the appellants were still under the obligation to complete within a reasonable time. The learned trial judge has held that the reasonable time for completion was May 31, 1956. I am not prepared to differ from that Page 1086 of [1959] 1 EA 1071 (CAM) conclusion. The other alleged causes of delay were not seriously relied on at the hearing of the appeal, nor was the measure of damages challenged in argument, though it is raised in the

memorandum of appeal. It is sufficient to say that I see no reason to disturb the learned judge’s decision in relation to these matters. I therefore think the learned judge’s award of Shs. 21,677/50 damages to the respondent in respect of the delay in completion is to be supported. In the result I think the learned trial judge’s decision should be varied to the extent that judgment should be entered for the appellants on the plaint in the sum of Shs. 11,426/-, instead of Shs. 3,976/- allowed by the learned judge, but that the learned judge’s award of Shs. 24,677/50 as damages to the respondent on the counterclaim should be affirmed. In view of this conclusion I think the order for costs in the court below should be varied to the extent of allowing the appellants one-half of their costs as taxed on the amount of their claim; the order as to costs on the counterclaim should stand. As regards costs of the appeal the appellants have succeeded on one only of the issues raised in the appeal. I would allow them one-third of the costs of the appeal as taxed. Gould JA: I agree with the conclusions of the learned vice-president and that the appeal should be allowed to the extent indicated in his judgment. I agree also with the proposed order for costs. Windham JA: I also agree. Appeal allowed in part. For the appellants: JM Nazareth QC and EP Nowrojee EP Nowrojee, Nairobi For the respondent: RP Cleasby Atkinson, Cleasby & Co, Mombasa CUSTOMARY Pazi v Mohamed [1968] 1 EA 111 (HCT) Division: High Court of Tanzania at Dar-Es-Salaam Date of judgment: 8 December 1967 Case Number: 97/1966 (34/68) Before: Hamlyn J Sourced by: LawAfrica [1] Evidence – Marriage – Presumption of – Mohammedan Marriage – Cohabitation as husband and wife for several decades – Indian Evidence Act 1872, s. 50 (T.). [2] Mohammedan Law – Marriage – Cohabitation as husband and wife for several decades – Presumption of marriage arising – Indian Evidence Act 1872, s. 50 (T.). Editor’s Summary The inheritance of a deceased’s estate under the law of the Shafi sect of Islam depended on whether the deceased widow was lawfully married to the appellant. There was evidence that the parties had cohabited as husband and wife for several decades and the only points in issue were (i) whether such cohabitation raised a presumption as to the existence of a valid marriage and (ii) if so, whether any evidence had been led to rebut such a presumption. Held –

(i) section 50 of the Indian Evidence Act 1872 provides that evidence of continual cohabitation as husband and wife is admissible to raise the presumption of marriage in Islamic law; (ii) there was ample evidence of continual cohabitation and the onus was therefore on the respondent to rebut the presumption of marriage; (iii) there was no such evidence before the court. Appeal allowed. Decision of the district court set aside and that of the primary court restored with costs in all three courts to the appellant. No cases referred to in judgment Judgment Hamlyn J: This appeal concerns a question of fact; whether the woman Fatuma d/o Ali or Ambari (now deceased) was Page 112 of [1968] 1 EA 111 (HCT) lawfully married to the appellant, Ali s/o Pazi. The claim, which arises out of the decision, is in respect of certain property left by the deceased woman and as to who should inherit it. There is no dispute that all the parties concerned in these proceedings are members of the Shafi sect of Islam, nor is the division of the property in issue. Once the decision as to whether there was a valid marriage between the appellant and the deceased woman has been reached, the question of inheritance presents no difficulty. Counsel for the respondent laid stress upon the contention that the views of the Shafi sect are most conservative and that, this being so, the appellant must show that all the minutiae of Islamic law have been meticulously complied with in so far as the alleged marriage ceremony is concerned. He urged upon me that no presumption as to marriage arises in cases of this nature and that only upon strict proof of every legal requirement as to marriage can such marriage be held to have taken place. Thus, the appellant must show that a wali was present and that such guardian carried out his prescribed duties; he must show that the ceremony was performed by an authorized person and that the necessary two qualified witnesses were in attendance. Now all this is undoubtedly correct save that neither counsel has referred this court to the underlying principle (which obtains in Islamic law as it does in many other codes) that there is a presumption of marriage where a man and woman have lived together as man and wife for a considerable period of time. I cannot accept the contention of counsel for the respondent that no such presumption arises in the law of Islam in general or in that of the Shafi sect in particular. To do so would be to lay upon the appellant a burden which he would almost certainly be unable to discharge after so considerable a period of time. Nor can I agree that the absence of a certificate of marriage has any particular significance, other than (to some minor degree) supporting the respondent’s case. The failure to produce such written evidence may be accounted for in many ways after a period of some forty years. There is no magic in such document, nor does its non-production necessarily raise a presumption that no marriage took place between the parties. The district court, in its appellate jurisdiction, differed from the decision of the primary court of Ilala and held that there was no real proof of the marriage. But nowhere in its judgment did it refer to the question of onus of proof and the magistrate, in deciding the matter, appears to have acted on the assumption that it was for the appellant to prove his case. That is not so, for there is a presumption of law in his favour. It appears that the Statement of Islamic Law, published as Government Notice No. 222 of 1967, has as yet not been brought into force and consequently this court is not able to adopt direct from

it cl. 41 which governs presumptions in matters of this nature. But such Statement embodies the existing provisions of the law of Islam and is further supported by s. 50 of the Indian Evidence Act. Even prior to 1872 when that Act became law, evidence of continual cohabitation as husband and wife was admissible to raise a presumption of marriage in Islamic law and a number of Indian cases support this view. It is however necessary that such cohabitation as is shown be proved as that of husband and wife, for no other form of cohabitation suffices. Both parties agree that there was cohabitation between the appellant and the woman lasting over several decades; the appellant himself in the primary court claims that she was his wife. There was independent evidence in that court showing that Ali Pazi and the woman lived together as husband and wife, and the woman Fatuma d/o Abdullah informed the court that, at the time that she (Fatuma) became friendly with the deceased woman, “she was married and told Page 113 of [1968] 1 EA 111 (HCT) me that her husband was Ali Pazi”. She added “I know that Ali Pazi was the husband of the deceased Fatuma Ambari”. There is, I consider, ample evidence in the appellant’s case to establish both the fact of cohabitation and that such cohabitation was patently that of man and wife, and, this being the case, the onus falls upon the respondent to show that there was in fact no subsisting marriage. It is I think here (upon this question of presumption) that the district court has gone astray. Both in respect of the relationship of the wali and in the non-production of a certificate of registration of the marriage, the court has viewed the matter as one in which the onus lay upon the appellant. As a result of the man-and-wife cohabitation over so long a period, which was clearly established, it was upon the respondent to produce evidence to show that there was in fact no marriage between these persons. There is evidence of the presence of an acceptable wali and of the required witnesses. There was also evidence (which was un-rebutted) that a kadhi named Hamisi Mamboya performed the marriage ceremony. The respondent has failed to produce any evidence which satisfactorily sets aside the presumption of marriage between the appellant and the woman Fatuma, while there is considerable evidence supporting the presumption. In the event, therefore, this appeal must be allowed and the decision of the district court is consequently set aside, that of the primary court being restored. The appellant will have the costs of this appeal and his costs in the courts below. Appeal allowed. For the appellant: Awtar Singh For the respondent: SA Kitabwalla DIVORCE Ernest Henry Powell Mallinson v Flora Maclean Mallinson [1961] 1 EA 185 (CAN) Division: Court of Appeal at Nairobi Date of judgment: 25 January 1961 Case Number: 44/1960 Before: Sir Alastair Forbes V-P, Gould JA and Connell J

Appeal from: H.M. Supreme Court of Kenya–Farrell, J [1] Divorce – Desertion – Husband employed away from matrimonial home – Refusal by wife to join husband – Whether refusal necessarily constitutes desertion – Burden of proof. Editor’s Summary In 1950 the appellant, a retired officer, and the respondent acquired and lived at the matrimonial home in Nanyuki. Later that year the appellant to supplement his pension sought and obtained temporary employment at a school at Gilgil. He remained there until 1954, returning to Nanyuki for holidays and later took a temporary position at Nyeri. In 1955 the appellant obtained a post as assistant master at a school at Gilgil on a four years contract from January, 1956. He then invited the respondent to join him at Gilgil and she refused. In 1959 the appellant petitioned for a divorce alleging that the respondent’s refusal to join him at Gilgil constituted desertion without just cause. The trial judge dismissed the petition, holding, inter alia, that he could find nothing in the evidence to suggest that the respondent was not ready and willing to have the appellant at the Nanyuki house during holidays; that there was no evidence after the original invitation of any further attempt by the appellant to persuade the respondent to join him at Gilgil; that it was to be inferred that after the respondent’s first refusal the appellant acquiesced in the respondent remaining at Nanyuki; that whilst the request was not unreasonable, the respondent might have considered that the request was not made very seriously, that in the circumstances the refusal by the respondent was not wholly unreasonable and therefore the refusal did not indicate any intention on the part of the respondent to desert the appellant. On appeal it was submitted inter alia that the trial judge erred in holding that the respondent’s refusal to join the appellant at Gilgil was not unreasonable and that she had no intention to desert, that he misdirected himself (a) by taking into account the alleged failure of the appellant to attempt to persuade the respondent to change her mind, and (b) in holding that if the respondent had been guilty of desertion, the appellant had acquiesced in her refusal by failing to try to persuade her to change her mind and that he failed to direct himself that once desertion had been proved to begin, a presumption would arise that nothing had happened to preclude the appellant from asserting that the respondent continued in a state of desertion. Counsel for the respondent conceded the last two grounds but contended that desertion had not begun. Held – (i) the judge’s finding that the appellant acquiesced in the respondent’s refusal to join him could not be supported. (ii) the refusal of the respondent to join the appellant was unreasonable. (iii) however the burden of proof, which is heavier than in an ordinary civil action lay on the appellant and even after giving full weight to the appellant’s invitation to the respondent to join him, the evidence fell short of establishing an animus deserendi on the part of the respondent. Appeal dismissed. Page 186 of [1961] 1 EA 185 (CAN) Cases referred to: (1) Dunn v. Dunn, [1948] 2 All E.R. 822. (2) Walter v. Walter (1949), 65 T.L.R. (R.) 680. (3) Harriman v. Harriman, [1909] P. 123. (4) Bartram v. Bartram, [1949] 2 All E.R. 270.

(5) Watt (or Thomas) v. Thomas, [1947] 1 All E.R. 582. (6) Hosegood v. Hosegood (1950), 66 T.L.R. 735. January 25. The following judgments were read: Judgment Sir Alastair Forbes V-P: This is an appeal from a judgment and decree of the Supreme Court of Kenya dismissing with costs a petition for dissolution of marriage by a husband (now the appellant) on the grounds of desertion. The petition is dated June 12, 1959, and alleges that the respondent deserted the appellant without just cause for a period of at least three years immediately preceding the presentation of the petition. The particular act relied on as constituting desertion was the alleged refusal of the respondent, in or about January, 1956, to join the appellant and live with him at Pembroke House School, Gilgil, where the appellant had obtained employment as assistant master for a period of four years. The petition alleges: “Your petitioner requested the respondent to join him at Pembroke House School aforesaid yet she refused to do so and in the course of correspondence indicated her intention of bringing cohabitation between your petitioner and the respondent permanently to an end and has ever since January, 1956, without cause or the consent of the petitioner and with such intention, lived separate and apart from him.” In her answer to the petition the respondent stated, inter alia: “6. That the respondent admits that she has since January, 1956, lived separate and apart from the petitioner but avers that this was due to the conduct of the petitioner who failed to provide any suitable accommodation for her where she could live and cohabit with him and further avers that she requested the petitioner to make available for her suitable accommodation where she could live and cohabit with him but the petitioner failed and has at all material times continued to fail to provide such accommodation for her as aforesaid. For the reasons aforesaid the respondent has been obliged to continue to live in the matrimonial home at Nanyuki in the said Colony no other home or accommodation being available or having been provided for her by the petitioner. “7. That the respondent now is and has at all material times been ready and willing to live and cohabit with the petitioner provided that suitable accommodation is made available for her by the petitioner.” The facts leading up to the alleged desertion are fully stated in the judgment of the learned trial judge. For the purposes of this appeal it is sufficient to say that the parties, who are both elderly, were married in India in the year 1928, and that the three children of the marriage are all of age; that the appellant retired from the Indian Army in 1947, and in or about 1948 the parties decided to make their home in Kenya; that about 1950 a house at Nanyuki was purchased in the joint names of the appellant and respondent; that of necessity the appellant had to seek employment to supplement his army pension, and obtained employment in 1950 as an assistant master at Pembroke House School, Gilgil, on a temporary basis, and remained there till 1954; that during this time he could and did return to the house at Nanyuki, Page 187 of [1961] 1 EA 185 (CAN) which was then the matrimonial home, only during the school holidays; that during this period the emergency broke out in consequence of which the respondent suffered considerable strain which had an adverse effect upon her, and made her anxious that the appellant should return to the Nanyuki home; that the appellant was unable to obtain work in the Nanyuki area, but did for a time obtain a temporary post at Nyeri, where he remained till the end of the year 1954; that in 1955 he accepted a post as assistant master at Greensteads School, Nakuru, at a salary of £25 or

£30 per month more than he was receiving at Nyeri, and remained there till the end of the year 1955; that thereafter he was offered and accepted a post as assistant master at Pembroke House School, Gilgil, on contract terms for a period of four years from January, 1956; and that during the period 1950 to 1955 relations between the appellant and respondent deteriorated steadily, letters written by the respondent to the appellant, some of which were exhibits, being abusive in tone and far from calculated to make the appellant feel that he was welcome in his own home. So far the facts were not in dispute. There was a conflict, however, as to the events connected with the alleged invitation by the appellant to the respondent to join him at Gilgil after he had secured the four-year post. As to these, the learned judge accepted the respondent’s version as to the sequence of events, holding that the appellant and Mr. Hazard, Headmaster of Pembroke House School, must be mistaken; but as to the events themselves, he accepted the evidence of the appellant and Mr. Hazard, concluding that the respondent was untruthful as to these. It is the events themselves which matter, the precise times having little significance. The learned judge said: “More important, however, than any question as to dates is the question whether an offer was made to the respondent of a residence at Pembroke House, to be available to her from January, 1956, onwards. On this point there is a clear conflict of evidence between the petitioner and the respondent. If the respondent is to be believed, she herself suggested that she should come to live in the cottage which she had seen and was then told that it was not available. According to the petitioner, he urged her to come and live with him there and she refused to do so ‘at any price’. I have found nothing in the correspondence to help me to resolve this conflict. The evidence of Mr. Hazard is clear that the cottage was in fact available, and I find it difficult to believe that the petitioner deliberately misled the respondent by telling her that it was not available. I find it difficult, too, to believe that the respondent is deliberately lying when she says that the petitioner so informed her, but I have reluctantly come to the conclusion that the respondent is not telling the truth about this, and that the petitioner is speaking the truth when he says that the cottage was in fact available and that the respondent was so informed. I accordingly find that the petitioner did offer the respondent a home at Gilgil which it is agreed was or could have been made suitable, to be available in January, 1956, and asked the respondent to join him there and that the respondent refused to do so. It is on that refusal that the charge of desertion is based.” These findings of fact by the learned trial judge are not challenged. The learned judge then proceeds to consider the law and concludes, relying on Dunn v. Dunn (1), [1948] 2 All E.R. 822 and Walter v. Walter (2) (1949), 65 T.L.R. (R.) 680, that: “the mere refusal of the wife to join the husband in the place where he is ready to receive her is not necessarily desertion unless the refusal is in the circumstances unreasonable.” He accordingly proceeds to consider this question, and the question whether the respondent’s refusal indicated an intention to desert. As the learned judge’s Page 188 of [1961] 1 EA 185 (CAN) conclusions on these aspects of the matter are challenged, it is necessary to set out the relevant part of the judgment in full. It is as follows: “In this case the respondent’s refusal to join her husband at Gilgil must be looked at against the background of the history of the marriage during the immediately preceding years. The parties had come to Kenya with the intention of setting up a home there for themselves and their two daughters, and since the purchase of the house at Nanyuki in 1950 that had unquestionably been the matrimonial home. The daughters had subsequently taken up employment away from home, but used to return there for holidays and at any rate to the respondent it was important that there

should be a home to which they could return. The respondent had lived there throughout, often in most unpleasant circumstances. The petitioner, rightly or wrongly, had taken up employment away from home, but used to return there in his holidays, and right up to 1956 at any rate, it was his home as well as hers, though towards the end of the period his visits tended to become shorter and more infrequent. Though the petitioner had obtained employment at Gilgil on a contract for at least four years, to the respondent there was a permanency about the home at Nanyuki which may well have appeared to be lacking in the proposed new home at Gilgil. That in itself is not a ground for refusing any change, but it is an element to be considered, as it was in Dunn v. Dunn, and while complaints were made by the petitioner that when from time to time he returned the respondent made him unwelcome in various ways. I find nothing in the evidence to suggest that she was not ready and willing to have the petitioner there during his holidays whenever he could get them, as was found to be the case with the respondent in Dunn v. Dunn (supra). “To constitute desertion there must not only be de facto separation, but an animus deserendi. So far as the respondent was concerned, her refusal to go to live at Gilgil would not have put an end to the marriage as it had existed for the last six years, when her husband had been working away from home, but would have left the existing state of affairs unchanged, with the matrimonial home still in existence and available to both the parties as it had been in the past. In those circumstances it is difficult to argue that the respondent was showing an intention to desert her husband, as she would have done if she had refused to live in the only place which could have been regarded in the future as a matrimonial home. Since the war the petitioner had found five different employments, all of which required him to live away from home. During the early days of the emergency the respondent had urged him to come back and live with her at Nanyuki, and while it has not been shown to my satisfaction that any particular job had been offered to him in that area, I formed the impression that the petitioner had not shown any great enthusiasm to find a job there. Whether that is right or wrong, I think the respondent had reason to believe that the petitioner had no great desire to live at home with her. I have already referred to the question whether when he was employed at Greensteads he invited the respondent to join him there; and whether he did so or not, it is clear on the evidence, that he did not press the respondent to do so. Then towards the end of 1955 he asked her to join him at Pembroke House. In view of his previous attitude it is material to consider the degree of urgency with which his invitation was given. There is all the difference between a casual suggestion that it would be a good idea if the respondent came to join him, and an insistent request that she should do so, coupled with some clear intimation that her failure to do so might put an end to their marriage. “The evidence of the petitioner which I have already discussed refers Page 189 of [1961] 1 EA 185 (CAN) to two requests, (a) by letter, to which his daughter replied saying that the respondent did not wish to come, and (b) orally, at the time of her visit to Pembroke House. As I have accepted that the respondent is correct in placing her visit in September, 1955, it follows that the first request must have been in discussion at that time, and that the letter to his daughter must have been later. The daughter’s evidence is that the letter (if it is the same letter) referred specifically to a job being available for the respondent. This could, of course, imply that the respondent should come and reside at the school. But even if the letter can be construed as a further request to the respondent to come and live there, it is a strange way to make such a request, by means of a letter to the daughter.

“In an advocate’s letter to the respondent’s advocates dated September 24, 1957 (exhibit 2, No. 7), it is stated that the petitioner ‘made several subsequent attempts to persuade her to join him’. “When asked about these subsequent attempts, the petitioner said they were made direct or through his daughter. One made through his daughter has been mentioned. I have now to see what evidence there is of any direct attempts. No evidence has been given of any other oral requests and it is accordingly necessary to look at the correspondence. In this connection it must be borne in mind that not all the correspondence is before the court. “On May 29, 1956, the respondent writes primarily about the petitioner’s proposed visit to England, and incidentally mentioning repairs required to the house at Nanyuki. The petitioner in his reply (exhibit 1, No. 5) refers briefly to the question of repairs, but is silent as to any suggestion that the house should be given up, and that the respondent should come to live at Gilgil. “In a letter dated July 6, 1956, the respondent begs the petitioner to forego his trip to England and to try to keep a home together for the girls; and on the same date a letter is sent by her then advocates demanding that necessary repairs should be done to the house and that the petitioner should forego his trip (exhibit 2, No. 1). The reply from the petitioner’s advocates (exhibit 2, No. 2) is silent as to any alleged desertion by the respondent, and contains no request that she should come to Gilgil. In a letter of October 12, 1956, the petitioner complains that the respondent has left the Nanyuki house (a point not without significance) and gone to join her daughter in Tanganyika for some months. The letter asks about the respondent’s future plans, but contains no further suggestion that she should come to Gilgil. The reply (exhibit 1, No. 9) stresses the need to provide a home for the two daughters, and suggests selling the Nanyuki house and buying one in Nairobi. The letter does not indicate that the writer is conscious of any pressure by the petitioner for her to join him at Gilgil. In all the correspondence so far mentioned the proposal that she should do so appears to have been forgotten. “On June 2, 1957, the petitioner writes (exhibit 1, No. 10) saying it is five months since the respondent left the Nanyuki house for Tanganyika and asking whether she wishes ‘to return and resume our married life’. The natural interpretation of this letter is that the petitioner wishes her to return to Nanyuki. It is difficult to read into it any suggestion that she should come to Gilgil. There follow a number of other letters and it is not until the advocate’s letter of September 24, 1957, that any suggestion is made that the respondent is in desertion by reason of her refusal to live with the petitioner at Gilgil. “The respondent for her part says that since the petitioner went to live at Pembroke House, nothing has been said about any accommodation for her at Gilgil. The petitioner’s explanation is that he would have found Page 190 of [1961] 1 EA 185 (CAN) accommodation if she had offered to come. But apart from the one letter to his daughter, there is nothing in the correspondence or the evidence of the petitioner which indicates that any further attempt was made to persuade the respondent to join him after the original invitation, and the inference I draw from the evidence as a whole is that the petitioner after the respondent’s first refusal acquiesced in her remaining at Nanyuki. “On a consideration of all the evidence, both oral and in correspondence, I find that in September, 1955, a request was made to the respondent to join the petitioner at Gilgil in January, 1956: that the request was made without previous discussion, the possibility only recently having arisen; and that there is no sufficient evidence that the request was ever repeated, either between

September, 1955, and January, 1956, or afterwards until the advocate’s letter of September 24, 1957: and that from this failure to follow up the matter it may be inferred that the request was not in the first place put forward with any strong degree of insistence. The request was not in itself unreasonable: but neither in my view was the refusal in the circumstances wholly unreasonable. The petitioner had been content to live apart from the respondent for a number of years, and there is no suggestion that the respondent was in desertion before January, 1956, when the respondent was living in the matrimonial home at Nanyuki. Before agreeing to the petitioner’s request the respondent would in the circumstances reasonably require to be satisfied that the petitioner genuinely desired her to come and live with him at Gilgil, and in the absence of any insistence on his part or any renewal of the request it may well have appeared to her that the request was not one which he put forward very seriously. Her refusal does not appear to me in the circumstances to indicate any intention to desert and without such intention there can be no desertion. Even if the refusal did constitute desertion at that moment, I find that the petitioner acquiesced in her refusal by his failure to attempt to persuade her to change her mind, and consent by the other spouse puts an end to desertion. The onus is on the petitioner to show desertion without cause for a period of three years immediately preceding the presentation of the petition, and I find that the petitioner has not discharged that onus.” The grounds of appeal are as follows: “1. The learned trial judge erred in holding that the refusal of the respondent to join the appellant at Gilgil was not unreasonable and that there was no intention to desert on her part. “2. The learned trial judge misdirected himself on the facts when considering the issue whether the refusal of the respondent as aforesaid constituted desertion, in taking into account the alleged failure of the appellant to attempt to persuade the respondent to change her mind. “3. The learned trial judge failed to direct himself adequately as to the effect of the letters written by the respondent to the appellant in 1955 and 1956 on her intention to desert and the unreasonableness of her refusal to join the appellant at Gilgil. “4. The learned trial judge misdirected himself in law and on the facts in holding that if the respondent by her refusal as aforesaid had been guilty of desertion, the appellant had acquiesced in the respondent’s refusal by his failure to attempt to persuade her to change her mind and thereby put an end to the desertion. “5. The learned trial judge erred in law in failing to direct himself that once desertion had been proved to begin, a presumption would arise that nothing had happened to preclude the appellant from asserting that the respondent continued in a state of desertion.” So far as grounds 4 and 5 are concerned, I think, with the greatest respect Page 191 of [1961] 1 EA 185 (CAN) to the learned judge, that they are well founded. In Latey on Divorce (14th Edn.) at p. 132 it is stated: “Passive acquiescence by one spouse in a state of abandonment forced on him or her by the other spouse does not terminate the desertion . . . The intention to desert is presumed to continue unless the deserter proves genuine repentance and reasonable attempts to get the other spouse back.” In Harriman v. Harriman (3), [1909] P. 123 at p. 148, in a passage which is cited in Latey, Buckley, L.J., said: “Desertion does not necessarily involve that the wife desires her husband to remain with her. She may be thankful that he has gone, but he may, nevertheless, have deserted her.”

In Bartram v. Bartram (4), [1949] 2 All E.R. 270 at p. 272, Bucknill, L.J., said: “. . . it seems to me that the husband is entitled to say that the desertion once established continues until it is proved that it has been brought to an end.” And at p. 273, Denning, L.J., said: “Once the period of desertion has begun to run, it does not cease to run simply because the parties attempt a reconciliation and for that purpose come together again for a time. That was laid down by Lord Merriman, P., in Mummery v. Mummery, [1942] 1 All E.R. 553 and has never been doubted since. Indeed, I would say in such a case the period of desertion does not cease to run unless, and until, a true reconciliation has been effected, as to which see Mackrell v. Mackrell, [1948] 2 All E.R. 858. Any other view would greatly hamper attempts at reconciliation, because it would mean that the deserted party would be disinclined to take the other back for fear of losing his legal rights in case the reconciliation was unsuccessful.” I think there is no doubt on the authorities that the principles are correctly stated in Latey, and the learned judge’s finding that: “Even if the refusal did constitute desertion at that moment, I find that the petitioner acquiesced in her refusal by his failure to attempt to persuade her to change her mind, and consent by the other spouse puts an end to desertion” cannot be supported. Counsel for the respondent, in effect, conceded that he could not contest grounds 4 and 5 of the memorandum of appeal, but he submitted that the decision challenged in ground 4 was obiter and not material to the decision, and that ground 5 did not arise as the learned judge had held that desertion did not begin. The decision challenged in these grounds would, of course, be material if the court were to hold that the learned judge was wrong in holding that desertion had not begun, but, as I understand it, counsel for the respondent relied solely upon the learned judge’s finding that desertion did not begin. The question whether or not the respondent’s refusal to join the petitioner at Gilgil did constitute an act of desertion on the part of the respondent was, of course, the principal issue before the Supreme Court; and the appellant can only succeed if he can satisfy this court that it ought to interfere with the learned judge’s conclusion on that issue. That conclusion, which is challenged in grounds 1, 2 and 3 of the memorandum of appeal, is largely a conclusion of fact, though ground 2 involves the application of the same legal principles as are referred to in grounds 4 and 5. Page 192 of [1961] 1 EA 185 (CAN) The principles upon which an appellate court will interfere with a finding of fact by a trial judge were stated by Viscount Simon in Watt (or Thomas) v. Thomas (5), [1947] 1 All E.R. 582 as follows at p. 583: “Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law (e.g., on a case stated or on an appeal under the County Court Acts) an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached on that evidence should stand, but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law), the appellate court will not hesitate so to decide, but if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies is entitled

to great weight. This is not to say that the judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given. . . . I agree . . . that the true rule is . . . that a court of appeal should ‘attach the greatest weight to the opinion of the judge who saw the witnesses and heard their evidence’, and, consequently should not disturb a judgment of fact unless they are satisfied that it is unsound. It not infrequently happens that a preference for A.’s evidence over the contrasted evidence of B. is due to inferences from other conclusions reached in the judge’s mind rather than from an unfavourable view of B.’s veracity as such. In such cases it is legitimate for an appellate tribunal to examine the grounds of these other conclusions and the inferences drawn from them, if the materials admit of this, and, if the appellate tribunal is convinced that these inferences are erroneous and that the rejection of B.’s evidence was due to the error, it will be justified in taking a different view of the value of B.’s evidence. I would only add that the decision of an appellate court whether or not to reverse conclusions of fact reached by the judge at the trial must naturally be affected by the nature and circumstances of the case under consideration.” It must further be borne in mind that the burden was on the appellant to prove beyond reasonable doubt that the respondent deserted him. As to this legal burden of proof, Denning, L.J., said in Dunn v. Dunn (1), at p. 823: “The legal burden throughout this case is on the husband, as petitioner, to prove that his wife deserted him without cause. To discharge that burden, he relies on the fact that he asked her to join him and she refused. That is a fact from which the court may infer that she deserted him without cause, but it is not bound to do so. Once he proves the fact of refusal, she may seek to rebut the inference of desertion by proving that she had just cause for her refusal; and, indeed, it is usually wise for her to do so, but there is no legal burden on her to do so. Even if she does not affirmatively prove just cause, the court has still, at the end of the case, to ask itself: Is the legal burden discharged? Has the husband proved that she deserted him without cause?” I think the learned judge’s essential findings of fact in the instant case may be summarised as follows: Page 193 of [1961] 1 EA 185 (CAN) (1) That the appellant did offer the respondent a home at Gilgil which was or could have been made available in January, 1956, asked the respondent to join him there, and the respondent refused to do so. (2) That the respondent did not tell the truth about this offer. (3) That he (the learned judge) could find nothing in the evidence to suggest that the respondent was not ready and willing to have the appellant at the Nanyuki house during his holidays. (4) That there is no evidence of any further attempt by the appellant, after the original invitation, to persuade the respondent to join him at Gilgil. (5) That it is to be inferred from the evidence that after the respondent's first refusal the appellant acquiesced in the respondent remaining at Nanyuki. (6) That from the failure to follow up the matter it is to be inferred that the request was not in the first place put forward with any strong degree of insistence. (7) That the request was not in itself unreasonable.

(8) That in the absence of any insistence on the part of the appellant or any renewal of the request, it may well have appeared to the respondent that the request was not put forward very seriously. (9) That in the circumstances the refusal by the respondent was not wholly unreasonable. (10) And that therefore the refusal did not indicate any intention on the part of the respondent to desert the appellant. It is to be noted that, apart from findings Nos. (1) and (2), which are not challenged, none of the findings set out above are based on the credibility of the witnesses, but are, in most cases, inferences drawn from specific facts referred to by the learned judge. The only finding depending on the veracity of the parties is adverse to the respondent. It is legitimate for this court to examine the grounds for the inferences drawn by the learned judge (Watt v. Thomas (5)). Counsel for the appellant has, in effect, challenged the findings numbered (3), (4), (5), (6), (8), (9) and (10). As to finding No. (3), that is, that there is no evidence to suggest that the respondent was not ready and willing to have the appellant at the Nanyuki house during the school holidays, counsel for the appellant submitted that this amounted to a serious misdirection in that the learned judge ignored the appellant's own evidence, and ignored or did not appreciate the force of the correspondence which was exhibited in the case. With respect, I think there is force in counsel's submission. The appellant in the course of his evidence said: “I remained at Pembroke House School for three to four years. My home was still at Nanyuki, and I used to return there in the holidays. My relations with my wife gradually deteriorated. I did not seem to be welcome at home. On returning I used to find my room full of boxes. . . . Conversation deteriorated. My wife did not refuse to accompany me out. She rarely cooked for me . . . Relations went from bad to worse . . . I returned to Nanyuki in the holidays at Easter, 1956. I gave my wife the letter which appears as No. 3 in exhibit 1. She asked me to give it to her as she might wish to go and live elsewhere. Our relations at that time were very bad. We hardly ever spoke and used to go walks on our own. She rarely appeared at meals . . . I tried to discuss things without success.” Page 194 of [1961] 1 EA 185 (CAN) As to the correspondence, the learned judge himself in another part of his judgment said: “A letter written by [the respondent] in August, 1954, is certainly not calculated to make the petitioner feel that he is welcome in his own home or regarded by his wife with any strong degree of affection, and subsequent letters in the agreed bundle do nothing to alter this impression.” This, as it seems to me, is undoubtedly evidence from which it could be inferred that the respondent was not “ready and willing” to have the appellant at Nanyuki in the sense of not making him welcome in the house there. The respondent had stated in her evidence: “In my holidays I and M. got on all right. I was generally busy . . . There was no trouble about providing meals except that I was very busy.” It may be that the learned judge was not prepared to accept the appellant’s evidence on this point, but he does not put the matter on this basis. I think that the passage complained of does amount to a misdirection, and that it is open to this court to reach its own conclusion on the evidence. In view of the tone of the respondent’s letters I have little hesitation in accepting the appellant’s evidence to the effect that he was not made welcome by the respondent at Nanyuki. Nevertheless

it has not been suggested that the respondent’s conduct at Nanyuki was such as to amount to constructive desertion. So far as findings Nos. (4), (5), (6), (8) and (9) are concerned, counsel for the appellant argued that the learned judge was wrong in law in taking into account the question of the lack of subsequent attempts by the appellant to get the respondent to join him at Gilgil; that the refusal to join the appellant in Gilgil in January, 1956, either constituted an act of desertion or it did not, and that the subsequent acts of the parties could not affect the nature of that act; that if the refusal did constitute an act of desertion the appellant was under no obligation to continue to press the respondent to join him and there was a presumption that the respondent continued in a state of desertion; and that the fact that the appellant did not subsequently press the respondent to join him could have no bearing on whether or not the request at the time it was put forward appeared a serious one and so could not be a basis for finding that the respondent’s refusal was “not wholly unreasonable”. I have already dealt with some of these submissions in relation to grounds 4 and 5 of the memorandum of appeal. To cite again the passage from Latey on Divorce (14th Edn.) p. 132 which is set out above: “Passive acquiescence by one spouse in a state of abandonment forced on him or her by the other spouse does not terminate desertion . . . The intention to desert is presumed to continue unless the deserter proves genuine repentance and reasonable attempts to get the other spouse back.” I would further agree with counsel for the appellant that the absence of subsequent attempts to persuade the respondent to come to Gilgil of necessity could not affect the impression which the request made had upon the respondent at the time it was made. Nevertheless, I think the learned judge was entitled to consider the subsequent conduct of the appellant as evidence which might give some indication of the degree of insistence with which the appellant’s request had been made. But it would also be material to this aspect of the matter to take into account the respondent’s previous attitude towards the appellant, the fact that the cottage at Gilgil was allocated to someone else when the respondent refused to come there, and the appellant’s evidence that he did go to the Nanyuki house at Easter, 1956, and tried unsuccessfully to discuss matters with the respondent. These are factors which the learned judge Page 195 of [1961] 1 EA 185 (CAN) does not appear to have taken into account. It appears to me that these factors are sufficient to account for the absence of further requests being pressed by the appellant, and negative any inference which might be drawn from the absence of such requests. It follows from what I have said that, with the greatest respect, I think that the learned judge’s conclusion numbered (10) above is not founded upon sound grounds. This, however, is not the end of the matter. Although this court may be satisfied that the grounds on which the learned judge relied were erroneous, yet before the court can reverse the learned judge’s decision it must be satisfied that on the evidence as a whole the appellant discharged the legal burden of proof that was upon him and established beyond reasonable doubt that the respondent did desert him in January, 1956. It was common ground, and was, indeed, accepted by the learned judge, that the present state of the law as to where the matrimonial home should be is as stated by Denning, L.J., in Dunn v. Dunn (1). In that case Denning, L.J., said: “I want to say a word also on the proposition that a husband has the right to say where the home should be, for, indeed, it is the same fallacy in another form. If that were a proposition of law it would put a legal burden on the wife to justify her refusal, but it is not a proposition of law and I

am sure Henn Collins, J., in Mansey v. Mansey [1940] 2 All E.R. 424, did not intend it as such. It is simply a proposition of ordinary good sense arising from the fact that the husband is usually the wage-earner and has to live near his work. It is not a proposition which applies in all cases. The decision where the home should be is a decision which affects both the parties and their children. It is their duty to decide it by agreement, by give and take, and not by the imposition of the will of one over the other. Each is entitled to an equal voice in the ordering of the affairs which are their common concern. Neither has a casting vote, though, to be sure, they should try so to arrange their affairs that they spend their time together as a family and not apart. If such an arrangement is frustrated by the unreasonableness of one or the other, and this leads to a separation between them, then the party who has produced the separation by reason of his or her unreasonable behaviour is guilty of desertion. The situations which may arise are so various that I think it unwise to attempt any more precise test than that of unreasonableness.” Although commenting that the circumstances of two cases are never the same, the learned judge appeared to find a parallel between the facts in the instant case and those in Dunn v. Dunn (1). I think, however, that there are important distinctions between the facts of the two cases, and I will refer to these later. The learned judge also referred to Walter v. Walter (2), and, I think, placed some reliance on the decision in that case, which is stated in the headnote (set out by the learned judge in his judgment) as follows: “Held, applying Dunn v. Dunn that in the circumstances neither party was in desertion, for the law recognised–and nowhere more than in relation to questions of desertion–that marriage was an institution which depended on give and take on the part of both spouses, and in the present case both parties had been obstinate, each refusing to see the other’s point of view, and each being prepared to see the marriage founder rather than give way.” Unfortunately the learned judge’s attention does not appear to have been drawn to Hosegood v. Hosegood (6) (1950), 66 T.L.R. (R.) 735, where the decision in Walter v. Walter (2), was disapproved. In Hosegood v. Hosegood (6), Denning, L.J., said at p. 739: Page 196 of [1961] 1 EA 185 (CAN) “I am not going to assert that the husband had a legal right to require his wife to come to Salisbury: he had nothing of the kind. These matters, as I said in Dunn v. Dunn (64 The Times L.R. 570, at p. 572: (1949) P. 98, at p. 103) are to be settled ‘by agreement, by give and take, and not by the imposition of the will of the one over that of the other’. I repeat what I said there, that ‘neither has a casting vote, though to be sure they should try so to arrange their affairs that they spend their time together as a family and not apart’. If such an arrangement, however, is frustrated by the unreasonableness of one or the other, as if one party unreasonably refuses to join in a home reasonably proposed by the other, he or she may well be presumed to intend to bring the married life to an end and thus be found guilty of desertion. Only the other day we had a case where a husband unreasonably refused to set up a home for his wife away from his own mother when he could and should have done so. If he persisted in his refusal, it would be obvious that the married life would come to an end, and he might then be presumed to intend it. “The only qualification which I would make to what I said in Dunn v. Dunn (supra) is that there are cases where each party is reasonable from his own point of view but is unreasonable in not giving proper weight to the other’s point of view. After all is said and done, the question–where the home should be–must be settled one way or the other: one or other must give way. If each sticks obstinately to his own point of view, and hence the marriage comes to an end, then, however reasonable the point of view of each originally, the point may well be reached when

each is unreasonable in not giving way to the other and each may be guilty of desertion. Each must know full well that, if he or she does not give way, the married life will be brought to an end; and if each unreasonably persists each may well be presumed to intend to bring it to an end. I see no reason why the court should be forced to choose between them and say that one only is a deserter: both may be. In such cases, where more than three years have elapsed, the proper relief may be a decree of divorce without drawing any distinction between them. I say this because I am afraid that the last seven lines of my judgment in Dunn v. Dunn (supra) misled Mr. Justice Willmer in Walter v. Walter (1949) 65 The Times L.R. 680 into thinking that where each is obstinate neither is guilty of desertion; whereas the truth is that both may be.” I think this makes it clear that what may be reasonable from the point of view of one party may not be reasonable from the point of view of the marriage as a whole, an aspect which the learned judge did not consider when he held that the respondent’s refusal was not “wholly unreasonable”. As the learned judge rightly held, to constitute desertion there must not only be de facto separation, but an animus deserendi, and the question is whether the evidence establishes this. It appears to me that the appellant’s request for the respondent to join him at Gilgil is to be taken more seriously than the learned judge seemed to think. The learned judge appears to regard it as “a casual suggestion that it would be a good idea if the respondent came to join him”, an isolated request “not in the first place put forward with any strong degree of insistence”. The learned judge relies for this conclusion upon the respondent’s failure to follow up the matter, but I think the factors I have already indicated are sufficient to explain this failure. Apart from this, the evidence indicates, not merely a casual request, but some considerable discussions on the subject. Mr. Hazard’s evidence, which I can see no reason to reject on this point, is to the effect that he had discussions with the appellant and the respondent as to Page 197 of [1961] 1 EA 185 (CAN) whether she would come to occupy the vacant cottage and “it was made clear to her that it was available if she wanted it”. That there were discussions on this subject receives confirmation from the passage in the respondent’s letter of December 3, 1955, where she says: “Mrs. Hazard had every right to talk matters over with me about your return to P.H. . . . and the chance of me living in the cottage”. Further, it appears from Mr. Hazard’s evidence that there were at the same time discussions about the possibility of the respondent taking on a teaching job at Pembroke House. It appears to me upon this evidence that the appellant’s request to the respondent was far from a casual request, but was one which was discussed, not only between the parties, but with Mr. and Mrs. Hazard and included discussions on aspects of her coming to Gilgil such as the possibility of obtaining employment there. I do not think that the request is to be treated as a mere casual suggestion. I have remarked that the learned judge appeared to find some parallel between the facts in Dunn v. Dunn (1), and this case. After briefly stating the facts in Dunn v. Dunn (1), he sets out the following passage from the judgment of Denning, L.J.: “The decisive matter, to my mind, is that throughout the matrimonial home was at Morpeth and the wife was ready and willing to have him there on his leave whenever he could get there, and that is where the family were.” Later, the learned judge says: “Though the petitioner had obtained employment at Gilgil on a contract for at least four years, to the respondent there was a permanency about the home at Nanyuki which may well have appeared to be lacking in the proposed new home at Gilgil. That in itself is not a ground for

refusing any change, but it is an element to be considered, as it was in Dunn v. Dunn, and while complaints were made by the petitioner that when from time to time he returned the respondent made him unwelcome in various ways, I find nothing in the evidence to suggest that she was not ready and willing to have the petitioner there during his holidays whenever he could get them, as was found to be the case with the respondent in Dunn v. Dunn (supra).” As it seems to me, however, the circumstances in this case are altogether different. I have already discussed and disagreed with the learned judge’s remark that there was nothing in the evidence to suggest that the respondent was not ready and willing to have the appellant at the Nanyuki home during the holidays. Apart from that, the relevant facts in Dunn v Dunn (1), are stated by denning, L.J., as follows: “She [i.e. the wife] was living with the two children, aged fourteen and seven, in the matrimonial home at Morpeth. She had never been away from Morpeth except for a few days in 1934. The husband wanted to uproot them for a stay in wartime at Immingham or Barrow. The stay was to be of uncertain duration and it might be for a few weeks or a few months. It was to be in rooms. The wife was deaf and had difficulty in making herself understood by strangers. . . . Her refusal to go for a short stay elsewhere in the circumstances which I have mentioned, it seems to me, was not unreasonable.” In the instant case it is true the matrimonial home had been in Nanyuki for a number of years, but there the parallel between the two cases ceases. In the instant case the children of the marriage were of age and employed away from home. There was no question of a mere temporary stay in rooms, but a proposal Page 198 of [1961] 1 EA 185 (CAN) that the respondent join the appellant in a suitable house at the scene of his work for a substantial period, four years. The house in Nanyuki could have been let. There can be no doubt that the request was, as the learned judge held, reasonable. It may be that the respondent was reluctant to leave the house in Nanyuki, but, from the point of view of the marriage, I can see very little to justify the refusal. I would hold that the refusal was unreasonable, and not merely “not wholly unreasonable” as the learned judge held. Even so, however, and though the respondent’s unreasonable refusal to join the appellant is, as Denning, L.J., said in Dunn v. Dunn (1) a factor of great weight, it is not, I think, in the circumstances of this case conclusive. There was still the house in Nanyuki to which the appellant could go in the holidays, and the refusal of the respondent to go to Gilgil need not have been accompanied by the necessary animus deserendi on her part. To establish the animus deserendi the appellant relies on the tone of the respondent’s letters. I have already discussed these and concluded that they support the appellant’s evidence that he was not welcome at the house in Nanyuki. But this does not necessarily mean that the respondent had already, prior to January, 1956, determined to bring the matrimonial consortium to an end. As I have said, it has not been suggested that her conduct amounted to constructive desertion. Relations between the parties at that stage may have been strained, but I find it difficult to say on the evidence that there had been a break between them. And, if there had not been a break, it is difficult to infer an appreciation on the part of the respondent that the appellant would not continue as before to treat the Nanyuki house as the matrimonial home. It is to be noted that in fact the appellant did return to the Nanyuki house in April, 1956. The mere intention to continue the existing state of affairs, unpleasant as they may have been, hardly suffices to establish an animus deserendi on the part of the respondent. I think that before an animus deserendi can be inferred there must be evidence to indicate that the respondent realised that by her refusal to go to Gilgil she would be putting an

end to the matrimonial consortium. The learned judge, correctly in my view, appreciated this, though, as I have indicated above, I think he underestimated the force of the invitation to the respondent to join the appellant at Gilgil, partly, at least, on grounds which I do not think should legitimately be considered. Nevertheless, allowing full weight to that invitation, I still feel that the evidence falls short of establishing an animus deserendi on the part of the respondent when she refused the invitation. I have reached this conclusion with considerable hesitation as I think the tone of the correspondence does go some way towards showing that the respondent did not intend to resume normal matrimonial relations and that she was insincere in her requests to the appellant to give up his work and return to Nanyuki permanently. However, the burden of proof lies on the appellant, and it is a heavier burden than that which lies on a party to an ordinary civil action. I do not think the evidence he has led suffices to discharge this burden. It follows that I think the appeal should be dismissed with costs. Gould JA: I have had the advantage of reading the judgment of the learned Vice-President. Like him, I find the case one of doubt and difficulty and for the very reason that I am left in doubt I must find that the appellant has not discharged the onus of proving either the factum of separation in the true sense or the animus deserendi. The case turns entirely upon whether the refusal of the respondent in the latter part of 1955 to take up residence at Gilgil at the beginning of 1956, was an act of desertion accompanied by the necessary animus and (if so) whether the respondent’s state of being in desertion continued. As to the second of those conditions, I would have no hesitation in saying that if she was in desertion, there is nothing in the oral evidence or correspondence which would lead me to the opinion that the respondent had made any genuine offer to return. As to the letter of December 29, 1957, I agree with the opinion Page 199 of [1961] 1 EA 185 (CAN) of the learned trial judge when he said “I should have been slow to accept that letter as a genuine offer to return”. It is the first question, i.e. whether the respondent was ever in the position of having deserted her spouse, that I have found difficult. It is unnecessary again to detail the circumstances, which have already been set out in full in the judgment of the learned Vice-President, but they leave me in doubt whether the respondent’s refusal to go to Gilgil was unreasonable. Certainly it would appear that such a move might have relieved the anxieties attendant upon her living alone at Nanyuki in the conditions of the emergency. On the other hand, the Nanyuki house had been established with the purpose of making it the matrimonial home, and the respondent was contributing to the joint income by running a nursery school there. I do not think that this one specific refusal was sufficient to show an animus deserendi in the circumstances. Nor am I satisfied that the respondent’s subsequent conduct towards the petitioner, when he visited her for the vacation in 1956, supplied evidence sufficient to show that that refusal to go to Gilgil was combined with the intention of bringing cohabitation permanently to an end. There is conflict between the evidence of the parties as to what took place, and no finding of fact by the learned trial judge on the question. The evidence indicates at least that the appellant was not made very welcome, but it has never been suggested (nor could it be on the evidence as recorded), that the respondent’s treatment of the appellant at that time would have sustained a plea of constructive desertion. Something less might perhaps be sufficient, coupled with the refusal to go to Gilgil, to supply evidence of an animus deserendi but the evidence recorded does not satisfy me that such an animus was present. Nor does anything in the correspondence, unrestrained and abusive though it was on the part of the respondent, in my opinion, adequately supply proof of an intention to desert, at the time of the Gilgil affair.

There is another aspect of the matter to which I would refer. At the end of 1955, the parties had already, in one sense, been living apart for a number of years. The appellant had been returning to the matrimonial home for his holidays, and the parties were not “separated” in the matrimonial sense of that word. Nevertheless they had by mutual consent (perhaps a reluctant one on the part of the respondent) adopted a mode of living which entailed their residing for the greater part of the time in different places in the territory. In my opinion the evidence adduced by the appellant was insufficient to prove that he did, because of the respondent’s refusal to join him in Gilgil, withdraw his consent from the continuance of the mode of life which had been consensually adopted. It is clear law that if the party alleged to be in desertion left the other with that party’s consent, that is no desertion. The question of consent in this connection is not the same as that of acquiescence in a definite state of desertion; such acquiescence does not negative the desertion. But no desertion would arise at all, where two parties had agreed upon a certain mode of life involving partial de facto separation, and one of them, being asked to take up permanent residence with the other, stated that he or she preferred to continue the existing arrangement, if the other party did not withdraw his consent to that arrangement. The appellant and the respondent had such an arrangement in the present case, and I do not find anything in the evidence which satisfies me that when the respondent refused to join the appellant at Gilgil he withdrew his consent to its continuance. In other words I do not find it proved that the factum of true separation supervened at this stage. The mere request was not in the circumstances enough in my judgment; had there been acceptable evidence that it was made in such terms as to indicate that the petitioner’s consent to the existing arrangement would be withdrawn if the request was refused, the position would have been different. There was no such evidence. The appellant might have manifested the withdrawal of his consent Page 200 of [1961] 1 EA 185 (CAN) in other ways, but he did not do so–he went as usual to Nanyuki in the first vacation in 1956. Much later, in the correspondence, there are indications of a change of attitude on his part, but that does not assist him in proving the factum of separation in late 1955 or early 1956. For these reasons and for the reasons given in the judgment of the learned Vice-President, I find that the appellant failed to discharge the onus upon him of proving desertion by the respondent and would also dismiss the appeal with costs. Connell J: I also agree. I have come to the conclusion that the primary act relied on as “desertion” in the petition, namely the refusal by the respondent to live with the petitioner at Gilgil in January, 1956, has not been proved beyond reasonable doubt. Appeal dismissed. For the appellant: CS Rawlins For the respondent: GH Mann For the appellant: Advocates: Geoffrey White & Co, Nakuru For the respondent: Cresswell, Mann & Dod, Nakuru DOMICILE Santhumayor v Santhumayor Ferris and another

[1959] 1 EA 204 (HCU) Division: HM High Court for Uganda at Kampala Date of judgment: 4 February 1959 Case Number: 5/1958 Before: Sir Audley McKisack CJ Sourced by: LawAfrica [1] Divorce – Domicil – Abandonment of domicil of origin – Acquiring fresh domicil – Burden of proof – Evidence – Declaration of intention to reside permanently in Uganda. Editor’s Summary The petitioner, a citizen of India, came to Uganda in 1954, on a temporary employment pass. He was employed as a clerk with a bank in Kampala, his contract being for six years expiring in 1962. In 1957 the petitioner married the respondent who had lived all her life in India until she came to Uganda. In 1958 he petitioned for a divorce whereupon the respondent applied to the court to dismiss the petition on the ground that the petitioner was not domiciled in Uganda. The court heard evidence on this issue from which it was established that the petitioner had all his family ties in India and had taken no positive step which would point to an intention to remain in Uganda indefinitely, but he had declared his intention to remain in Uganda permanently to two individuals who gave evidence to that effect. Held – the burden of proving a change from the domicil of origin to a domicil of choice is not light and taking all the factors into consideration the petitioner had failed to prove that he had acquired a Uganda domicil with that “perfect clearness” which English cases prescribe as necessary before the court can accept that the domicil of origin has been lost. Petition dismissed. Cases referred to in judgment (1) Zanelli v. Zanelli (1948), 64 T.L.R. 556. (2) Boldrini v. Boldrini, [1931] All E.R. Rep. 708; [1932] P. 9. (3) Cruh v. Cruh, [1945] 2 All E.R. 545. (4) Will v. Will, Uganda High Court Divorce Cause No. 3 of 1954 (unreported). Page 205 of [1959] 1 EA 204 (HCU) Judgment Sir Audley McKisack CJ: This is an application to dismiss a petition for divorce on the ground that the petitioner is not domiciled in Uganda. The application came before Sheridan, J., in chambers on September 30, 1958, and was adjourned by him into court for evidence to be taken on this issue. Evidence was heard on January 16, 1959, and was given by the petitioner and two witnesses called by him. There was no evidence called on behalf of the respondent, but Mr. Hunt argues that the petitioner has failed to discharge the onus of proving that he has changed his domicil of origin and acquired a new domicil in Uganda. The facts are as follows. The petitioner was born in India in 1925, and is a national of the Republic of India. He came to Uganda in 1954, having been allowed to enter the country by virtue of a temporary employment pass which had been issued to him by the Uganda immigration authorities. The employment was as a clerk with a branch of a bank in Kampala, and he has a contract of employment with the bank which is for the duration of six years, expiring in 1962. For the first two years of his residence in Uganda his employment with the

bank was on a more temporary basis. His contract contains no provision for renewal, but he has hopes of obtaining another contract with the bank when the present one expires. His contract entitles him to four months’ vacation leave at the end of the six years. He also follows another occupation, outside the hours of his employment in the bank, that of doorkeeper at a cinema. The temporary employment pass which I have mentioned is his authority for remaining in this country, and entitles him to do so for so long as the pass remains valid. Under the Immigration (Control) Ordinance (Cap. 43), and the regulations made there under, a temporary employment pass may be issued in the first instance for a period not exceeding four years, and is thereafter renewable at the discretion of the immigration authorities for a further period, or further periods, but so that the total validity of the pass shall not exceed eight years (see reg. 19 (3) of the Immigration (Control) Regulations, Vol. VII, Laws of Uganda, p. 925, as subsequently amended). The position, therefore, is that, unless in the meantime he obtains some other authority for remaining in Uganda, his temporary employment pass cannot have any validity beyond 1962, and he cannot then lawfully remain in Uganda. The petitioner married, in 1957, a girl whose home was not in Uganda, and who came from India. The petitioner’s parents were born in India and have never left there. All his brothers and sisters are in India. In Kampala he shares the occupation of a house with an Indian family. In his evidence the petitioner has stated that he intends to reside permanently in Uganda, and he gives as his reasons for that intention his liking for the country and the fact that he finds economic and other conditions in Uganda preferable to those in his country of origin. Of the two witnesses whom he called, one was a friend who says the petitioner has often told him that he would like to settle in Uganda permanently. The other is the manager of the cinema where the petitioner works in the evenings, and he testifies that the petitioner has sometimes gone to him for advice and when so doing has stated that he wanted to settle in Uganda because he had better prospects here than in India. I do not find this an easy case to decide. The burden of proving a change from the domicil of origin to a domicil of choice is not a light one. The fact of the petitioner’s residence in Uganda is, of course, amply proved, but it is otherwise with the question of his intention. He does not appear to have taken any of the steps which the English cases point to as evidence of intention. He has not, for example, changed his nationality or bought land here. But it is to be remembered that he is still in his thirties, and his employment is not such that he is as yet likely to be in a position to buy a house or land in this country. Page 206 of [1959] 1 EA 204 (HCU) The points in support of the petitioner are, first, that he has stated in the witness box his intention of staying here indefinitely and not returning to India; but the cases show that such statements do not carry very great weight. Secondly, his witnesses have testified that his intention was declared to them or, at any rate, that his wishes as to his future were so declared. Thirdly, there is no proof of his having taken any step inconsistent with the intention to remain here. And fourthly, I accept that he finds his employment and other conditions in this country more congenial than those in his country of origin. But a man who would like to make a particular country his home does not, of course, necessarily intend to do so. And I think Mr. Hunt is right in saying that the petitioner has taken no positive step which would point to his having an intention to remain in Uganda indefinitely. There is also the fact that he still has all his family ties in India, and that the woman he married lived all her life in India until he brought her to Uganda. The declarations he made to the friend and the

employer who gave evidence are somewhat weakened in their effect by the petitioner’s own statement in cross-examination that he never discussed with any friends his intention to settle in Uganda. As to his employment, this is temporary and not permanent, though the petitioner has hopes of obtaining a further contract with the bank. The contract he has at present does not provide for his being employed always in Uganda, but permits of his being sent to branches of the bank elsewhere in East Africa, so that he may at any time cease to reside in Uganda. His status under the immigration law is also material. The English cases show that an alien whose residence in England is merely permissive–or even precarious–may, nevertheless, have a domicil of choice in England (see Zanelli v. Zanelli (1) (1948), 64 T.L.R. 556, Boldrini v. Boldrini (2), [1932] P. 9, and Cruh v. Cruh (3), [1945] 2 All E.R. 545). But the position is not quite the same in Uganda. As I have said, his temporary employment pass cannot be renewed after the expiration of eight years, and his departure from this country will then become obligatory unless he has meanwhile succeeded in obtaining a different status under the Immigration Ordinance. The petitioner admits that he has so far taken no step to that end, though it would have been open to him to have done so. Two other points relied on by Mr. Hunt do not lend much support to his case. The Succession Ordinance (Cap. 34) has provision whereby a person who has been resident in Uganda for at least a year “may acquire a domicil in Uganda by making and depositing in some office in Uganda . . . a declaration in writing under his hand of his desire to acquire such domicil” (s. 11). Mr. Hunt says that this is another step which the petitioner might have taken, but did not take. I cannot, however, attach importance to this fact, since it was held in Will v. Will (4), Uganda High Court Divorce Cause No. 3 of 1954 (unreported), that that provision was relevant only to matters of intestate or testamentary succession. Nor do I consider it counts against the petitioner that, when he gets leave from the bank, he intends to spend it in India. Taking all the factors into consideration, I come to the conclusion that the petitioner has failed to prove that he has a Uganda domicil with that “perfect clearness” which the English cases prescribe as necessary before the court can accept that the domicil of origin has been lost. Consequently, the petition must be dismissed with costs. Petition dismissed. For the petitioner: ES Mbazira ES Mbazira, Kampala For the respondent and co-respondent: RE Hunt PJ Wilkinson, Kampala ELECTIONS Mbowe v Eliufoo [1967] 1 EA 240 (HCT) Division: High Court of Tanzania at Arusha Date of judgment: 10 March 1966 Case Number: 12/1965 Before: Georges CJ and Bannerman J Sourced by: LawAfrica

[1] Elections – Validity – Onus on petitioner – Meaning of “affect the result” – Appointment of polling agents invalid – Non-providing of ballot papers – Allegations of threats – National Assembly (Elections) Act 1964, s. 99 (T.) – National Assembly (Elections) (Amendment) Act 1965, s. 6 (T.). [2] Statute – Construction – “Proof to the satisfaction of the Court” – Meaning of “affect the result” – National Assembly (Elections) Act 1964, s. 99 (T.). [3] Practice – Evidence – Onus of proof on the petitioner – National Assembly (Elections) Act 1964, s. 99 (T.). Editor’s Summary The unsuccessful candidate in the Kilimanjaro West Hai constituency in the National Assembly elections petitioned for an order that the elction was null and void. The grounds relied on included (i) that the polling agent was appointed by the working committee of the District Executive Committee and not by the District Executive Committee as provided by the National Assembly (Elections) (Amendment) Act 1965, s. 6; (ii) that voters who wished to vote for the petitioner were informed that the supply of ballot papers was exhausted; and (iii) that members of T.A.N.U. Youth League organized a campaign on behalf of the respondent and used threats to influence electors into voting on behalf of the respondent. Held – (i) the term “proved to the satisfaction of the Court” as used in National Assembly (Elections) Act No. 11 of 1964, s. 99, meant that where a reasonable doubt existed, then it was impossible to say that one was satisfied, and the standard of proof in this case must be such that one had no reasonable doubt that one or more of the grounds set out in s. 99 had been established; (ii) “affected the result” means not only the result in the sense that a certain candidate won and another candidate lost. The result may be said to be affected if, after making adjustments for the effect of proved irregularities the contest seems much closer than it appeared to be when first determined; (iii) the appointment of the polling agents was bad but the non-compliance with National Assembly (Elections) (Amendment) Act 1965, s. 6, was not substantial and did not affect the result of the election; (iv) consequent on the exhaustion of the supply of ballot papers, no voting could take place for three quarters of an hour but this was not a substantial non-compliance within the meaning of National Assembly (Elections) Act 1964 s. 99 (2) (b); (v) the allegations of threats to electors by members of the T.A.N.U. Youth League had not been established by the evidence; (vi) herefore, none of the grounds set out in National Assembly (Elections) Act 1964, s. 99 (2), had been proved. Petition dismissed. Cases referred to in judgment: (1) Bater v. Bater, [1950] 2 All E.R. 458. (2) Re Kensington North Parliamentary Election Petition, [1960] 2 All E.R. 150. Page 241 of [1967] 1 EA 240 (HCT) Judgment

Georges CJ, read the following judgment of the Court: This is a petition by Mr. Aikaeli Alphayo Mbowe, one of the unsuccessful contestants in the elections held in the constituency of Kilimanjaro West Hai on September 26, 1965. There were two candidates, the petitioner and the respondent. The number of voters in the list was 30,889; the respondent polled 20,213 and the petitioner 6,393; the majority was 13,820. As far as we are concerned here in Tanzania, the relevant section dealing with election petitions is National Assembly (Elections) Act, No. 11 of 1964, s. 99. The Act states four grounds and says that the “election of the candidate as a member shall be declared void on any of the following grounds which are proved the satisfaction of the court”. There has been much argument as to the meaning of the term “proved to the satisfaction of the court”. In my view, it is clear that the burden of proof must lie on the petitioner rather than on the respondent, because it is he who seeks to have this election declared void. And the standard of proof is one which involves proof “to the satisfaction of the court”. In my view, these words in fact mean the same as satisfying the court. There have been some authorities on this matter and in particular there is the case of Bater v. Bater (1). That case dealt not with election petitions, but with divorce, but the statutory provisions are similar, i.e. the court had to be satisfied that a matrimonial offence had been proved. In this case, in my view, that we have to be satisfied that one or more of the grounds set out in s. 99 (2) (a) has been established. There Denning, L.J., in his judgment took the view that one cannot be satisfied where one is in doubt. Where a reasonable doubt exists, then it is impossible to say that one is satisfied, and with that view I quite respectfully agree and say that the standard of proof in this case must be such that one has no reasonable doubt that one or more of the grounds set out in s. 99 have been established. There is also the question of another statutory phrase, “affected the result of the election”, which occurs in s. 99 (b). The section reads as follows: “Non-compliance with the provisions of this Act relating to elections, if it appears that the election was not conducted in accordance with the principles laid down in such provisions and that such non-compliance affected the result of the election.” In this case there is an English provision which is substantially the same and which was discussed in the case of Re Kensington North Parliamentary Election Petition (2) The English provision is s. 16 (3) of the Representation of the People Act, 1949, and reads as follows: “No parliamentary election shall be declared invalid by reason of any act or omission by the returning officer or any other person in breach of his official duty in connection with the election or otherwise of the parliamentary elections rules if it appears to the tribunal having cognizance of the question that the election was so conducted as to be substantially in accordance with the law as to elections, and that the act of omission did not affect its result.” There we have exactly the same phrase used, “affect the result”, in one case the act or omission, in this case non-compliance, and the election court, which was presided over by Streatfeild and Slade, JJ., took this point of view: “Even if the burden rested on the respondent, I have come to the conclusion that the evidence is all one way. Here, out of a total voting electorate of Page 242 of [1967] 1 EA 240 (HCT) 34,912 persons who recorded their votes, three, or possibly four, are shown by the evidence to have voted without having a mark placed against their names in the register and each of them voted only once. Even if one was to assume in favour of the petitioner that some proportion of the remainder of 111 persons, whom we have not seen, were in somewhat similar case, there does not seem to be a shred of evidence that there was any substantial non-compliance with the

provision requiring a mark to be placed against voters’ names in the register; and when the only evidence before the court is that of the only three, or possibly four, people who are affected in that they recorded their votes without having a mark placed against their names, each voted only once, one cannot possibly come to the conclusion that, although there was a breach of the statutory rules, the breach can have had any effect whatever on the result of the election. Even if all the 111 were similarly affected, it could not possibly have affected the result of this election; therefore, although there was a breach in regard to the matter set out in para. 3 (i) of the petition in the omission to place a mark against certain names in the register, I should be prepared to say that there was a substantial compliance with the law in this respect governing elections and that omission to place a mark against the names did not affect the result.” In my view in the phrase “affected the result”, the word “result” means not only the result in the sense that a certain candidate won and another candidate lost. The result may be said to be affected if after making adjustments for the effect of proved irregularities the contest seems much closer than it appeared to be when first determined. But when the winning majority is so large that even a substantial reduction still leaves the successful candidate a wide margin, then it cannot be said that the result of the election would be affected by any particular non-compliance of the rules. I turn now to the evidence in this particular case and the various grounds alleged in the petition. No evidence whatsoever has been led as regards ground (e), i.e. there is no evidence that the petitioner was not accorded equal and fair opportunity in the organisation and conduct of the election campaign by the members of the District Executive Committee of the party, as provided by the National Assembly (Elections) (Amendment) Act, 1965, s. 39 (1) (3). This ground does not, therefore, merit further consideration. I will next deal with para. (c), that the polling agents were appointed by the area secretary and not by the District Executive Committee as provided by the National Assembly (Elections) (Amendment) Act, 1965, s. 6. It was not established that the polling agents were appointed by the area secretary, but it was in fact established that the polling agents were nominated by the working committee of the District Executive Committee. This is a different body from the District Executive Committee as can be seen from a study of para. C of Schedule I of the Interim Constitution of Tanzania. This is the constitution of T.A.N.U. It is quite clear also that the District Working Committee had no power to appoint these agents. The power was vested in the District Executive Committee and they had no authority to delegate that power to another body. In the circumstances, the appointment of the polling agents was bad. In fact, the polling agents did attend at the booths but were later removed. There are two versions as to why they were removed. Mr. Siyovelwa told us that they were removed because Mr. Aikaeli complained and he thought that it was better in the circumstances to remove them. The returning officer told us that he had removed them because the list had not been sent to him in time and he thought the appointment was irregular. With this view I cannot agree. If the polling agents had in fact been appointed by the District Executive Committee, the mere failure to inform the returning officer in time of the appointments could not have invalidated them. In this case, of course, the appointments were bad because they were made Page 243 of [1967] 1 EA 240 (HCT) by the Working Committee. In the event, however, the agents were removed possibly at the request of the petitioner himself. There is no allegation of personation. The agents are placed at the polling station to help detect personation. There is nothing to suggest that there was any personation. I would hold, therefore, that there was a non-compliance with the Act, in my view

not substantial, and there is no evidence to show that such non-compliance affected the result of the election. I will next deal with ground (b), “The voters who wished to vote for the petitioner or the ‘Jembe sign’ which represented your petitioner’s sign, were informed that the ballot papers were exhausted.” Two witnesses gave evidence on this point. The first one was P.W.6; he was quite unsatisfactory as a witness, and in one particular his evidence deserves to be disregarded. He says that Mr. Aikaeli arrived at about 6 o’clock at his polling station bringing some documents, apparently ballot papers. Mr. Aikaeli should, therefore, have been aware of the situation at that particular polling station. This would indeed have been an important matter, but Aikaeli in his evidence made no mention whatsoever of any such incident. That, I think, is more than enough reason for not relying upon the evidence of Ebrahim Muro as far as the non-providing of ballot papers at this particular polling station. There is also the evidence of P.W.9, Omari Mohamed Ngora, who assisted the returning officer. He says that there was a complaint at Sanya Juu that there was a shortage of ballot papers, and that was rectified, he says, in three-quarters of an hour. I must say that I am quite unhappy at the way in which this particular incident was handled. There is no evidence that Mr. Ngora investigated the matter to find out why there should have been such a run on the ballot papers or why the station did not, in the first place, receive enough ballot papers to satisfy the number of people who were expected to vote there. In future it should be ensured that persons who go round on polling day to supervise stations should make notes and investigate immediately anything which appears to be irregular or in any way unusual. Even accepting Mr. Ngora’s evidence as it is, it would amount to no more than this, that for three-quarters of an hour voting could not take place because there were no ballot papers available, and this is not a substantial non-compliance as to fall within the spirit and meaning of s. 99 (2) (b). We now come to allegations (a) and (d), which I shall deal with together, because they are closely related and they are the most serious allegations in the petition. Each of them would constitute an illegal practice contrary to the National Assembly (Elections) (Amendment) Act 1965, s. 99. In particular as far as (a) is concerned, had it been proved to our satisfaction it would have gone so deeply into the root of the whole election that it would be difficult, however large the majority might have been, to say that it did not affect the result of the election. Several witnesses came to give evidence on this point. Their evidence deserves some reasonably close analysis. There is first of all George Naiman. He says he was a member of the T.A.N.U. Youth League and that Simbo Solomon spoke to him and five other people, whom he met coming from work on a particular day and told them that they should canvass voters to vote for Nyumba (House), his brother’s symbol. He threatened deportation to Sumbawanga if they did not comply. It should be noted that of these six people only two belonged to that constituency and were registered electors. The other four were not known to George Naiman and apparently did not come from the district. The other person who came from the constituency, Obiro, who came to give evidence for the respondent has denied that any such incident took place. Of the two witnesses, Obiro impressed us as being much more reliable. In any event, Naiman testified that he spoke to only Page 244 of [1967] 1 EA 240 (HCT) nine people. He was very busy about his affairs, going to work early in the morning and returning late. He did not seem to have taken his instructions very seriously. It should also be noted that one of the persons to whom he is alleged to have spoken was P.W.11, Charles Kiatta.

Charles Kiatta said that Naiman spoke to him, yet Naiman in his evidence never mentioned Kiatta as one of the persons to whom he spoke. This is a matter of some importance in a case of this sort as it is obviously desirable to cross-link witnesses in support of each other on any particular allegation. Kiatta was one of the least reliable witnesses in this case, as he had a clear motive for untruthfulness. He said that he hoped to take up appointment with the petitioner, Mr. Aikaeli, at the termination of this petition. Arrangements have been made for him to take up the job immediately. The discussions leading to the arrangements took up shortly before the case. We hold, therefore, that Naiman’s evidence does not carry with it that degree of certainty which it should carry to enable us to act upon it. We prefer to accept the evidence of Obiro who seems the more reliable witness. His unreliability as a witness is confirmed by his failure to mention Kiatta as a person to whom he spoke though clearly he knew Kiatta was a witness in this case. Next for consideration is P.W. 12, Eliaika Trofum, one of the more alert and intelligent witnesses who came to give evidence on behalf of the petitioner. His story is a strange one indeed, because he says that there was intimidation going on actually inside the polling station. This was much more than was alleged in the petition itself. It is a charge of such grave importance that it would in the normal course deserve in the pleadings a paragraph all by itself. Failure to set it out specifically in the petition raises much suspicion as to its truthfulness. Trofum’s evidence stands uncorroborated. We hesitate to think that such conduct would have been tolerated by presiding officer, polling assistant and policeman without complaint. None of them has been called. Then we have the evidence of P.W. 13, Salehe Mohamed. He is probably the most significant person, because he says he told some five to six hundred people on the election day that they should vote for Nyumba rather than for Jembe. He is a very difficult witness to accept because he appears completely unintelligent. He stated that he wished to vote for Jembe, not because it stood for any particular person, but because he liked the symbol Jembe anyhow. The fact that it stood for one candidate or the other did not matter. He would have voted for Jembe quite apart from what the symbols stood for. He admitted also that he knew that it was wrong to instruct the voters as he did, and yet he did it with such energy that in a single day he was able to canvass 500-600 people outside the polling booths. He could not remember the names of even one or two of the persons to whom he spoke though they must all have been persons from his district whom he knew. This is not the sort of evidence which has the ring of truth on which one can act with certainty. Finally, there was Maleko, the last witness for the petitioner. He was interesting in two ways. Although he had been canvassed, he still voted for Jembe, and he says for his pains he was taken by the scruff of his neck by the policeman and ejected from the polling booth. On this point his evidence is contradicted by that of Rabieli. Maleko’s evidence is also significant in that it shows that whatever intimidation took place, it cannot be assumed that it was generally successful. Reviewing this evidence, it is crystal clear that no executive officer, no committee member of the T.A.N.U. Youth League took any part whatsoever either in canvassing or in issuing instructions that people should be canvassed. Therefore, to say that T.A.N.U. Youth League organised a campaign on behalf of the respondent, is, I think, more than a matter of error in the use of words. It is a misstatement of fact. That particular section in the petition has not been established. The petitioner has not led any evidence to establish that T.A.N.U. Youth Page 245 of [1967] 1 EA 240 (HCT) Leaguers organised a campaign on behalf of the respondent. He has led evidence to show that about nine T.A.N.U. Youth Leaguers at four particular stations on the instructions of Simbo Solomon, who is known to be a brother of the respondent and who might well have had an

interest in furthering the respondent’s success in the election, spoke to electors asking them to vote for Nyumba on threat of deportation. This cannot and does not amount to an organized campaign on the part of T.A.N.U. Youth League on behalf of Mr. Eliufoo, and this particular allegation fails for want of any evidence, even if we accepted the evidence in support of it, which we do not. Finally, we come to Mr. Simbo Solomon, the man who is alleged to be the evil genius in this matter, the person who, it is alleged, has been responsible for all this trouble. The main argument against him is that by seeking to deny in his evidence the playing of any part whatsoever in the election, he clearly must be marked out as not speaking the truth. Of course, had he admitted taking part in the election, he would equally have been criticised for taking any part at all knowing that his brother was a candidate. Whatever the answer was, some criticism could be advanced. The evidence given by Mr. Siyovelwa largely explains the position. Mr. Siyovelwa says that Simbo Solomon, because he was the brother of Eliufoo, was specifically assigned to work in Vunjo area so that he would be kept away from the area of Kilimanjaro West Hai. This makes good sense; it is credible in every sense of the word. There again, the way in which ground (d) is phrased shows that I may call the tendency of the petitioner to exaggerate in his allegations. He speaks of Simbo Solomon undertaking door-to-door canvassing. There is not the slightest shred of evidence that Simbo Solomon undertook door-to-door canvassing. Indeed, the evidence which was led indicates that there was casual contact with people, not by appointment but by sheer chance. This shows one of two things, either that the complaints made to the petitioner directly after the elections were quite unfounded, or else that the persons who complained are now unwilling to come forward to substantiate their complaints. Either of these hypotheses throws a considerable doubt on the general bona fides of the petitioner’s charge. Indeed, I find that such evidence as has been led about Simbo Solomon indicates no more than a casual contact with some persons, whom he may or may not have known, and a request by him that they should help his brother. As regards the allegation that he backed the request with a threat of deportation, I tend to discount this. Deportation and arrest are two very different things indeed. Arrest is a comparatively simple thing, but detention and being hidden is a much more serious sort of threat. And if there had been a threat of deportation and arrest, it is my opinion that that would have found its way into the petition, because, as I have indicated, the tendency of the petitioner has not been to understate his case, but rather to overstate it, and when he understates it in a particular matter, it is of some significance in assessing the general truthfulness of his evidence on that particular point. For all these reasons, therefore, I find that allegations (a) and (d) have not been established by the evidence. In these circumstances, it is not necessary for me to define exactly what the term “affected the result of the election” would mean in this particular case, and I would certainly refrain from doing so, as this is a matter of some difficulty. We would prefer to leave the matter open in the event that in another petition the facts proved raise this issue more precisely for determination. I hold, therefore, I am not satisfied on the evidence that any of the grounds set out in s. 99 (2) have been proved. The petition stands dismissed, the petitioner to pay the respondent’s costs. Page 246 of [1967] 1 EA 240 (HCT) Bannerman J: I agree with the judgment read by my learned brother, the Chief Justice, both as to law and the facts, and I have nothing to add. I agree that taking the evidence as a whole the petitioner has not satisfied the court that any irregularity or non-compliance of law in the election

was such as to have affected the result of the election, and the petition must therefore be dismissed. Petition dismissed. For the petitioner: S. S. Rao with R. M. Patel, Arusha For the respondent: J. R. W. S. Mawalla, Arusha For the Republic: M. Bomani (Attorney-General, Tanzania) and F. B. Mahatane (State Attorney, Tanzania) FRAUD Ratilal Gordhanbhai Patel v Lalji Makanji [1957] 1 EA 314 (CAD) Division: Court of Appeal at Dar-Es-Salaam Date of judgment: 15 August 1957 Case Number: 70/1956 Before: Sir Newnham Worley P, Sir Ronald Sinclair V-P and Lowe J Sourced by: LawAfrica Appeal from: H.M. High Court of Tanganyika – Crawshaw, J. [1] Practice – Standard of proof – Allegations of fraud to be strictly proved – No direction by trial judge as to burden or standard of proof. [2] Practice – Appeal – Conflicting evidence – Demeanour of witnesses – Duty of judge to test demeanour of witness against whole evidence – Power of Appellate Court to draw own inferences. Editor’s Summary The appellant gave a guarantee on which he was sued by the respondent. Judgment was given against him ex parte. He then instituted proceedings in the High Court against the respondent for orders inter alia that the guarantee agreement be rescinded in respect of his liability as guarantor, that the ex parte decree against him be set aside and that a sum of Shs. 18,322/68 received by the respondent in attachment proceedings in that case be refunded to him. The appellant’s case at the trial was that he was induced to sign the agreement as guarantor by the fraud of the respondent in falsely representing to him that the guarantee would not be acted upon or enforced against him and that its only purpose was to bring moral pressure to bear upon the principal debtor. The appellant alleged that at the time the agreement between the debtor, the respondent and himself was drawn up and executed, the respondent said to him: “I will not ruin your children. If you sign, Dahyabhai (the debtor) will pay my money. I don’t want any money from you” or words to that effect. The appellant further alleged that the respondent had at all material times no intention of fulfilling this promise. The respondent denied these allegations in his defence. The trial judge, however, while accepting generally the evidence of the appellant and his witnesses and rejecting that of the respondent and his witness, found that the representations alleged were in fact made by the respondent but that they were “no more than a mere expression of intention, without however sacrificing his legal right, an intention on which the guarantor was not entitled to rely.” He accordingly dismissed the suit in toto on the grounds

that the allegations of inducement and fraud had not been substantiated. The appellant appealed against this decision and contended that the trial judge’s findings of fact Page 315 of [1957] 1 EA 314 (CAD) were wrong and that he (the judge) had also misdirected himself on the law generally. On the other hand, the respondent also argued that the judge’s findings of fact could not be supported having regard to the evidence and the probabilities of the case and that the appellant’s suit ought to have been dismissed for failure of adequate proof. Held – (i) the trial judge’s estimate of the credibility of the appellant’s witnesses was wrong; there were many other circumstances, apart from manner and demeanour, which showed the unreliability of the appellant and his witnesses. (ii) the trial judge had not anywhere in the judgment expressly directed himself on the burden of proof or on the standard of proof required. “There is no specific indication that the learned judge had this [referring to the standard of proof] in mind: there are some indications which suggest he had not.” (iii) the appellant’s suit should have been dismissed for failure of adequate proof. [Decision of Crawshaw, J., affirmed on different grounds.] Appeal dismissed. Cases referred to: (1) Jorden v. Money (1854), 23 L.J. Ch. 865. (2) Davies v. London and Provincial Insurance Co., Ltd. (1878), 8 Ch. D. 469. (3) Bold v. Hutchinson, 104 R.R. 201. (4) Yuill v. Yuill, [1945] 1 All E.R. 183. (5) The Glannibanta (1876), 1 P.D. 283. (6) Coghlan v. Cumberland, [1898] 1 Ch. 704. (7) D. R. Pandya v. R., [1957] E.A. 336 (C.A.). August 15. The following judgment was read by direction of the court. Judgment This was an appeal from a decree of the High Court of Tanganyika which dismissed with costs the appellant-plaintiff’s suit. At the conclusion of the argument we dismissed the appeal with costs, but stated that we upheld the decree for reasons other than those given by the learned trial judge in his judgment. We now state our reasons. In his plaint the appellant asked for orders: (a) that an agreement made between him, one D. V. Patel, and the respondent should be rescinded in respect of the appellant’s liability as guarantor thereunder; (b) that an ex parte decree passed in High Court Civil Case No. 11 of 1954 should be set aside as against him; (c) that the sum of Shs. 18,322/68 received by the respondent in attachment proceedings in that case be refunded by the respondent to the appellant; (d) for the reimbursement of certain small sums paid as court charges by the appellant; (e) general damages Shs. 20,000/-. The issues in this case arose in the following manner. The appellant in April, 1953, was doing business at Dodoma in partnership with D. V. Patel. The latter owed the respondent Shs. 50,000/and was further heavily indebted elsewhere. He had, however, a credit in the partnership of Shs. 83,000/-. We shall for convenience refer to him as the debtor. On April 13, 1953, the respondent went from Nairobi to Dodoma, accompanied by one V. B. Patel and one N. V. Patel (who died before the trial) to discuss with the debtor the matter of his debt. The appellant was brought into

the discussions and the agreement above referred to was drawn up and executed by the debtor, the appellant and the respondent. The operative terms of this agreement were: (a) the debtor acknowledged the debt of Shs. 50,000/-. (b) he undertook to pay it off by monthly instalments of Shs. 2,000/- beginning on July 1, 1953, and thereafter punctually on the first day of each month. (c) the appellant guaranteed to pay in the event of any default by the debtor. The appellant’s case, as pleaded, was that he was induced to sign the agreement as guarantor by the fraud of the respondent in falsely representing to him that the guarantee would not be acted upon or enforced against him and that its only purpose Page 316 of [1957] 1 EA 314 (CAD) was to bring moral pressure to bear upon the debtor. The plaint alleged that on this occasion the respondent said “I will not ruin your children. If you sign, Dahyabhai [the debtor] will pay my money. I don’t want any money from you” or words to that effect; further, it was alleged that the respondent had at all material times no intention of fulfilling this promise. These allegations were denied in the defence. The debtor failed to pay any instalment and in February, 1954, in High Court Civil Suit No. 11 of 1954 the respondent sued him and the appellant for Shs. 16,000/- being the amount of the instalments then due and unpaid. The debtor did not defend the suit but the appellant instructed Mr. Dastur who applied for and obtained leave to defend. Before any defence was filed the appellant withdrew his instructions and, when the case was called on August 24, 1954, Mr. Dastur was granted leave to withdraw. Judgment was entered against the debtor and the appellant ex parte. This is the judgment which the appellant sought to have set aside, on the ground, as pleaded, that he was induced to withdraw his instructions to defend by the false representation of the respondent that he would enforce the judgment against the debtor only. About January 15, 1955, the respondent executed this judgment by attaching the shop goods of the appellant (who was at that date in India) and the appellant’s manager paid sums totalling Shs. 18,459/68 to raise the attachment. These are the monies which were claimed in the plaint, the grounds for claiming a refund being that, before going to India in October, 1954, the appellant had obtained from the respondent a reiteration of his promise that he would not execute the decree against the appellant. The defence denied that any such representation was made on either of these two occasions. The appellant returned to Dodoma from India in March, 1955, but the plaint in this suit was not filed until November 5 of that year. In the meantime the respondent had in October, 1954, filed a second suit for instalments due and unpaid: No. 87 of 1954. No defence was entered and judgment ex parte was entered on June 5, 1956. A third suit, No. 46 of 1955, is stayed pending the termination of these proceedings. The appellant’s suit was heard in May and June, 1956, and a reserved judgment, dismissing the suit in toto, was delivered on August 23 of that year. The findings and conclusions in the judgment can be summarised as follows: The learned judge, accepting generally the evidence of the appellant and his witnesses and rejecting that of the respondent and his witness, found that the representations alleged were in fact made by the respondent but that they were: “no more than a mere expression of intention, without however sacrificing his legal right, an intention on which the guarantor was not entitled to rely.”

The judge accordingly found that the allegations of inducement and fraud had not been substantiated. We feel bound to say, however, that the findings are not free from obscurity and inconsistency: for instance, the learned judge also states: “there was never any question of the creditor accepting the instalments unless they were guaranteed and the guarantor must have known this at the time.” Later, he says: “To my mind the creditor could not possibly have meant that he would attach absolutely no legal value to the guarantee, and what he said did not, I think, certainly on what the guarantor testifies that he said go as far as that”: and also: “As I have said, he (the guarantor) made the mistake as I see it of trusting the creditor when he said he would not proceed against him.” In this court, Mr. Dodd based his appeal on the trial judge’s findings of fact and addressed to us a long and careful argument on the law contending that the court below had misdirected itself on the law generally and on the effect of the cases cited Page 317 of [1957] 1 EA 314 (CAD) in the judgment: Jorden v. Money (1) (1854), 23 L.J. Ch. 865; Davies v. London and Provincial Insurance Co., Ltd. (2) (1878), 8 Ch. D. 469; and Bold v. Hutchinson (3), 104 R.R. 201. On the other side, Mr. Nazareth dealt only with one or two minor points of law and devoted his long and careful argument to demonstrating that the learned trial judge’s findings of fact could not be supported having regard to the evidence and the probabilities of the case, and that the plaintiffappellant’s suit should have been dismissed for failure of adequate proof. As we were of opinion that this contention succeeded it is unnecessary to consider Mr. Dodd’s submissions on the law. The function and duty of an appellate court which is asked to review the findings of fact of a trial court are clear. They were fully and authoritatively stated in the oft-cited judgment of Lord Greene, M.R., in Yuill v. Yuill (4), [1945] 1 All E.R. 183 at p. 188, p. 190. They were also clearly set out in two earlier decisions of the Court of Appeal: The Glannibanta (5) (1876), 1 P.D. 283 at p. 287, and Coghlan v. Cumberland (6), [1898] 1 Ch. 704: the relevant passages from these two cases are cited and applied in D. R. Pandya v. R. (7), [1957] E.A. 336 (C.A.), an appeal heard at this same sittings of the court and so far unreported. It is with these principles in mind that we approach our review of the learned trial judge’s findings of fact. Oral evidence was given by the appellant and he called two witnesses. One was Mr. J. N. Pandya, an advocate of the High Court who acted for the debtor throughout and who claimed to have been present when the first misrepresentations were made on April 13, 1953, and, also, when the respondent reiterated his assurances in September, 1954, before the appellant went to India. The other witness was one Pitamber, who claimed to have been present on the latter occasion. The appellant alone testified to the alleged misrepresentation in April, 1954, whereby he was induced to withdraw his defence to suit No. 11 of 1954. He said that this was made over the telephone. The respondent gave evidence and called V. B. Patel who had accompanied him to Dodoma on April 13, 1953. There were also twenty-three documentary exhibits, most of which were letters passing between the advocates of the parties and of the debtor. There is one preliminary observation which we must make on the learned judge’s treatment of this evidence: he does not anywhere in the judgment expressly direct himself on the burden of proof or on the standard of proof required. Allegations of fraud must be strictly proved: although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required. There is no specific indication

that the learned judge had this in mind: there are some indications which suggest he had not. For instance, he says “I regarded Mr. Pandya as an entirely honest witness (which means that in part anyway I was unable to believe the creditor and his witness) and although he may after this long interval of time have forgotten or become confused as to some details of the events, I am satisfied that in substance his evidence is correct.” Again, on the all-important question as to the actual words and extent of the alleged original false representation, the appellant and Mr. Pandya differed substantially, and on this the learned judge says “I prefer the guarantor’s account of what the creditor said to that of Mr. Pandya as, the guarantor being the more concerned at the time and subsequently, the actual words would be likely to be the more vividly impressed on his mind.” The judge’s acceptance of the evidence for the plaintiff appears to be based mainly on impression and demeanour. We have quoted his appreciation of Mr. Pandya’s credibility. Of the appellant he says “The guarantor’s trust in the creditor may seem almost incredible, but from the way he gave his evidence as well as from the consistency of his behaviour I do believe him.” He does not refer to Pitamber: nor, indeed, does he indicate why he disbelieved the Page 318 of [1957] 1 EA 314 (CAD) respondent and his witness who were certainly telling the more consistent and credible story. When the whole of the evidence is considered it is an inevitable conclusion that the learned judge unfortunately failed to test the accuracy of his impressions by the documentary evidence, by the “glaring improbability” of the appellant’s case and by the contradictions in the evidence. We will take first the documentary evidence. This includes a number of letters written by Mr. Pandya to the respondent or to others and relating to the debtor’s affairs between September, 1953, and September, 1954. Only one of these is referred to in the judgment and even that is not in the appellant’s favour. It was Pandya who drew up the agreement on April 13, 1953, and it was finally on his assurance that the appellant signed as guarantor. The substance of his evidence on this point was as follows: “The defendant told the plaintiff that if he signed an agreement in which he would become a nominal guarantor he would not take any action against him. The words of the defendant were: ‘If you sign it I will not look after you as a guarantor: I will not file any action against you on this guarantee . . . I am not going to ruin your wife and children’.” Also, “When Ratilal (appellant) asked me if he should sign it I said ‘You have heard him give you promises. I do not think he will betray the trust he has put on his promises’.” It is, of itself, sufficiently remarkable that a practising advocate should admit that he persuaded the appellant to put his hand to a document ex facie creating an obligation on the appellant but intended, as between the appellant and the respondent, to have no legal effect. But Mr. Pandya’s letters show conclusively that he never put forward this interpretation of the agreement until he came into the witness box. In a letter dated September 12, 1953, to the respondent, he wrote: “I know you stand in a different position in that you have a written guarantee from Ratilal. You can have that weapon as a reserve in your armoury, but as I remember, you assured Ratilal that you would not embarrass him, so if you would also not precipitate action and fall in line with Van Eeghan, Native Creamery and some other big creditors all will be regularly paid.” On January 12, 1954, he wrote to the respondent’s advocate:

“I know Laljibhai has Ratilal to catch hold of but Ratilal in turn would jump upon Dayabhai. These are stark facts and I have now only to request you to do all you can to avoid the catastrophe.” On March 28, 1954, he wrote again, with reference to the appellant’s intention to defend suit No. 11 of 1954: “Even though Ratilal is the guarantor this money has ultimately to come from the principal debtor . . . Ratilal’s defence is never going to stand. . . .” Finally, on July 20, 1954, he again wrote to the respondent’s advocate: “I think I wrote to you about Ratilal’s view in the matter. He seems to be labouring under a wrong impression that he can escape liability under the guarantee in question. I explained to him everything and I understood him to say that he would see that Laljibhai is paid at least Shs. 1,000/- a month.” The only explanation which Mr. Pandya could offer for these letters was that he was trying to appease his client’s creditors and that if he had said that the guarantee was useless the respondent would have “pounced” on his client at once. Comment seems superfluous: if his explanation is accepted, he is shown to have written lying letters in the exercise of his professional duties. Whether it is accepted or rejected his credibility is destroyed. There were other inconsistencies and contradictions in his evidence to which we do not propose to refer. If his evidence is rejected, as we think it should have been, the main corroboration of the appellant’s case goes with it. Page 319 of [1957] 1 EA 314 (CAD) We turn now to the appellant’s own evidence, the outstanding feature of which is its glaring improbability. It was unfortunate that at the most crucial points his testimony was given in response to blatantly leading questions and that his advocate, Mr. Dastur, took over the interpretation. This was apparently done because the translation by the court interpreter was unsatisfactory at that stage: nevertheless the remainder of this witness’s evidence seems to have been satisfactorily interpreted. But whatever the reason for this unusual procedure, the appellant’s evidence as to what was said by the respondent on April 13 differed considerably from Mr. Pandya’s account, as the trial judge noted. The substance of the appellant’s evidence on this point as recorded in the judge’s notes is: “I signed Ex. A when Pandya said that if I signed he did not think I would have to pay as D. V. Patel would pay. The defendant said ‘I am not going to kill your children,’ by which I took him to mean he would not demand money from me.” According to the shorthand transcript he also said: “I did not believe him at first but when Mr. Pandya said that, after requesting (? being requested) four or five times, I should sign. If he (the respondent) was going to court, I (i.e. Pandya) was prepared to swear.” There were, of course, good reasons for the appellant signing the guarantee. Apart from any desire to assist the debtor, the appellant may well have thought that unless the respondent could be induced to hold his hand, the sudden withdrawal of Shs. 50,000/- or more from the partnership would be embarrassing. He is a business man of mature age and experience and it would be surprising enough if he were taken in by the assurance that his guarantee was required merely to bring moral pressure to bear on the debtor. The learned judge thought he might have been influenced by the great wealth of the respondent and by their being members of the same Indian community. Let us assume that these factors operated to over-persuade the appellant on April 13. How is it credible that they could have survived the respondent’s subsequent bad faith?

The reason the appellant gave for having withdrawn his instruction to defend suit No. 11 of 1954 stretches credulity to the utmost. He said that, after he had obtained leave to defend, the respondent put through a long-distance telephone call from Nairobi and said “As I promised you I am not going to sue you . . . If you defend the suit it will take a year before I get judgment against Mr. Patel and it will be delayed.” The appellant said he was satisfied with this reassurance and so instructed his advocate to withdraw. There was no corroboration whatever of this conversation but the learned trial judge thought that the instructions to withdraw were consistent with its having occurred. No doubt they could be: but there are other factors inconsistent with this which appear to have been overlooked. It is surprising, to say the least, that the appellant should so readily have accepted an oral reassurance from the respondent if the latter had already broken his word by suing the appellant. It is still more surprising that in his written instructions to his advocate, no mention is made of this assurance nor any reason given for the withdrawal. Nor could the appellant attempt to explain why his defending the suit should delay ex parte judgment against the debtor. The third occasion on which the appellant alleges he was deceived was, as we have said, in September, 1954, before he left for India. On September 6, the respondent’s advocate sent to the appellant and to the debtor identical letters referring to the agreement and guarantee, to the unsatisfied judgment in suit No. 11 of 1954 and demanding payment of all further outstanding instalments to date. It is common ground that about ten days later, the appellant and Pandya made a special journey by car to Nairobi to see the respondent on this matter. The witness Pitambar accompanied them but there was a conflict of evidence as to whether or not he was present at the ensuing discussion. Page 320 of [1957] 1 EA 314 (CAD) There was also a dispute as to what was said on this occasion. The respondent’s evidence was that only the appellant and Pandya came to him and asked him to reduce the instalments to Shs. 1,000/- a month, he refused and they went away. The appellant swore that he, Pandya and Pitambar were all present, that he asked the respondent what was the meaning of the advocate’s letter and respondent replied: “Don’t you worry about it. You go to India. I will fulfil my promise which I have given to you.” He understood by this that “even if they got judgment they wouldn’t proceed against me.” Nevertheless, he said, he was very dissatisfied but did not expect an attachment to be made. His version of what took place was supported by Pandya and Pitambar, although they both said that the appellant came away “very pleased.” Mr. Pandya’s oral evidence was, as before, inconsistent with the documentary evidence. On September 29 he wrote to the respondent’s advocate concerning this visit: “I had been to Nairobi for a few hours’ visit when, at Ratilal’s request I accompanied him. My purpose in going with him was to explain Dahyabhai’s position to Laljibhai and no more. We met Laljibhai, but according to me, the visit was abortive. “Ratilal had a few words with him in private and I don’t know what took place between them.” There is, of course, in the letter no reference to the assurances which he now claims to have heard the respondent give to the appellant. As to Pitambar the respondent denied he was present at all. It is clear that this witness went to Nairobi in the same car as the appellant and Pandya but primarily on his own business. Mr. Nazareth drew our attention to numerous contradictions and inconsistencies in the relevant evidence which, he said, showed clearly that Pitambar was not and could not have been present

at the respondent’s house. If that were established it would, of course, mean that the appellant and Pandya had deliberately given false evidence. The learned judge does not refer to Pitambar at all in his judgment and we have no means of knowing what view he took on this aspect of the case. We do not propose to go through the evidence on this point in detail: It is difficult for a court which has not seen and heard the witnesses to form a definite opinion on a point of this nature. But we can at least say that the evidence on record is such as to create in our minds very strong doubts as to whether Pitambar was in fact present during the discussion in the respondent’s house. That leaves the appellant’s own evidence. Although he had already been deceived by the respondent, he had taken no steps to have the judgment against him set aside. He allowed it to stand and merely asked that it should not be enforced. But his conduct when he heard of the respondent’s second act of perfidy, the attachment of the shop goods, is even more incredible. He made no protest but sent the following telegram to the respondent’s advocate: “Please withdraw attachment on auto spares collect by attachment and auction everything of Dahyabhai rest will pay myself have got thirty-two thousand with me reply.” In acknowledging this telegram on January 10, 1955, the respondent’s advocate wrote: “I regret that I am unable to accede to your request mentioned above. Your liability as guarantor is co-extensive with the principal debtor and my client, in view of his experience, is not in a mood to be influenced by any promise.” Even this categorical assertion of the respondent’s claim did not evoke any response from the appellant. The only comment the learned judge made on this evidence was: “I believe, however, the creditor and Mr. Pandya. Admittedly the guarantor did for a short time speak alone with the creditor, but I feel satisfied that had his purpose been to reduce instalments Mr. Pandya would be sure to have known, for their interests would have been mutual.” Page 321 of [1957] 1 EA 314 (CAD) Here again, the acceptance of this evidence appears to be based merely on impression and there is complete failure to test this by the documentary evidence, by appellant’s subsequent conduct or by the credibility or otherwise of Pitambar. In contrast to this evidence, full of contradictions and inconsistencies, the respondent and his witness gave testimony which was simple, credible, unshaken in cross-examination and entirely consistent with contemporary documents. As we have already said, the learned judge gave no reason for rejecting their evidence. We have said enough to show why, after a careful review of the evidence and not disregarding the judgment appealed from but carefully weighing and considering it, we came to the conclusion that the learned judge’s estimate of the credibility of the witnesses was wrong. There were, as we have attempted to show, many other circumstances, apart from manner and demeanour, which showed the unreliability of the appellant and his witnesses. In addition there was the factor of the degree of proof required to establish allegations of fraud to which no reference at all was made in the judgment. In dismissing the appeal, we awarded costs thereof to the respondent. We now direct that these be allowed for two advocates. Appeal dismissed. For the appellant: HG Dodd and PR Dastur PR Dastur, Dar-es-Salaam

For the respondent: JM Nazareth, QC and NS Patel INSURANCE Bali Sharma & Co, Nairobi For the respondent: SC Gautama and Zaher Ahmed Zaher Ahmed & Co, Nairobi Kanti & Co Ltd v British Traders’ Insurance Co Ltd [1965] 1 EA 108 (CAN) Division: Court of Appeal at Nairobi Date of judgment: 26 March 1965 Case Number: 21/1964 Before: Newbold Ag V-P, Spry and Law JJA Sourced by: LawAfrica Appeal from: Supreme Court of Kenya – Sir John Ainley, CJ [1] Insurance – All risks insurance clause – Claim for damage to insured articles – Onus on plaintiff to prove casualty – Manner in which such onus can be discharged – Damage from inherent vice an expected risk – Allegation that inadequate packing caused damage – Onus on insurance company to prove damage resulted from expected risk. Editor’s Summary The appellant company had insured seven cases of enamelware during transit from Liverpool to Nairobi with the respondent insurance company. The insurance cover was against “All risks of loss or damage subject to the Institute Cargo Clauses (All Risks)”. By cl. 1 of these clauses the insurance attached from the warehouse of the place of commencement of transit to the final warehouse at destination and by cl. 6 the insurance was against all risks Page 109 of [1965] 1 EA 108 (CAN) of loss or damage to the subject-matter insured but did not extend to loss, damage or expense proximately caused by delay or inherent vice or nature of the subject matter. It was not in dispute that the enamelware started the journey undamaged but on arrival in Nairobi though the cases appeared to be in good condition a very high percentage of the enamelware inside was found to be badly chipped. The appellant company thereupon filed an action in the resident magistrate’s court claiming Shs. 1505/50 as estimated damage. At the hearing an insurance surveyor stated in evidence that the main cause of the damage was motor transport as, due to the continual jolting, the packing had settled or become loose. He also stated that in his opinion the packing was probably sufficient for rail transport but insufficient for road transport. The trial magistrate found as a fact, that transport by road between Mombasa – Nairobi was not contrary to the terms of the insurance policy, that the packing was reasonably adequate, that the appellant company had proved that some fortuitous circumstance had occurred to the goods and that it was not for it to show how the goods were damaged, that the respondent company had failed to prove that the damage was caused by inherent vice in the packing and accordingly gave judgment for the amount claimed. On appeal, the Supreme Court reversed the trial magistrate’s decision on the ground that the appellant had failed to discharge the light onus that lay on it to prove that a

casualty had occurred which resulted in the damage. On appeal to the Court of Appeal, it was argued for the appellant company that having regard to the facts found by the trial magistrate, the approach of the Supreme Court was wrong in law in that it placed upon the appellant company an onus which did not lie upon it. Held – (i) from the extent of the damage the court had no doubt that in law the appellant company had discharged the onus of proving that the damage had resulted from a casualty; (ii) in this case, as damage from inherent vice was damage from an excepted risk, if the respondent company could have shown that the damage was directly caused by inadequate packing it would have been entitled to judgment; this was precisely what the respondent company sought to do before the trial magistrate but on the balance of probabilities, was rejected; (iii) the Supreme Court had erred in law in placing on the appellant company any onus of showing that the damage did not arise from inadequate packing. Appeal allowed. Cases referred to in judgment (1) British and Foreign Marine Insurance Co. Ltd. v. Gaunt, [1921] A.C. 41; [1921] All E.R. Rep. 447. (2) Gee & Graham Ltd. v. Whittall, [1955] 2 Lloyd’s Rep. 562. (3) Berk & Co. Ltd. v. Style, [1955] 3 All E.R. 625. (4) Theodoru v. Chester, [1951] 1 Lloyd’s Rep. 204. (5) Electro Motion Ltd. v. Maritime Insurance Co. Ltd., [1956] 1 Lloyd’s Rep. 420. (6) Ayoub v. Standard Bank, [1961] E.A. 743 (C.A.). March 26. The following judgments were read: Judgment Newbold Ag V-P: This appeal raises an important point of insurance law. As it is a second appeal it is, by reason of ss. 72 and 73 of the Civil Procedure Act, limited to matters of law. The relevant facts are that the appellant company, which I shall call “the trader”, insured seven cases of enamelware during transit from Liverpool to Page 110 of [1965] 1 EA 108 (CAN) Nairobi with the respondent insurance company, which I shall call “the insurer”. The insurance was what is known as an all-risks insurance and was against “All risks of loss or damage subject to the Institute Cargo Clauses (All Risks)”. The insurance attached while the goods were being carried by steamer, conveyance, air, parcel post either singly or severaly and by cl. 1 of the Institute Cargo Clauses (All Risks) it attached from the warehouse of the place of commencement of transit to the final warehouse at destination. Clause 6 of these clauses reads as follows: “This insurance is against all risks of loss or damage to the subject-matter insured but shall in no case be deemed to extend to cover loss damage or expense proximately caused by delay or inherent vice or nature of the subject-matter insured. Claims recoverable hereunder shall be payable irrespective of percentage.” On arrival in Nairobi the cases appeared to be in good condition but on being opened a very high percentage of the enamelware inside was found to be badly chipped. The goods were surveyed by an insurance surveyor who; in respect of the articles damaged, agreed that the damage extended to 50 per cent of their value. In his original report he stated that the articles of enamelware were wrapped in paper in nailed wood cases packed in wood wool and that the

nature and cause of the damage was chipping of the enamel probably due to rough-handling in transit. In his evidence he stated that at the time he made his first report he thought the goods had been transported from Mombasa to Nairobi by rail and it was for that reason that he stated the main cause of damage to be rough-handling. Having learned, however, that the goods were transported by motor transport, he considered that the main cause of damage was motor transport as, due to the continual jolting, the packing had settled or become loose. He stated also that in his opinion the packing was probably sufficient for rail transport but insufficient for road transport, and that it was unusual to get so much chipping of the enamel. The resident magistrate before whom the case was heard found as a fact that transport by road between Mombasa and Nairobi was not contrary to the terms of the policy, that the packing was reasonably adequate, that the trader had proved that some fortuitous circumstance had occurred to the goods and it was not for him to show how the goods were damaged, that the insurer had failed to prove that the damage was caused by inherent vice in the packing; and, accordingly, he gave judgment in favour of the trader for the amount claimed. On appeal to the Supreme Court this decision was reversed, the Chief Justice holding that the trader had failed to discharge the light onus that lay on it to prove that a casualty had occurred which resulted in the damage. From that decision the trader has appealed. In essence the main ground of appeal was that having regard to the facts found by the resident magistrate, the approach of the Chief Justice was wrong in law in that he placed upon the trader an onus which did not lie upon him. Both counsel who appeared for the trader, and counsel who appeared for the insurer, in the course of interesting submissions accepted the law to be that a plaintiff must prove that the loss in respect of which the claim was made must have been caused by some casualty during transit, but they differed as to the precise manner in which this could be done. They differed also in relation to the judgment of the Chief Justice. Counsel for the appellants submitted that the Chief Justice, without disturbing the findings of fact of the resident magistrate that the packing was adequate and that there was no inherent vice, had arrived at his decision on a finding that the plaintiff had not proved a casualty, a matter which was not directly in issue before the resident magistrate, and which, Page 111 of [1965] 1 EA 108 (CAN) having regard to the facts found and to the extent of the damage, it was not open to the Chief Justice to find. Counsel for the respondents submitted that the finding of no casualty by the Chief Justice was in effect a finding that the loss was caused by inherent vice due to inadequate packing and that in any event the plaintiff must prove casualty either directly or by inference from exceptional damage and that the damage in this case was not exceptional. During the submissions reference was made to the cases of British and Foreign Marine Insurance Co. Ltd. v. Gaunt (1), Gee and Garnham Ltd. v. Whittall (2), Berk and Co. Ltd. v. Style (3) and Theodorou v. Chester (4) upon which last case counsel for the respondent relied strongly. As Lord Birkenhead said in Gaunt’s case (1) an all-risks policy does not cover all damage however caused; the damage must be due directly to some accidental cause of any kind which occurred during transit. There is thus an onus on a plaintiff to show that the damage occurred from some act or omission, either deliberate or unintended, which directly resulted in the damage. It is this act or omission which is usually referred to as a casualty; and a casualty, as Lord Sumner said in Gaunt’s case (1), is something which injures the goods from without and not something which develops from within. An examination of the relatively few authorities on the position under an all-risks insurance, some of which authorities are not consistent one with

the other, leads me to the conclusion that a plaintiff cannot succeed under an all-risks policy of the type in question in this appeal unless he proves that the damage resulted directly from some act or omission deliberate or unintended, to the goods during the period of transit covered by the policy and that the damage was not such as was natural and inevitable in any circumstances. For example, it is natural and inevitable that a piece of enamelware should receive minor abrasions and scratches either from use or from being put in proximity to anything else. Such damage may be described as fair wear and tear and, as it must inevitably arise quite irrespective of the transit, it cannot be the subject of a claim under a policy which, even though it covers all risks, does not cover damage which is in any circumstances inevitable and which, therefore, does not result from a risk. On the other hand, it is not natural and inevitable that any appreciable chipping should occur; if it does, then this must have been caused by some act from outside the article. Again, to take the example referred to by the Chief Justice in his judgment, if a fragile glass is placed in an iron box for transport, it is neither natural nor inevitable that the glass should be broken during transit. It may be so wrapped and packed as to enable it to withstand the normal jolts of the transport without damage, or, though this would be a much more difficult matter, the box might be so handled as to preclude any jolt which would result in the breaking of the glass during transport. It is thus neither natural nor inevitable that where a glass is transported in an iron box the glass should be broken. If it is, the damage will arise from some outside act and this outside act is a casualty. As I have said, a plaintiff has to prove that the damage resulted from some casualty during the period of transport covered by the policy and that it was neither natural nor inevitable. Having said that, however, the question remains as to how he can prove it. In normal cases he can prove that the damage was neither natural nor inevitable from the mere nature of the damage; that is, he proves that it is damage of a kind which has been referred to in the cases as either exceptional or abnormal. These adjectives do not mean that the damage must be of an extraordinary nature; they merely mean that the damage is not such as must inevitably arise. The use of the epithets exceptional and abnormal has, I think, created an impression that before a plaintiff can succeed he must prove damage of an extraordinary nature; this is not so. Having proved, however, that the damage is of a nature which is neither natural nor Page 112 of [1965] 1 EA 108 (CAN) inevitable, the question still remains as to how a plaintiff is to prove the casualty. It is obvious that in the vast majority of cases the plaintiff would be completely unable to prove any specific act or omission which gave rise to the damage. As, however, the policy is against all risks, it is unnecessary, as Lord Birkenhead said in Gaunt’s case (1), to show the exact nature of the casualty. It is sufficient, as Lord Sumner said in the same case, if evidence is given “reasonably showing that the loss was due to a casualty”. If, therefore, it is admitted or proved that the goods were undamaged at the commencement of the period of insurance, that they arrived damaged and that the damage was of a nature which was neither natural nor inevitable, then the plaintiff has led evidence from which a casualty may reasonably be inferred and he has, therefore, subject to any further evidence, proved a casualty. It is at this point, with respect, that I consider that the Chief Justice erred. The difference between his approach to the onus which lay on the plaintiff and the approach of the resident magistrate to that some onus is exemplified by the difference between the approach of Croom-Johnson, J. in the Theodorou case (4) and that of Sellers, J., in Electro Motion Ltd. v. Maritime Insurance Co. Ltd. (5), a case which was not referred to by either counsel. In the Theodorou case (4), Croom-Johnson, J., at the end of a very long judgment said:

“In those circumstances, it seems to me that the only possible conclusion at which the court can arrive is, as I say, that, for some unexplained reason, in some unexplained way, which it is not for the plaintiff to prove, there was a casualty . . .”. He had, however, during the course of his judgment approached the problem on the basis that the onus was on the plaintiff to show that on a balance of probabilities the damage had not been caused by any theoretical way in which, according to the defendant, it could have been caused. As he said [1951] 1 Lloyd’s Rep. at p. 238): “It is, I think, for the plaintiff to satisfy me that these theories, if I come to the conclusion that they are reasonable possible theories, are not right.” In contrast to that, Sellers, J. in the Electro Motion Ltd. case (5) said: “The evidence establishes that the goods complied with the contract when delivered free on board at Dublin that they arrived damaged in the way that has been indicated and although the precise instant which caused the damage cannot be ascertained on the evidence before this court, it is damage in transit which is covered by the policy of insurance . . . That policy covered transit from warehouse to warehouse and it occurred in the course of that period.” I consider that having regard to the terms of the policy and the speeches in the Gaunt case (1), the approach of Sellers, J. is correct and that of Croom-Johnson, J. is not. I do not consider that Gee’s case (2) is of any assistance on this point as in that case the goods were not proved to have been undamaged at the commencement of the transport. On the facts of this case it is not in dispute that the enamelware started the journey undamaged. It is also not in dispute that on arrival of 360 saucepans and lids 99 were undamaged but 261 were damaged to the extent of one half of their value and that the percentage of damage of the other articles was similar. On these facts I have no doubt that in law the appellant had discharged the onus on him of proving that the damage had resulted from a casualty. Indeed, as Law, J.A. has pointed out in his judgment, which I have had the advantage of reading in draft, this was accepted by the parties during the hearing of the case before the resident magistrate. Page 113 of [1965] 1 EA 108 (CAN) In this policy, as indeed in almost every all-risks policy, there are exceptions whereby the insurer excludes liability under the policy if the damage results from a risk which is excepted. In this case, by cl. 6 of the Institute Cargo Clauses (All-Risks), damage from inherent vice or the nature of the subject matter was excluded. It is clear that if an insurer seeks to avoid liability on the ground that the damage resulted from an excepted risk, then the onus is on him to prove that the damage was a direct result of the excluded risk. It is not, I think, suggested that the damage in this case occurred from the nature of the subject matter. That exception is intended to refer to damage which results naturally from within, irrespective of any outside act, though, of course, any such damage may be augmented by an outside act. An example of such damage would be for perishable goods to go bad or for certain chemical reaction to take place merely by reason of exposure to air. This type of damage is frequently referred to as inherent vice. But where, as in this case, there is a reference both to inherent vice and to the nature of the subject matter, I understand inherent vice to be somewhat different. I understand it to be a quality in the insured article which may, though it need not necessarily, result in damage in the circumstances in which the goods may be expected to be transported. An example of this would be fragile or brittle articles which, unless adequately packed, will in all probability suffer damage in the normal conditions to which they would be subjected in the course of transit. Another example is the propensity which certain articles, such as coal, have to spontaneous combustion under certain conditions.

As I have said, if an insured package contains an article of such a nature that it will, unless adequately packed, suffer damage from the conditions to which the package would be expected to be subjected during normal transit, then in my view such damage would arise from inherent vice. In this case, as damage from inherent vice was damage from an excepted risk, if the insurer could have shown that the damage to the enamelware was directly caused by inadequate packing it would have been entitled to judgment. This is precisely what the insurer sought to do before the resident magistrate but, on the balance of probabilities, the resident magistrate was not satisfied that it had succeeded and he therefore gave judgment in favour of the trader. In my view the resident magistrate was correct in law in placing the onus on this matter on the insurer and in holding that, as on the facts found that onus had not been discharged and as damage from a casualty had already been sufficiently proved or admitted, therefore judgment in favour of the trader followed. With respect, I consider that the Chief Justice erred in law in placing on the trader any onus of showing that the damage did not arise from inadequate packing. For these reasons I would allow the appeal, restore the judgment and decree of the Resident Magistrate’s Court, set aside the judgment and decree of the Supreme Court and substitute therefor a judgment and decree dismissing the appeal to the Supreme Court with costs. I would allow the appellant his costs on the appeal to this court, with a certificate for two counsel. As the other members of the court agree it is accordingly so ordered. Spry JA: I agree that this appeal must be allowed. I have reached this conclusion with the greatest reluctance, as I think that the judgment of the trial court might properly have been reversed on grounds other than those on which the appeal to the Supreme Court was decided, in particular, that the learned resident magistrate reached a conclusion on the question whether the goods were reasonably packed which was so inconsistent with his findings of primary fact as to amount to an error of law and that he misdirected himself in his approach to the expert evidence, but there has been no cross-appeal and I do not think it would be proper for this court on a second appeal to consider questions that have neither been advanced nor argued before us. Page 114 of [1965] 1 EA 108 (CAN) I am, if I may say so with great respect, substantially in agreement with the enunciation of the relevant law contained in the judgment of the learned Vice-President but as the subject is one of considerable importance, I think I should add certain comments. It is clear on the authorities that in proceedings under an all-risks marine policy the initial onus is on the plaintiff to show that a claim lies under the policy. To do this, he must show that the goods started on their journey in good order and that they either failed to reach their destination or arrived in a damaged condition. He must either prove that an accident or “casualty” occurred or show that an accident should be presumed. The classic authority is the observation of Lord Birkenhead, L.C., in British and Foreign Insurance Co. v. Gaunt (1), when he said: “We are, of course, to give effect to the rule that the plaintiff must establish his case, that he must show that the loss comes within the terms of his policies; but where all risks are covered by the policy and not merely risks of a specified class or classes, the plaintiff discharges his special onus when he has proved that the loss was caused by some event covered by the general expression, and he is not bound to go further and prove the exact nature of the accident or casualty which, in fact, occasioned his loss.” The presumption that an accident has occurred will readily be inferred where it is proved that the goods were intact at the beginning of the journey and arrived in a damaged condition and where the nature and extent of the damage is not such as must have been expected by both parties

having regard to all the circumstances. On the particular facts of Gaunt’s case (1), Lord Birkenhead said: “The damage proved was such as did not occur, and could not be expected to occur, in the course of a normal transit. The inference remains that it was due to some abnormal circumstances, some accident or casualty.” The damage which the parties must be deemed to have expected, sometimes called “natural and inevitable” and sometimes “fair wear and tear”, is not a “risk” and therefore not covered by the policy. I do not, with respect, favour the use of the word “inevitable”, although there is the highest authority for its use. No damage is inevitable: goods may, and sometimes do, arrive undamaged. The matter is, I think, one of degree. Some goods are more fragile than others, and some are more valuable than others. The more fragile the goods, the more desirable it is that they be packed with care but obviously the time and money devoted to packing must be related to the value of the goods. It is, I think, for the court to determine on the particular facts of each case what measure of damage or “wear and tear” must be presumed to have been expected by the parties when the contract of insurance was entered into. The defence to such an action will normally consist either of a denial that there has been a casualty or of a plea that an exception to the policy applies, or of both, and where an exception is pleaded, the onus is, of course, on the defence. Theodorou v. Chester (4), was a case in which the defence was that the damage sustained by the goods was the ordinary wear and tear incidental to a long journey and was not the result of any fortuitous circumstance or any peril insured against. The onus was therefore on the plaintiff to satisfy the court that there had been a “casualty” and that involved rebutting various alternative suggestions put forward by the defence. On the other hand, the cases of Gee and Garnham Ltd. v. Whittall (2) and Electro Motion Ltd. v. Maritime Insurance Co. Ltd. (5) were both cases where the defence was or included an allegation of inherent vice. In the former case, the goods were of light metal and very prone to denting and arrived, as in the present case, in a large number of boxes none of which showed any outward Page 115 of [1965] 1 EA 108 (CAN) sign of injury (apart from certain boxes which were dealt with separately in the judgment). There was no evidence of any accident or of anything unusual concerning the journey. The trial judge concluded that the damage had occurred either in the course of packing or as a result of defective packing and held that the onus of proving inherent vice had been discharged. In the latter case, the defence of the insurers was that damage to a diesel engine, the subject of the claim, had not occurred during the journey and there was an alternative defence that any damage that had occurred in transit was due to inherent vice, the engine being already cracked at the time of shipping. The defence depended entirely on expert evidence that a crack in the engine must have been antecedent to the loading of the engine on the ship. There was, however, direct evidence, which the trial judge accepted, that the engine was in good order when it was shipped and there was evidence, which the trial judge also accepted, which indicated that the engine had received a severe blow. The trial judge found no difficulty on the evidence in finding for the plaintiff company against the insurers. I have dealt somewhat fully with these cases, because I think, with respect, that there is nothing irreconcilable in the decisions and that they all accord with the general principles I have sought to set out. Both Gee’s case (2) and Berk & Co. Ltd. v. Style (3) (which was referred to at all stages of these proceedings) are clear authority for saying that inadequate packing may constitute inherent vice.

Law JA: I have had the advantage of reading the judgment of Newbold, Ag. V.-P., with which I agree. I wish to add a few observations on one aspect of this appeal, and that is the effect, on the trial of a civil case, of issues which have been properly framed and recorded, as was the case here. The appellants (whom I shall refer to in this judgment as the plaintiffs) imported seven cases of enamel-ware to Kenya from the United Kingdom. These goods were insured for £205 by a certificate of insurance issued under a policy of marine insurance taken out by the plaintiffs with the respondents (hereinafter referred to as the defendants). The certificate covered the transit of the goods “at and from Liverpool to Nairobi” in respect of “All Risks of loss or damage, Subject to the Institute Cargo Clauses (All Risks) Including War and Strikes risks as per Institute Clauses”. The goods arrived in Nairobi towards the end of February, 1959, having travelled from Liverpool to Mombasa by sea and from Mombasa to Nairobi by road. In Nairobi there was no damage to the cases apparent on external examination, but when the cases were opened it was found that the enamelware in all seven cases had suffered damage by chipping. The defendants’ assessor examined the goods on March 4, 1959. He mistakenly assumed that the goods had travelled from Mombasa to Nairobi by rail. The following extracts are taken from his report– “Nature of packing. Pieces wrapped paper all in nailed wood cases packed with wood wool. External condition on arrival. Sound. Nature and cause of damage. Chipping of enamel, probably rough handling in transit.” The damage was estimated to amount to Shs. 1575/50. The defendants repudiated liability on the grounds that “the losses are not recoverable under the relative certificate”. The plaintiffs instituted a suit in the Resident Magistrate’s Court, Nairobi, by filing a plaint claiming Shs. 1575/50, interest and costs from the defendants, alleging that their goods “were damaged by one of the perils or causes” covered Page 116 of [1965] 1 EA 108 (CAN) by the certificate and policy of insurance issued by the defendants. The defendants in their defence pleaded a number of defences, of which the only one which is still material is: “. . . that the loss was not by one of the perils insured against”. At the hearing before the learned resident magistrate, the issue arising out of this defence was framed in the following terms: “1(a) Are the defendants entitled to refuse to pay the claim on the grounds that there was an ‘inherent vice’ in that the goods were insufficiently packed.” This issue was obviously framed with regard to clause 6 of the Institute Cargo Clauses (All Risks) which formed part of the policy of insurance and which reads as follows: “This insurance is against all risks of loss of or damage to the subject-matter insured but shall in no case be deemed to extend to cover loss damage or expense proximately caused by delay or inherent vice or nature of the subject-matter insured . . .”. Counsel for the plaintiffs then submitted that the burden of proof was on the defendants. The learned trial magistrate is recorded as having said “I think Mr. Ransley (counsel for the defendants) has admitted the onus is on him to prove that the exceptions apply”, to which Mr. Ransley is recorded as having replied “Yes”. To my mind this admission is of the utmost importance in deciding this appeal. From the outset the trial proceeded on the basis that the plaintiffs were relieved of the duty of proving a casualty, or accident, of such a nature as to bring their loss within the policy and no issue was framed posing the question “was the damage to the

goods due to a risk covered by the policy?”. On the contrary, the defendants undertook the onus of proving inherent vice in the goods. The learned resident magistrate, in a carefully considered judgment, found that the evidence was insufficient for him to find that there was inherent vice in the goods by reason of insufficient packing. He concluded “That being so, the damage was caused through a risk which was covered by the policy and the insurers should pay. On issue 1 (a) there was no inherent vice’.” The defendants appealed to the Supreme Court. The learned Chief Justice allowed the appeal, for reasons which appear from the following extract taken from his judgment: “Here however were seven cases, all undamaged, the contents of which had behaved in just the same way. The packing had separated from the goods. On the evidence that was due to ‘somewhat continued shaking’. Upon the only evidence before the learned magistrate it does seem to me that the most likely cause of that separation was the road journey. There is no evidence at all that the road journey was other than normal. Given the packing used, the ordinary incidents of the road journey would, on the surveyor’s evidence, cause the separation of the utensils and packing. I say again that the separation could have been caused in other ways, that it could have been caused by a casualty, but in a difficult case, and with respect to the learned magistrate, I think that the balance of probabilities lay with the appellants, and that on the whole of the evidence the respondents failed to discharge the admittedly light onus which lay on them. For these reasons I allow the appeal.” With great respect, the learned Chief Justice decided the appeal on an issue which was never an issue at the original hearing before the learned magistrate. As counsel has submitted for the plaintiffs, there was no issue as to whether or not the plaintiffs had established that a casualty had occurred, so as to bring their Page 117 of [1965] 1 EA 108 (CAN) loss within the terms of the policy. On the contrary, the relevant issue was framed by agreement of the parties in such a way as to place on the defendants the onus of proving the existence of inherent vice so as to entitle them to repudiate liability under the policy, and the defendants’ counsel is on record as having specifically undertaken to discharge this onus. The learned magistrate found that the defendants had failed to discharge this onus, and there is nothing in the learned Chief Justice’s judgment to suggest that in his opinion they had discharged this onus. The learned Chief Justice allowed the appeal solely on the ground that the plaintiffs had failed to discharge the onus of proving the occurrence of a casualty. As to this, I am of opinion that that onus was discharged, on the evidence, but even if the plaintiffs had not been able to prove a casualty, the trial, with the agreement of the parties, proceeded on the basis that the defendants had undertaken the burden of proving that they were entitled to repudiate liability because of inherent vice, within the meaning of cl. 6 of the Institute Cargo Clauses. This they failed to do. Where the parties agree an issue, the court should decide the case upon that issue, if it is properly framed and arises out of the pleadings, as was the case here. As Gould, J.A. (as he then was) said in Ayoub v. Standard Bank (6) ([1961] E.A. at p. 752): “Mr. Gratiaen submitted that . . . once one specific issue had been agreed upon it was wrong to take the view that even if the agreement did not create a trust certain other facts not pleaded gave rise to an independent trust. The court was tied by the agreement between counsel. I agree that, in the circumstances, what the court had to do was to decide the single issue upon which counsel had agreed that the success or failure of the action depended . . . it was an agreement between experienced counsel who had all the facts before them . . .”.

In the same way, in the case now under consideration, experienced counsel who had all the facts before them agreed that the main issue upon which the success or failure of the action depended was: “1(a) Are the defendants entitled to refuse to pay the claim on the grounds that there was an ‘inherent vice’ in that the goods were insufficiently packed.” and counsel for the defendants unequivocally undertook to discharge the onus of proving that issue. It was never an issue that the plaintiffs should prove that a casualty or accident had occurred, and it is in my opinion wrong that the plaintiffs should be non-suited for having failed to prove something which was never made an issue between the parties at the trial. For these reasons alone I would allow this appeal, set aside the judgment of the Supreme Court and restore the judgment of the resident magistrate. Appeal allowed. For the appellant company: JM Nazareth, QC and TG Bakrania Veljee Devshi & Bourania, Nairobi For the respondent company: BO’Donovan, QC and PJ Ransley MacDougall & Wollen, Nairobi RES IPSA LOQUITOR Msuri Muhhiddin v Nazzor Bin Seif El Kassaby and another [1960] 1 EA 201 (CAZ) Division: Court of Appeal at Zanzibar Date of judgment: 26 February 1960 Case Number: 108/1959 Before: Sir Kenneth O’Connor P, Sir Alastair Forbes VP and Gould JA Sourced by: LawAfrica Appeal from: H.M. High Court of Zanzibar – Horsfall, J. [1] Negligence – Res ipsa loquitur – Motor accident – Appellant injured as a result of motor bus overturning – Onus on bus owner and driver to disprove negligence – Accident due to tyre burst – Whether onus discharged. Editor’s Summary The appellant sued the respondents for damages in respect of personal injuries suffered by him when a motor bus in which he was travelling which was owned by the first and driven by the second respondent overturned when both the offside rear tyres burst. Evidence was led for the appellant on the speed and control of a bus after a tyre burst, but no evidence on the state of the road, the bus, or of the burst tyres immediately after the accident. The trial judge accepted the evidence of the second respondent that he was not driving at an excessive speed and that he had satisfied himself, before driving, that the tyres were good with tread still on them, and applying the doctrine of res ipsa loquitur held that the second respondent had discharged the burden of showing how the accident could reasonably have happened without negligence on his part. On appeal it was contended for the appellant that (1) the trial judge had erred in disbelieving the appellant and his witnesses, and ought to have held that the accident was due to excessive speed and the failure of the second respondent, as driver, to keep a proper look-out, (2) the trial judge

wrongly applied the doctrine of res ipsa loquitur by holding that the burden of proving how the tyre burst was on the appellant, and (3) the trial judge ought to have held that the onus to prove how the tyre burst was on the respondents and that on his failing to discharge that onus ought to have entered judgment against the respondents. Counsel for the respondents while supporting the decision of the trial judge, contended that as the trial judge had found that the probable cause of the accident was “rough solid stone under the road”, the accident should have been found to be due to circumstances not within the respondents’ control. Held – (i) as to the first ground of appeal, matters of credibility were peculiarly matters for the trial judge and in the absence of evidence as to the state of the tyres at the time of accident, the distance the bus travelled after the tyres burst and other relevant facts, it was quite impossible to say that the trial judge’s conclusions of fact were wrong. (ii) the respondents could avoid liability by showing either that there was no negligence on their part which contributed to the accident, or that there was a probable cause of the accident which did not connote negligence on their part, or that the accident was due to circumstances not within their control; and on the trial judge’s findings of fact the respondents had succeeded in establishing these propositions. (iii) the court could not accept the proposition that if the immediate cause of the burst tyre was the rough surface of the road, that in itself established that the accident was due to circumstances not within the respondents’ control: the speed of a vehicle in relation to the particular road conditions was a most material factor and one which normally was within the control of the driver Page 202 of [1960] 1 EA 201 (CAZ) of the vehicle, and there was certainly a duty on a driver to keep a proper look-out to ascertain the condition of the road and to adapt the speed of the vehicle to it. Appeal dismissed. Cases referred to in judgment: (1) Moore v. R. Fox & Sons, [1956] 1 All E.R. 182. (2) Barkway v. South Wales Transport Co. Ltd., [1948] 2 All E.R. 460. (3) Woods v. Duncan, [1946] A.C. 401. (4) Wing v. London General Omnibus Co., [1909] 2 K.B. 652. The following judgments were read: Judgment Sir Alastair Forbes VP: This is an appeal from a judgment and decree of the High Court of Zanzibar dated September 19, 1959, dismissing a suit by the appellant as plaintiff claiming damages in respect of personal injuries suffered by him when a motor bus in which he was travelling overturned. The first and second respondents, who were the defendants to the suit, were respectively the owner and the driver of the motor bus in question. The evidence and findings of fact in the case appear in the following passage from the judgment of the learned trial judge: “The plaintiff, who sues as a poor person, claims Shs. 4,400/- as special damages and Shs. 10,000/- as general damages for personal injuries, pain and shock caused by the negligence of the second defendant while driving a bus belonging to the first defendant. It is not disputed that the plaintiff was a passenger in the bus when it overturned nor that the second defendant was at the time driving it as servant of the first defendant and in the course of his duties as such.

“2. In his amended plaint the plaintiff relied on the following particulars of negligence: (1) that the second defendant drove the bus at excessive speed (2) that the second defendant failed to keep a proper look out and (3) that the second defendant failed in his statutory duty to provide sound off side rear tyres in the said bus contrary to the provisions of reg. 22 (6) of the Road Traffic Regulations and (4) in the alternative that second defendant committed a breach of his statutory duty by driving the said bus at a speed exceeding thirty miles contrary to reg. 51 (2) of the Road Traffic Regulations. By consent a fifth particular was added later (viz) that the second defendant was negligent in leaving the steering of the bus and in jumping off immediately after the tyres burst with the result that the bus was left uncontrolled and unattended. “3. In proof of that part of his case which dealt with the question of liability the plaintiff called himself and three other passengers, who were inside the bus and involved in the accident, as witnesses. He called a final witness Behari Joshi, a senior mechanic in the P.W.D. on the question of speed and controlling a bus after a tyre burst, but unfortunately he neglected to call any evidence of the state of the road or of the bus or of the burst tyres immediately after the accident. Such evidence was available, since I am informed that the police visited the scene immediately after the accident and that the bus itself was examined by one D. H. Nassor. Counsel for the plaintiff did not think it necessary to bring this man from Pemba to give evidence or to take his evidence on commission. Page 203 of [1960] 1 EA 201 (CAZ) “4. The plaintiff and his fellow passengers in the bus failed to impress me as having reasonable ability to gauge the speed at which the bus was travelling. One of them purported to have read the speedometer at 60 m.p.h. and another agreed in cross-examination that 60 m.p.h. would be a fair estimate. The other witnesses put it as a great speed. As one expressed it: ‘Nothing except speed caused the accident’. I do not believe that one witness read the speedometer. I think that the circumstances surrounding the overturning and the blow out have caused the witnesses either intentionally or otherwise to exaggerate the speed at which the bus was travelling. There is no evidence of the distance the bus travelled after the blow out, no evidence of the violence of the impact of the wheel rim with the road surface after the tyre subsided, no evidence how far, if at all, the bus dragged on its side. “I don’t accept the evidence that the second defendant jumped out nor that he failed to keep a proper look out. Mr. Chowdhary’s submission on this last was that the second defendant stated in cross-examination to him that he approached the curve at about 25 m.p.h. and increased speed to 30 when rounding the bend. I am satisfied that the second defendant made an honest slip of the tongue in giving his answer and, when he realised it, he corrected it to a speed of about 30 m.p.h. when approaching the curve which he reduced to 25 m.p.h. when on the bend. “As to credibility I prefer the version of the accident as given by the second defendant. My finding of fact as to the accident is as follows: second defendant drove the bus on the tarmac road from Zanzibar to Ungujauku. At a left hand bend near mile 16 1/2 both tyres on the offside back wheel burst. His speed was around 30 m.p.h. The bus was full, containing some twenty-three passengers. The second defendant realised the tyres had burst and tried to control the bus but before the bus came straight the rim of the back wheel hit the road surface. The bus stopped. It rose and overturned on the off-side, where it lay. The second defendant was dazed and after two or three minutes he climbed out from the top side of the bus. I do not consider that any adverse inference of excessive speed against the defendant should be drawn from the fact that the bus rose and overturned.”

The learned judge then proceeds in the judgment to deal with the application of the doctrine of res ipsa loquitur to the case, and for this purpose he relies on a statement of the principles of the doctrine which appears at p. 470 of the 9th Edn. of Salmond on The Law of Torts, which reads as follows: “. . . but where the thing is shown to be under the management of the defendant and his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care. On the other hand, if the defendant produces a reasonable explanation, equally consistent with negligence and no negligence, the burden of proving the affirmative, that the defendant was negligent and that his negligence caused the accident, still remains on the plaintiff.” The learned judge then says: “7. Mr. Chowdry for the plaintiff has urged that if the evidence of the defendant that the tyres are good is believed he must give an explanation of how they burst. The very fact of their bursting shows that the tyres were bad. I have heard no evidence to suggest that in the conditions under which passenger buses are run in Zanzibar the high standard of regular inspection of tyres according to the routine practice of omnibus companies Page 204 of [1960] 1 EA 201 (CAZ) in the United Kingdom must necessarily apply to Zanzibar. It is I think sufficient if the defendants have used reasonable care to secure the safety of their passengers having regard to conditions of operating buses prevailing in Zanzibar. “The defendant’s explanation is that this bus is new, some four or five months old. It is the ordinary Zanzibar type bus with double tyres on each rear wheel. The inner tubes have been changed but the tyres which burst had been used on the bus continually. He described the tyres as not new at the time of the accident but good tyres with the treads still on them. He had no reason to believe that there was any fault in them. The plaintiff has not led any evidence to show that the tyres on inspection after the accident were found worn smooth and thin and hence a warning to a reasonably careful bus operator that they were a potential danger. I am left with the evidence of the second defendant, which I accept, that he had no reason to believe that the tyres were not safe. He has done his duty of safety to the public by satisfying himself that they were good tyres with the treads still on them. I do not think that in present conditions in Zanzibar he is required to conduct a routine inspection for hidden weaknesses as was laid down in Barkway’s case. Barkway’s case is peculiar to the U.K. having regard to the evidence therein of what is the practice of other omnibus companies in regard to a system of tyre inspection. “8. In my opinion the second defendant was not driving at an excessive speed having regard to the conditions and user of the road. There is evidence that bursts can be caused by sharp things on the road. It is quite probable that the rough solid stone under the road near where the tyres burst was the immediate cause. I have given serious thought to the fact that both tyres burst at the same time and whether I should not draw an inference adverse to the defendant. There is no evidence on the point to guide me. I assume that both tyres having been in use on the same side of the bus for equal periods would be equally worn and develop equal weaknesses. When the same cause of bursting operated on both I assume that there is no significance in both tyres bursting together. I consider that the defendant has discharged the burden of showing how the accident could reasonably happen without negligence on his part. It follows that the plaintiff fails on the question of liability.”

As remarked by the learned judge, the appellant sued as a poor person, but he was represented in the proceedings in the High Court, an advocate having been assigned to him for the purpose. The appeal to this court was also in forma pauperis, but the appellant was unrepresented, no application having been made under r. 82 (5) of the Eastern African Court of Appeal Rules, 1954, for assignment of an advocate to him. It may be added that it would seem unlikely that an application for assignment of an advocate under that rule could have been successful. The first three grounds of appeal complain that the learned judge erred in disbelieving the appellant and his witnesses and claim that he ought to have held that the accident was due to excessive speed and the failure of the second respondent as driver to keep a proper look-out. This also was the substance of appellant’s address to the court. As to this, it is sufficient to say that matters of credibility are peculiarly matters for the trial judge and that, in the absence of evidence as to the state of the tyres at the time of the accident, the distance the bus travelled after the blow out of the tyres, and other relevant facts noted by the learned judge in his judgment, it is quite impossible for this court to say that the learned judge’s conclusions of fact were wrong. I think those grounds of appeal must fail. Page 205 of [1960] 1 EA 201 (CAZ) The last two grounds of appeal read as follows: “4. That the learned judge wrongly applied the doctrine of ‘res ipsa loquitur’ by holding that the burden of proving how the tyre burst was in the appellant. “5. He ought to have held that the onus to prove how the tyre burst lies on the respondent and on his failing to discharge the onus ought to have entered judgment against the respondents.” Mr. Fraser Murray, who appeared for the respondents at the hearing of the appeal, very properly drew our attention to the case of Moore v. R. Fox & Sons (1), [1956] 1 All E.R. 182, and conceded that the passage from Salmond set out above can no longer be regarded as an accurate statement of the law, and that the obligation upon the respondents was not merely to produce an explanation equally consistent with negligence or no negligence, but to show a probability that the accident happened without negligence. He referred, inter alia, to Barkway v. South Wales Transport Co. Ltd. (2), [1948] 2 All E.R. 460, Woods v. Duncan (3), [1946] A.C. 401 and Wing v. London General Omnibus Co. (4), [1909] 2 K.B. 652, and argued that there would be no liability on the respondents if they could show either (a) absence of negligence, or (b) probability that the accident happened without negligence, or (c) that the accident was due to circumstances not within the respondents’ control. He contended that the learned judge’s findings of fact established each of these propositions in favour of the respondents. The passage in the judgment of Sir Raymond Evershed, M.R., in Moore v. R. Fox & Sons (1) to which Mr. Fraser Murray referred is at p. 189 of the report, and reads as follows: “So, in The Kite Langton, J., said ((1933) P. at p. 168) ‘When they (the defendants) have given that explanation one has still to see whether negligence has been proved. The explanation may be disbelieved; the explanation may not at all exclude negligence, but the explanation may leave the matter still in some doubt as to exactly how the occurence did happen, but leave an equal possibility that it happened without negligence as with negligence.’ “If, by the passage which I have last quoted, Langton, J., meant to lay it down that in a case of res ipsa loquitur, that is to say a case in which the onus has been cast on the defendants, it is sufficient to discharge that onus for them to show that the accident might have occurred for more than one reason some of which reasons are consistent with the absence of negligence, then it

seems to me that the conclusion is not justified and is in conflict with the formulation of Asquith, L.J., in Barkway v. South Wales Transport Co. Ltd. and the language of Lord Radcliffe in Esso Petroleum Co. Ltd. v. Southport Corpn. I must not be taken to be suggesting that The Kite was therefore wrongly decided. That was a case in which the plaintiffs, owners of cargo loaded in a barge, sued the owners of the tug which was towing the barge for negligent navigation on the part of the tug master since the barge containing the plaintiffs’ goods had, in the course of the tow, come into collision with an arch of a railway bridge, and the goods were thereby damaged. The tug master gave evidence which the judge believed. The effect of that evidence was that, at the critical time, the barge containing the plaintiffs’ goods swung outwards from the barge to which it should have been made fast, and that the collision was, in the tug master’s view, due to that fact. It was accepted by the judge that the navigation by the tug master was in no sense careless and, if so, the swinging out of the barge containing the plaintiffs’ goods was attributable Page 206 of [1960] 1 EA 201 (CAZ) to the fact that it had not been properly made fast to the adjacent barge, a circumstance which was wholly outside the tug master’s control and for which, therefore, his company was in no sense responsible. In other words, as I follow the facts and findings in The Kite, the defendants there proved by the tug master’s evidence, as was proved in Woods v. Duncan by the evidence of Lieutenant Woods, that, whatever in fact was the cause of the accident, there had been no fault or want of care on the part of the party sued.” In Barkway v. South Wales Transport Co. Ltd. (2), Asquith, L.J., at p. 471 of the report, said: “The position as to onus of proof in this case seems to me to be fairly summarised in the following short propositions. (i) If the defendants’ omnibus leaves the road and falls down an embankment, and this without more is proved, then res ipsa loquitur, there is a presumption that the event is caused by negligence on the part of the defendants, and the plaintiff succeeds unless the defendants can rebut this presumption. (ii) It is no rebuttal for the defendants to show, again without more, that the immediate cause of the omnibus leaving the road is a tyre-burst, since a tyre-burst per se is a neutral event consistent, and equally consistent, with negligence or due diligence on the part of the defendants. When a balance has been tilted one way, you cannot redress it by adding an equal weight to each scale. The depressed scale will remain down. This is the effect of the decision in Laurie v. Raglan Building Co. Ltd., where not a tyre-burst but a skid was involved. (iii) To displace the presumption, the defendants must go further and prove (or it must emerge from the evidence as a whole) either (a) that the burst itself was due to a specific cause which does not connote negligence on their part but points to its absence as more probable, or (b) if they can point to no such specific cause, that they used all reasonable care in and about the management of their tyres: Woods v. Duncan, The Thetis.” It may be noted that Barkway’s case was considered by the learned judge in his judgment. In Woods v. Duncan (3) at p. 439 of the report, Lord Simmonds said: “I will add first a few words upon the question of the liability of Lieutenant Woods. I will assume against him, though I doubt whether the assumption is justified that this is a case in which the principle of res ipsa loquitur may be applied. But to apply this principle is to do no more than shift the burden of proof. A prima facie case is assumed to be made out which throws upon him the task of proving that he was not negligent. This does not mean that he must prove how and why the accident happened: it is sufficient if he satisfies the court that he personally was not negligent. It may well be that the court will be more easily satisfied of this fact if a plausible explanation which attributes the accident to some other cause is put forward on his behalf; but this is only a factor in the consideration of the probabilities. The accident may remain

inexplicable, or at least no satisfactory explanation other than his negligence may be offered: yet, if the court is satisfied by his evidence that he was not negligent, the plaintiffs’ case must fail.” The paragraph in Wing v. London General Omnibus Co. (4) relied on by Mr. Fraser Murray appears in the judgment of Fletcher Moulton, L.J., at p. 663 of the report: “. . .Without attempting to lay down any exhaustive classification of the cases in which the principle of res ipsa loquitur applies, it may Page 207 of [1960] 1 EA 201 (CAZ) generally be said that the principle only applies when the direct cause of the accident, and so much of the surrounding circumstances as was essential to its occurrence, were within the sole control and management of the defendants, or their servants, so that it is not unfair to attribute to them a prima facie responsibility for what happened. An accident in the case of traffic on a highway is in marked contrast to such a condition of things. Every vehicle has to adapt its own behaviour to the behaviour of other persons using the road, and over their actions those in charge of the vehicle have no control.” In the light of the dicta set out above I accept Mr. Fraser Murray’s propositions that the respondents can avoid liability if they can show either that there was no negligence on their part which contributed to the accident; or that there was a probable cause of the accident which does not connote negligence on their part; or that the accident was due to circumstances not within their control. And I feel bound to agree that on the learned judge’s findings of fact the respondents have succeeded in establishing these propositions. The learned judge found on the evidence that the tyres of the bus were good tyres with the tread still on them, that the second respondent had no reason to believe they were not safe, and that he had done his duty of safety to the public by satisfying himself that they were good tyres with the tread still on them. He found also that the speed of the bus at the time of the accident was around 30 m.p.h. It was not suggested at the trial that 30 m.p.h. was an excessive speed in the particular circumstances of the case: the appellant’s case was that the speed of the bus was far in excess of 30 m.p.h., but that contention was not accepted. Finally, the learned judge found that a probable cause of the accident was “rough solid stone under the road”. The evidence on this point had been that at the place of the accident “the sub-surface of road was solid stone which caused a bump in the surface of the road.” I do not accept Mr. Fraser Murray’s proposition that the mere fact that the immediate cause of the burst tyres was the rough surface of the road established that the accident was due to circumstances not within the respondent’s control. The speed of a vehicle in relation to the particular road conditions is a most material factor and one which normally is within the control of the driver of the vehicle, and there is certainly a duty on a driver to keep a proper look-out to ascertain the condition of the road and to adapt the speed of the vehicle to it. In the instant case, however, the learned judge expressly found that the second respondent was not driving at an excessive speed having regard to the conditions and user of the road. For these reasons, and on the basis of the cases cited, I think the respondents have discharged the onus thrown on them by the application of the principle of res ipsa loquitur, and that the appeal must be dismissed. Sir Kenneth O’Connor P: I agree. The appeal is dismissed. As the appellant has leave to appeal in forma pauperis, there will be no order as to costs. Gould JA: I also agree. Appeal dismissed. For the appellant:

Lakha & Co., Zanzibar For the respondents: Fraser Murray and A. A. Lakha. TRAFFIC OFFENCES Kamau s/o Muga v R [1963] 1 EA 172 (SCK) Division: HM Supreme Court of Kenya at Nairobi Date of judgment: 26 October 1962 Case Number: 888/1962 Before: Rudd Ag CJ and Edmonds J Sourced by: LawAfrica [1] Street traffic – Evidence – Mechanically propelled vehicle – Causing death by dangerous driving – Evidence of mechanical defect in steering mechanism of vehicle – Accused under influence of drink – Defence that accident caused by mechanical defect – Whether onus of proof shifts to the defence – Traffic Ordinance, 1953, s. 43 and s. 44 (K.). [2] Criminal law – Practice – Mechanically propelled vehicle – Whether indictment should contain both charge of causing death by dangerous driving and charge of driving under influence of drink. Editor’s Summary The applicant was convicted in the magistrate’s court on three counts, namely, causing death by dangerous driving, driving under the influence of drink and driving an unlicensed public service vehicle and now appealed against the conviction and sentence on the first count. At the trial, evidence was adduced that there was a mechanical defect in the steering mechanism of the vehicle and also that the appellant was under the influence of drink to such an extent Page 173 of [1963] 1 EA 172 (SCK) as not to be capable of proper control. The appellant’s defence was that the accident which gave rise to the charge in the first count was caused by the mechanical defect. On appeal, it was argued for the Crown that even if the steering became defective, a defence based on such a mechanical defect could not succeed unless it was the only possible cause of the accident, in other words, that if the evidence were such as to indicate that the accident could have been caused by dangerous driving the existence of the mechanical defect would be of no assistance to the accused. Crown Counsel also invited the attention of the court to the English case of R. v. McBride, [1961] 3 W.L.R. 549 and requested a direction in similar terms to that given by the Court of Criminal Appeal on the advisability of joining a count of driving when under the influence of drink with a count of causing death by dangerous driving. Held – (i) generally speaking an indictment containing a charge of causing death by dangerous driving should not include a charge of driving under the influence of drink but a charge of driving under the influence of drink may properly be coupled with a charge of dangerous driving if the evidence regarding the influence of drink upon the driver is such as to justify it. Dictum in R. v. McBride, [1961] 3 W.L.R. 549, approved.

(ii) the fact that a person may be under the influence of drink and may not thereby be capable of having proper control of his vehicle is a factor by itself, and if no other factor intervenes may clearly be the cause of his driving dangerously, but if another factor intervenes, such as a mechanical defect of which the driver had no knowledge or no reason to suspect its presence or likelihood, then the question must inevitably arise as to whether even if he had not been under the influence of drink he could have so controlled the vehicle as to avoid driving dangerously. (iii) in such circumstances the onus is upon the Crown to establish affirmatively and beyond reasonable doubt that the person’s dangerous driving was due to a cause which was within his control: R. v. Spurge, [1961] 3 W.L.R. 23 applied. (iv) the prosecution had not proved that the erratic movement of the vehicle was due to a cause or causes other than the mechanical defect, in other words, that the appellant was driving dangerously irrespective of the defect and that the death of his passenger was not caused by that defect but was caused by reason of dangerous driving. Appeal allowed. Conviction and sentence on the first count set aside. Cases referred to in judgment: (1) R. v. McBride, [1961] 3 W.L.R. 549; [1961] 3 All E.R. 6; 45 Cr. App. R. 262. (2) R. v. Spurge, [1961] 3 W.L.R. 23; [1961] 2 All E.R. 688; [1961] 2 Q.B. 205. Judgment Rudd Ag CJ: read the following judgment of the court: The appellant was convicted on the following three counts under the Traffic Ordinance, 39/1953: Count 1: Causing death by driving, contrary to s. 44 (A) of the Traffic Ordinance, 1953, as amended by Ordinance 14/58. Particulars of Offence: Kamau s/o Muga, on December 23, 1961, at about 8 p.m. on Nembu/Mutati road near Mutati Town in Kiambu district within Page 174 of [1963] 1 EA 172 (SCK) the Central Province caused the death of Ndungu s/o Kabue by driving motor vehicle Ford pickup Reg. No. KFJ. 939 in a manner dangerous to the public having regard to all circumstances of the case. Count 2: Driving when under the influence of drink, contrary to s. 43 (1) of the Traffic Ordinance, 1953. Particulars of offence: Kamau Muga, on December 23, 1961, at about 8 p.m. at Nembu/Mutati road in Kiambu district of Central Province, drove a Ford pick-up motor vehicle No. KFJ. 939 on a road, when under the influence of drink to such an extent as to be incapable of having proper control of the vehicle. Count 3: Driving unlicensed public service vehicle, contrary to s. 92 of the Traffic Ordinance, 1953. Particulars of Offence: Kamau Muga, on December 23, 1961, at 8 p.m. at Nembu/Mutati Road in Kiambu district of Central Province, drove a public service vehicle, a Ford pick-up KFJ. 939 when there was not in force in relation to such vehicle a P.S.V. licence issued under the Ordinance. The appellant was sentenced to six months’ imprisonment on the first count and three months’ imprisonment on the second count, to run concurrently, and to a fine of Shs. 50/- or fifteen days imprisonment in default of payment on the third count. Additionally the appellant was

disqualified from holding a driving licence for twelve months. He now appeals against conviction and sentence on the first count. Before dealing with the grounds of his appeal we would first allude to the subject of the joining of a count of driving when under the influence of drink under s. 43 (1) of the Ordinance with a count of causing death by driving under s. 44 (A). Learned counsel for the Crown invited our attention to the case of R. v. McBride (1), [1961] 3 W.L.R. 549, and a request was made that this court should give a direction in similar terms to that given by the Court of Criminal Appeal on the subject of joining these counts. There appears the following passage at p. 552 of the judgment of that court in R. v. McBride (1): “In the course of the argument before this court a request was made by counsel for the prosecution that some guidance should be given on the question whether a charge under s. 6 . . . [Driving when under the influence of drink] . . . of the Road Traffic Act, 1960, should be preferred in addition to a charge of dangerous driving, assuming that there is evidence to justify such additional charge. Without wishing to give any general direction this court is of the following opinion: (a) an indictment containing a charge under s. 1 of the Act (causing death by dangerous driving) should not include a charge under s. 6. This view is in accordance with the practice under which an indictment charging manslaughter has not included a count alleging driving under the influence of drink. (b) A charge under s. 6 may properly be coupled with a charge of dangerous driving under s. 2 if the evidence regarding the influence of drink upon the driver is such as to justify it.” We desire respectfully to associate ourselves with this general direction for the guidance of the courts in this colony. However, in regard to the relevance or otherwise of the condition of the driver due to drink to the question of whether he was driving dangerously the Court of Criminal Appeal had this to say, at p. 551: “In the opinion of this court, if a driver is adversely affected by drink, this fact is a circumstance relevant to the issue whether he was driving dangerously. Evidence to this effect is of probative value and is admissible Page 175 of [1963] 1 EA 172 (SCK) in law. In the application of this principle two further points should be noticed. In the first place, the mere fact that the driver has had drink is not of itself relevant: in order to render evidence as to the drink taken by the driver admissible, such evidence must tend to show that the amount of drink taken was such as would adversely affect a driver or, alternatively, that the driver was in fact adversely affected. Secondly, there remains in the court an overriding discretion to exclude such evidence if in the opinion of the court its prejudicial effect outweighs its probative value. It is impossible to lay down any general rule as to the way in which this discretion should be exercised, as each case must be considered in the light of its own particular facts, but in the opinion of this court, if such evidence is to be introduced, it should at least appear of substantial weight.” We are of the opinion that in the case before us the evidence as to the appellant’s condition in regard to drink was clearly of substantial weight, and the learned trial magistrate was right to exercise his discretion in admitting that evidence. We are of this opinion despite the fact that we do not think that, in the result, the prosecution discharged the burden upon it of proving beyond reasonable doubt that the accident which resulted in the death of a passenger in the appellant’s vehicle was due to the factor of dangerous driving and to no other factor.

The appellant’s defence to the first count was that the accident was caused by a defect in the steering mechanism of his vehicle. In a cautioned statement which he made to the police on the day following the accident the appellant made no mention of this defect, but five day’s later he appears to have asked to be allowed to add to that statement and he then said, again under caution: “. . . when the vehicle fell down the steering had already broken, and I think that was the cause of the accident.” However, to the police officer investigating at the scene of the accident soon after it had occurred, the appellant said the accident was due to the fact that his steering had broken. The vehicle was not mechanically examined until January 9, 1962, some seventeen days after the accident, and evidence of the examination is given by a mechanic to whose workshop the vehicle had been taken and who was called as a defence witness. His evidence, which was not challenged by the prosecution, was as follows: “The nut on the steering rod had fallen off. It connects the steering arm and the tie rod. If this nut comes off, the vehicle cannot be steered. If it can come off the retaining split pin is lost. This pin can come off by itself. It can also come off in a comparatively new vehicle.” A vehicle inspector who was called by the prosecution gave this evidence, which is in some support of the evidence of the mechanic: “The drag link and a steering arm are a vital part of the steering. They are connected by a drop arm drag link connection. It is unlikely for the connecting pin to fall off but it may break and cause loss of control over the vehicle. “As long as the retaining nut on the pin is in place, the vehicle can be controlled. The nut can get loose quicker on a rough road.” In his evidence at his trial the appellant spoke of the steering wheel spinning in his hands just before the accident. In dealing with this defence and the evidence in regard thereto the learned magistrate said merely: Page 176 of [1963] 1 EA 172 (SCK) “I do not believe that the accident was caused by a mechanical defect in accused’s vehicle.” We do not think that this was adequate consideration of the evidence as to the defect nor do we think that the learned magistrate appreciated fully the significance of the rough sketch which was put in by the prosecution. In referring to this he says that: “. . . on a section of the road as shown in exhibit 3 (the sketch) he swerved about hitting the road bank on the offside several times and eventually overturned.” We think that the use of the words “swerved about” are not an accurate description of the course of the vehicle. The rough sketch shows that the vehicle appears suddenly to have veered to its right and struck the bank running along the side of the road. It then came away from the bank and swung into it again a distance of 52 feet 6 inches further on. It again came away from the bank and then swung back into it only 18 feet further on. It did the same thing again and again striking the bank 39 feet further on, then 15 feet further on, then 67 feet further on, then 20 feet further on, and again 32 feet further on when it overturned. At no time during this distance of approximately 243 feet did the vehicle return to the middle or its left of the road to justify the description that it was swerving about. In our opinion the course of the vehicle involving these repeated turns into the bank are not inconsistent with faulty steering; or the least that may be said is that the behaviour of the vehicle is consistent with a faulty steering equally as it is with

dangerous driving or the driving by a person who through the influence of alcohol has no control over his vehicle. However, learned counsel for the Crown argued that even if the steering became defective, a defence based on such a mechanical defect could succeed only if it was the only possible cause of the accident, in other words, that if the evidence were such as to indicate that the accident could have been caused by dangerous driving the existence of the mechanical defect would be of no assistance to the driver. This contention seems to us to go right against the principle that a charge must be proved beyond reasonable doubt. However, counsel relied on the case of R. v. Spurge (2), [1961] 3 W.L.R. 23, where at p. 25 Salmon, J., who delivered the judgment of the Court of Criminal Appeal, said: “If, on a prosecution under s. 11 (1) . . . [dangerous driving] . . . the Crown proves that a motorvehicle driven by an accused in fact endangers the public, that is strong evidence and, indeed, in any but the most exceptional circumstances, is likely to be regarded by the jury as conclusive evidence that the accused was driving in a manner dangerous to the public. If, however, a motorcar endangers the public solely by reason of some sudden overwhelming misfortune suffered by the man at the wheel for which he is no way to blame – if, for example, he suddenly has an epileptic fit or passes into a coma, or is attacked by a swarm of bees or stunned by a blow on the head from a stone, then he is not guilty of driving in a manner dangerous to the public: Hill v. Baxter. It would be otherwise if he had felt an illness coming on but had still continued to drive, for that would have been a manifestly dangerous thing to do. It is true that in the examples given above it may be said that in a sense the man at the wheel was not driving at all, and therefore not driving dangerously. Indeed, that was the view expressed by the Divisional court in Hill v. Baxter, a view with which this court entirely concurs. But it is also true that the sudden mischance suffered by the man at the wheel totally prevented him from controlling the movements of the motor-car, and that no fault Page 177 of [1963] 1 EA 172 (SCK) of his in any way contributed to the danger. On that ground also, it seems to this court that even if the man at the wheel could in any sense be said to be driving, he would not be guilty of driving in a manner dangerous to the public. There does not seem to this court to be any real distinction between a man being suddenly deprived of all control of a motor-car by some sudden affliction of his person and being so deprived by some defect suddenly manifesting itself in the motor-car. In both cases the motor-car is suddenly out of control of its driver through no fault of his. Supposing a man is driving a motor-car at a slow speed close to his near side of wide road, keeping a proper lookout and exercising all due care and skill, he is clearly driving in a safe manner. He turns the steering wheel to negotiate a gentle bend, but owing to a mechanical defect in the steering mechanism of which he has and could have no knowledge, the steering suddenly fails completely and the wheel turns helplessly in his hands so that the motor-car careers across the road into an oncoming vehicle. In these circumstances clearly the motor-car endangers the safety of the member of the public driving the oncoming vehicle. Nevertheless, it could not truly be said that this danger was created by the manner of the driving of the motor-car which had gone out of control. There would be nothing in the driving which created the danger. It is quite true that if the motor-car had not been driven on the road, no danger to the public would have occurred. It is equally true that if the oncoming vehicle had not been on the road and no member of the public had been in the vicinity, there would have been no danger to the public. The driving of neither vehicle, however, would be the cause, but the driving of each would be the occasion, of the danger. As Lord Goddard, C.J., said in Simpson v. Peat: ‘It is by no means impossible, and

indeed must on occasions happen, that a situation of danger arises in which a motorist is involved but it cannot be said that he caused it by driving dangerously . . . Whether the charge is under s. 11 or s. 12, the offence can be committed although no accident takes place; equally because an accident does occur it does not follow that a particular person has driven either dangerously or without due care and attention: but if he has, it matters not why he did so. Suppose a driver is confronted with a sudden emergency through no fault of his own; in an endeavour to avert a collision he swerves to his right – it is shown that had he swerved to the left the accident would not have happened; that is being wise after the event and, if the driver was in fact exercising the degree of care and attention which a reasonably prudent driver would exercise, he ought not to be convicted, even though another and perhaps more highly skilled driver would have acted differently’.” The learned judge then added these words: “This court desires to emphasise that cases in which a mechanical defect can successfully be relied upon as a defence to a charge of dangerous driving must be rare indeed. This defence has no application where the defect is known to the driver or should have been discovered by him had he exercised reasonable prudence. To drive a motor-car in such circumstances is manifestly dangerous. The essence of the defence is that the danger has been created by a sudden total loss of control in no way due to any fault on the part of the driver.” We do not think that that case supports the contention for the Crown. Each case, of course, depends for decision upon its own facts and circumstances, but in our opinion the decision turns solely on the question: “Was the sudden total loss of control in no way due to any fault on the part of the driver.” Page 178 of [1963] 1 EA 172 (SCK) The fact that a person may be under the influence of drink and may not thereby be capable of having proper control of his vehicle is a factor by itself, and if no other factor intervenes may clearly be the cause of his driving dangerously. But if another factor intervenes, such as a mechanical defect of which the driver had no knowledge or no reason to suspect its presence or likelihood, then the question must inevitably arise as to whether even if he had not been under the influence of drink he could have so controlled the vehicle as to avoid driving dangerously. In such circumstances the onus is upon the Crown to establish affirmatively and beyond reasonable doubt that the person’s dangerous driving was due to a cause which was within his control. The question of whether the onus in such circumstances ever shifts to an accused person was considered in R. v. Spurge (2). At pp. 27 – 28 of the report there appears this passage: “It has been argued by counsel for the Crown that even if a mechanical defect can operate as a defence, yet the onus of establishing this defence is upon the accused. It is of course conceded by the Crown that this onus is discharged if the defence is made out on a balance of probabilities. In the opinion of this court, the contention made on behalf of the Crown is unsound, for in cases of dangerous driving the onus never shifts to the defence. This does not mean that if the Crown proves that a motor-car driven by the accused has endangered the public, the accused could successfully submit at the end of the case for the prosecution that he had no case to answer on the ground that the Crown had not negatived the defence of mechanical defect. The court will consider no such special defence unless and until it is put forward by the accused. Once, however, it has been put forward it must be considered with the rest of the evidence in the case. If the accused’s explanation leaves a real doubt in the mind of the jury, then the accused is entitled to be acquitted. If the jury rejects the accused’s explanation, the jury should convict. It has been suggested by counsel for the Crown that the onus of establishing any defence based on

mechanical defect must be upon the accused because necessarily the facts relating to it are peculiarly within his own knowledge. The facts, however, relating to a defence of provocation or self-defence to a charge of murder are often peculiarly within the knowledge of the accused since often the only persons present at the time of the killing are the accused and the deceased. Yet once there is any evidence to support these defences, the onus of disproving them undoubtedly rests upon the prosecution: Wollmington v. Director of Public Prosecutions. There is no rule of law that where the facts are peculiarly within the knowledge of the accused, the burden of establishing any defence based on these facts shifts to the accused. No doubt there are a number of statutes where the onus of establishing a statutory defence is placed on the accused because the facts relating to it are peculiarly within his knowledge. But we are not here considering any statutory defence. It is most important that the summing-up should contain a careful direction as to the onus of proof. It is equally important that the jury should be clearly told the narrow limits, laid down in this judgment, within which a defence based on sudden mechanical defect can operate.” In the case before us the facts undoubtedly disclose that there was a mechanical defect. They also disclose that the appellant was under the influence of drink to such an extent as not to be capable of proper control of his vehicle. They also disclose that the passengers became anxious by reason of the erratic movement of the vehicle. The prosecution, however, did not prove that this erratic movement was due to a cause or causes other than the mechanical defect, in other words, that the appellant was driving dangerously irrespective of the defect and that the death of his passenger was not caused by that defect but was caused by reason of dangerous driving. Page 179 of [1963] 1 EA 172 (SCK) For these reasons we are of the opinion that the conviction of the appellant on the first count on the evidence that was adduced was wrong. His conviction and sentence on that count are accordingly set aside. There was no appeal against the convictions and sentences on the second and third counts and they are maintained. Appeal allowed. Conviction and sentence on the first count set aside. For the appellant: NJ Desai NJ Desai, Nairobi For the respondent: F Mallon (Crown Counsel, Kenya) The Attorney-General, Kenya

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.

PRESUMPTIONS Proof of life or death 113. When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it. .................................... 114.

Notwithstanding the provisions of s.113 of this Act, when the question is

whether a man is alive or dead, and it is proved that he has not been heard of for

seven

years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is on the person who affirms it. ....................................... These two sections, and s.115, are based upon the presumption that things once proved to have existed in a particular state are to be understood as continuing in that state until the contrary is established by evidence, either direct or circumstantial. SARKAR, p. 929. Section 114 is, in effect a proviso to s.113. SARKAR says on p.929:“In view of the above presumption of continuance of life, it was thought necessary to provide for the counter-presumption where a person’s death would seem more likely from the nature of circumstances of the case than the continuance of life. so it has been ruled that where a person is continually absent from home for a period of seven years,

unheard of by persons (if any) who would have naturally received intelligence from him, he is presumed to be dead, and the burden of proving that he is alive is shifted to the person who affirms that he is not dead. It is a rebuttable presumption ..... S.108 does not require that the court should hold the person dead at the expiration of the seven years therein indicated, but merely provides that the burden of proving that he is alive at the time of the suit is shifted to the person who affirms it. S.108 is an exception to s.107. If a case comes within the four corners of s.108, it is taken out of s.107”. RATANLAL at p. 228 summarizes the sections as follows:“......if it appears that a person, whose present existence is in question, was alive within thirty years, and nothing whatever appears to suggest the probability of his being dead, the Court is bound to regard the fact of his still being alive as proved. But as soon as anything appears which suggests the

probability

of

his

being

dead,

the

presumption disappears, and the question

has to be determined on the balances of

proof.If a person has not been heard of for seven years, there is a presumption of law that he is dead, and the burden of proving that he is alive is shifted to the other side. But at what time within that time is not a matter of presumption, but of evidence, and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of what fact is essential.

The

presumption that he died at the end of the first seven years, or at any particular date or at any subsequent period. When a person absconds from justice in order to evade trial on a charge of murder, the presumption in s.114 does not apply, as he would naturally not communicate with his relations. SARKAR p. 934, citing East Punjab v Bachan, A1957 Pu.316. It should be noted that s.171 P.C. dealing with bigamy provides that the section shall not extend “to any person who contracts a marriage during the life of a former husband or wife if such husband or wife, at the time of the subsequent marriage has been continually

absent from such person for the space of seven years, and has not been heard of by such person as being alive within that time. A problem also arises as to who would be placed in the category of “those who would naturally have heard of him if he had been alive”; does this extend beyond immediate family, and if so to whom? The section has been severly criticised by SARKAR (p.930) on the grounds that the period appears to be unduly long in view of the conditions of the present time relating to swift and easy means of communication and of inquiry. “If a person leaves by an aircraft which does not arrive at its destination long after it was due and there is no trace of it on account of a crash somewhere

on

a

mountain or into the sea, should not his death be presumed before the end of seven years because his body was not found?

Even if his life was spared by some fortuitous

circumstance, he could have communicated the fact to his relations or friends within a few days. In such and other special cases, the law should allow presumption of death before the lapse of seven years and courts should be invested with such a discretion”. It should be noted that the Report of the Commission on the Law of Marriage and Divorce, Recommendation No.86 proposes a change in the present law.

The

Recommendation reads:“We recommend that sections 113 and 114 of the Evidence Act and section 22(2) of the Matrimonial Causes Act be replaced by a single provision raising a rebuttable presumption of death where a person has not been

heard of for seven years by those

who might be expected to have heard from him if he were alive”. Paragraph 231 of the Report discussing the reasons for the Recommendation says:-

“Section 113 and 114 of the Evidence Act deal with the burden of proof

when

the

question arises whether a person is alive or dead. Section 113 provides ...... This is subject to section 114, which provides ..... There is also

a

presumption

under

the

Matrimonial Causes Act, (Cap.152,s22(2)) that a petitioner’s spouse is dead if he or she has been absent from the petitioner

for at least seven years and the petitioner has no reason

to believe that he or she has been alive within that time.

Apart from these specific

provisions, we have no doubt that the court would use its more general powers under the Evidence Act, to be satisfied by circumsntial evidence of death after a much shorter period, where there is evidence that points sufficiently strongly towards it, as, for example, where a ship has been lost at sea. (1) We think these provisions are unnecessarily comples and confusing, and although it might appear that a decree presuming death can be obtained more easily and matrimonial than in other proceedings, we think that in practice the court’s requirements would be the same. We think that section 119 of the Evidence Act sufficiently empowers the court to make a finding of death where it is satisfied that the evidence points sufficiently strongly towards it, andwe suggest that all that is required is a single provision raising a

rebuttable presumption of death where a person has not been

heard of for seven years”.

If the draft Law of Matrimony Act, 196 is, in fact, enacted as recommended in the Report, ss. 113 and 114 will be deleted (see Second Schedule), and the following will be inserted after s.118:Presumption 118c.

Where it is proved that a person has not been heard of for

of death seven years by those who might be expected to have heard if he were alive, there shall be a rebuttable (1)

of him

presumption that he is dead.

Note how the Commissioners felt that a court would use its general powers

under the Evidence Act and be satisfied by circumstantial evidence of death in circumstances which were criticized by SARKAR, p.55.

In the Estate of Harold Raymond Shuttleworth, Deceased, (1943), 20 K.L.R. (2) 37, the Court Held that on its being certified by the Air Ministry that the testator previously reported missing had beenofficially presumed dead and exhaustive enquiries concerning him having been made without result, the probate of his will was granted, the case having arisen during World War II. k.

Disproving apparent special relationship 115. When the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have been acting as such, the

burden of proving they do not stand, or have ceased to stand, to each other in those relationships respectively, is on the person who affirms it. .................................... The substantive law concerning agency, landlord and tenant, and partnership are beyond the scope of this work, however, they are directly affected by the Evidence Act in that those claiming either that they do not stand in these relationships, or have ceased to be so related have the burden of proving such; if this is proved, then the relevant substantive law is not applicable to the parties. Brief definitions of the terms are:Partnership - the relation which subsists between persons carrying on business in common with a view to profit, but excluding an incorporated company. The rights of the partners between themselves are covered by a partnership agreement. Landlord and tenant - the relationship depends upon contract and is created by the landlord allowing the tenant to occupy his premises or land for a consideration termed rent. Agent - a person employed to not on behalf of another. The act of an agent, done within the scope of his authority, binds the principal who has employed the agent.

As in the case of ss.113 and 114, this section deals with a presumption of continuance. Once this legal relationship has been established by proof, the law presumes that the relationship continues as before, and until the contrary is proved. i.e. untilthe relationship has been shown to have ceased to exist. Examples:A and B are partners. As regards third person, the act of each partner binds his copartner within the ordinary scope of business whether the partner authorised the act or not. A and B become partners in 1956 in a small shop selling fabrics of all kinds. Generally the shop handled only the inexpensive types of fabric such as cotton. In 1966 B orders 1000 yards of expensive silks from C, an importer. The bill is not paid and C sues A and B as partners for his money due to owing. A alleges in defence that the partnership was dissolved in 1965 so that B has no authority to bind him and he is not liable for the debt. The burden of proving that A and B have ceased to stand in the relationship of partners is on A, the person who affirms this fact. A rents a house to B under a written lease which provides that the lease may be terminated providing that B fails to maintain the promises in good condition with A obligated to give one month’s written notice of termination to B. B fails to maintain the promise in good condition and A terminates the lease. B fails to leave the promises and A sues for eviction. The burden of proving that A and B no longer stands in the relationship of landlord and tenant because the lease was properly terminated is on A, the person who affirms the fact. A is a manufacturer of sewing machines and hires B as an agent for a particular purpose, to sell his machines in Kenya. B, an exceptionally good salesman, is successful, and attracts the attention of C, also a sweing machine manufacturer, who hires B to handle his line of machine. A files suit against B and C alleging that B’s contract contains a clause that he would not sell produce similar to A’s during his term of employment. B and C enter

the defence that the contract has expired. The burden of proving that A and B have ceased to stand in the relationship of principal and agent is on B and C, the persons wh affirm it. In Ali Mahdi v Abdulla Mohamed, [1961] E.A. 83 (T) the respondent claimed Workman’s Compensation and alleged that the appellant was his employer. One main issue was whether the respondent was an employee or a partner of the appellant. The respondent gave evidence that a former partnership had been dissolved, and the appellant gave no evidence at all.

The Court held thaton the evidence available to the trial

Magistrate it was open to him to find that the respondent was an employee and not a partner of the appellant. Thus the burden lying on the respondent had been discharged; no reference was made to the I.E..... 1.

Disproving Ownership 116. When the question is whether any person is owner of anything of which he is

shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. ...................................... Ownership is the right to the exclusive enjoyment of a thing, and denotes the relation between a person and any right that is ousted in him. Absolute ownership involves the right of free as well as exclusive enjoyment, including the right of using, altering disporing of or destroying the thing owned. The term “possession” in this section denotes actual present possession. The principle of the section does not apply where the possession has been obtained by form of fraud. Therefore the section is not applicable in the case of a charge under s.323 P.C. of having in possession or conveying anything which may reasonably be suspected of having been stolen or unlawfully obtained. See discussion of possession cases under the subject of presumptions.

Possession is prima facie evidence of title; i.e. ownership and when possession is proved the burden shifts to the person who wishes to disprove ownership. m.

Proof of good faith 117. Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.

................................................ In certain influences, two parties may stand in such a relationship to each other that the confidence which one person has in the other puts the latter in a position to exercise an influence which may be perfectly natural and proper in itself, but capable of being used unfairly. This is a position of “active confidence”, andy may be an informed .... confidential relationship where the other party res... complete trust in the other, of a formal “fiduciary relationship” where one person is legally bound to exercise rights and powers in good faith for the benefit of the latter for example, as between trustee and beneficiary, the proven for there benefit who trust was established. The law will not allow persons in a judiciary position, unless expressly so entitled to make a personal profit or put himself in a position where his duty to be beneficiary and his personal interests conflict. In these cases the one proving is bound to act in such a way as to protect the interests of the other, and persons standing in this confidential relationship cannot keep benefits which the others have conferred upon them unless they can show to the satisfaction of the court that the person who gave the benefits had competent and inlepenlet advice before giving them. Many transactions between these persons would not be suspect if not such confidential relationship had existed.

Certain instances where the person the person in whom the active confidence has been has been placed has benefitted from the relationship are automatically subjected to close scrutiny:Parars (or guardian) and child For example, in Ott......[1965] E.A. 464 (K), S, the third defendant, signed a guarantee in favour of the plaintiff bank as further security for advances made by the bank to a firm of merchangs of which F (S’s father) and M (S’s mother) were the propertors. S lived and worked with F and M, was entirely dependent on them, and although of age, was found by the judge to be subject to F’s authority and immature. S had no property of his own and had no independent advise before signing. S denied liability sued by the bank on his guarantee claiming that he signed it the undue influence of f. The Court held that on the evidence he signed the guarantee under the influence of his father and defence of undue influence succeeded. See also : Patel v Thakore, E.A. 629 (C.A). Practitioner and client, medical practitioner and patient, trustee and beneficiary, spiritual advisor and any person to whom he stands in that relationship, and fiance and fiancee are other such relationship to which the rules apply. (Note that husband and wife is not one of the situations to which the presumption applies). ANSON’S LAW OF CONTRACT (21st Edn.), p.232 to sea., SARKAR, p. 956 ot seq., RATANLAL, p. 233 et seq. Once it has been shown that the paties stood in one of these special relationship involving active confidence, the burden of proving the good faith of the transaction in question is upon the person who was in the position of effective confidence, s.s. the parent, solicitor, etc. I.

Conclusive proof of legitimacy 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 after its dissolution, the mother remaining unmarried, shall be be

conclusive proof that he is the legitimate son of that man, unless it can shown that the partners the marriage had no access to each other at any time when he could have been begotten.

............................................. Once a marriage relationship is shown to have existed, it is prima facie proved to continue to exist. 1.

Child born during marriage

When a child is born during marriage, he is the legitimate son of the husband unless it can be shown that the husband and wife had an opportunity to engage in sexual intercourse at any time when the child could have been conceived. Evidence that the child was born during the continuance of the valid marriage is sufficient to establish legitimacy, and the burden of proof shifts to the person who wishes to establish that the child is not legitimate. Examples:A and B are single persons, living in the same village. They see each other daily and decide to get married. Three months after the marriage a child C, is born. Since C was born during the continuance of a valid marriage between A and B, this is conclusive proof that C is the legitimate son of A, for since A and B lived in the same village, it could not be shown that there was no opportunity for them to engage in intercourse during any period in which C could have been conceived. “Whenever a child is born in lawful wedlock, there is a conclusive presumption of legitimacy, unless it is proved to be very reliable evidence (e.g.. divorce, long and continued separation, illness rendering sexual

intercourse impossible, etc.) that the parties had not or could not have any access.” SARKAR, p.964. As to the example above, SARKAR on p.965 cites the case of Thandi v Jagannath, A1937, L. 784 wherein a child born on the 17th August, 1920 to D, a woman who was married to L on the 7th April, 1920, was legitimate as the presumption is quite irrespective of the fact whether the mother was married or not at the time of conception. 2. “ Had no access to each other”. Example:A and B are single persons living in the same village. They decide to get married, and A leaves for a 9 months course in the U.K. After his return A and B are married. Five months later a child, C, is born. The fact that C was born during the continuance of a valid marriage between A and B is not conclusive proof of legitimacy in that the parties to the marriage had no access to each other at any time when C could have been begotten. ‘Access’ and ‘non-access’ mean presence or absence of opportunity for sexual intercourse. Existence of opportunist for sexual intercourse is not merely physical presence at the requisite time, but must be taken in the sexual sense. Thus not only absence, but physical impotency, malformation, illness, etc. may result in non-access. What has to be proved is the husband’s non-access, and not proof that he wife had intercourse with other men besides her husband. access is a question of fact, may be proved by both positive or direct evidence or circumstantial evidence, and evidence that although opportunity existed, nonetheless there was no sexual intercourse ad therefore the child is not that of he husband must be very strong. See discussion, SARKAR, pp. 966-967. 3. Within two hundred and eighty days, etc.

If a child is born after 280 days have elapsed since the dissolution of the marriage, the presumption of legitimacy disappears, and the question is decided merely on the evidence for or against legitimacy. Example A is born 260 days after the death of his “father” in an automobile accident. This is conclusive proof that he is the son of that man unless it can be shown that the parties to the marriage had no access to each other during the period before the father’s death when he could have been begotten. A is born 281 days after the death of his “father” in an automobile accident. No presumption in favour of A’s legitimacy is raised, and the question as to whether he is legitimate of illegitimate is decided simply on the evidence for or against legitimacy. The controlling point is the time of the birth of the child, not the time of conception. Thus:A commits adultery with W, who is then divorced by H. C, the child, is born during the marriage of A and W, who married after the divorce form H. C is the legitimate son of A since he had access to W, and C was born during he continuance of the valid marriage between A and W. Same facts, but A does not marry W after the divorce. C is born within 280 days after the divorce. C is the legitimate son of H unless it can be proved that he had no access to W at any time that C could have been begotten. 4 Commission Recommendations. The Report of the Commission on the Law of marriage and Divorce

says in

paragraph 230:“..................... Since that Act ( the I.E.A.) was passed, considerable scientific progress has been made and t is now possible in some cases to

prove by blood tests that the husband of a woman could not have been the father of her child. (Citing Re L.. [1967] 2 All E.R. 11110; [1968] 1 All E.R. 20; F.v.f., [1968] 1 All E.R. 242.) In these circumstances, we think the ADDENDUM TO S. 118 Seif bin Ali Bauni and Others v. Hamed bin Ali El Bajune. (1945), 7 A.L.R. 137 involved a situation where a child was born 10 months after the alleged father divorced the mother. The “ father” had prepared the following document:“ Ali bin Makame bin Ali declares I married Msyasa Binti Hamadi. I lived with her and then I divorced her. She observed Iddat for three months and then I took her to her parents and told her ‘You are no more my wife and you have not to observe Iddat. She stayed at home for a period 1320, and this child was no born until 15 Safar 1325 (March 30, 1907). Then hte child was born. Therefore if this child shall ever file a suit, the Hakim should consider whether a child born after three (six) years can be one’s child. The hakim should consider this. Written by Ali bin Makame with his own hand, 15th Safa, year 1325.” The child later filed a claim as heir and the material issue was whether the child was born 10 months or 5 years after the divorce. After holding that the document was properly rejected as evidence under s.32(5) Evidence Decree (s.33(c) K.E.A. equivalent), the Court discussed the relationship of ss. 112 and 114 Evidence Decree (s. 118 and 119 K.E.A.) at pp. 135-6. “The relevant section of the Evidence Decree is, in my opinion, section 114. Section 112, which refers to what may be termed ‘the 280 days rule’, merely enacts that if a child is born within 280 days after the dissolution of the marriage, the mother remaining unmarried, and

there being no evidence of non-acess on the part of the husband, that fact shall be ‘conclusive proof’ that he is the legitimate son of the husband. As section 4 of hte Decree shows in cases of ‘conclusive proof’ the court ‘shall not allow evidence to be given for the purpose of disproving it’. But, in the words of the Decree, ‘the court may presume’ legitimacy in other cases than those mentioned in section 112. Those cases come within the orbit of section 114, which enacts that ‘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.... in their relation to the facts of a particular case.” The Court then discussed the cases of Gaskill -v- Gaskill, (1921), P. 425 and Bowden -vBowden, (1917),, 62 Sol. J. 105 involving periods of gestation, and continued:“In this case, there is no evidence to suggest misconduct on the part of the plaintiff’s mother despite the fact that ten months elapsed between her divorce and the birth of her child.

As said by Lord

Lyndhurst in Morris v. Davies, (1837( 4 C.. & F. 265, the presumption in favour of legitimacy is a strong one and one which ‘is not lightly to be repelled.

It is not to be broken in upon by a mere balance of

probability; the evidence for the purpose of repelling it must be strong, distinct, satisfactory and conclusive. Here, the period of pregnancy may have been unusual, but in the present state of medical knowledge it cannot be said to have been impossible. In the absence of any evidence containing the slightest suggestion of adultery on hte part of the mother, I am satisfied that the evidence proves that the plaintiff is the legitimate son of Ali in makame.”

Note how the court, since the child was born more than 280 days after the dissolution of the marriage, decided the case on the available evidence to which the presumption in S. 119 applied, since the presumption of legitimacy under s.118 disappeared after 280 days had elapsed. Presumption of legitimacy should be a rebuttable one.” If the Recommendation (No. 85 is followed and the Law of Matrimony Act, 196 enacted, s.118 will be amended. (see Second Schedule to the proposed Act) to read: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 after its dissolution, the mother remaining unmarried, shall raise a rebuttable presumption that he is the legitimate son of that man. The Report also recommends two additional sections:Presumption of validity of registered marriage. 118A. The fact that a marriage has been registered under the Law of matrimony Act, 196- or any written law previously in force providing for the registration of marriages shall raise a rebuttable presumption that such marriage was valid. Presumption of marriage. 118B. Where it is proved that a man and a woman have lived together for one year upwards, in such circumstances as to have acquired hte reputation of being husband and wife, there shall be a reputable presumption that they were duly married: Provided that no such presumption shall be drawn in any criminal proceedings for bigamy, adultery or enticement or in any civil

proceedings for damages for adultery or enticement or in any matrimonial proceedings.

C. Presumptions. many facts are presumed to be true until the contrary is proved. OSBORN, THE CONCISE l..w DICTIONARY, DEFENCES “presumption” as follows:“presumption. A conclusion or inference as to the truth of some fact in question, drawn form other facts proved or admitted to be true. Presumptions are of three kinds.

Irrebuttable or conclusive

presumptions.... are absolute inferences established by law; evidence is not admissible to contradict them......... Irrebuttable presumptions are more properly called rules of law. Rebuttable presumptions of law..... are inferences which the law requires to be drawn from given facts, and which are conclusive until disproved by evidence to the contrary; e.g. the presumption of the innocence of an accused person which makes it necessary for the prosecutor to begin in a criminal trial. Presumptions of fact... are inferences which may be drawn from the facts, but not compulsorily.” Section 4K.E.A. under the heading “presumptions of fact” deals with these presumptions in slightly different terms, but hte legal result is the same. 4.

(1) whenever it is provided by law that the court may presume a fact, it may either

regard such fact as proved, unless or until it is disproved, or may call for proof of it.

(2) wherever it is directed by law that the court shall presume a fact, it shall regard such fact as proved, unless or 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. ..........’ The words “by law” in o.4 makes the section applicable not only to those instances in the Act where sections include reference to presumptions, but to those instances where provisions for or directions as to presumptions are contained in any other Act in force in Kenya. Note the difference between the words. “may” as used in subs. (1) and “shall” as used in subs. (2) and (3). Use of the word “may” given the court discretion either to do or not do something, whereas “shall” is a mandatory direction and the court has no option but to do what is directed to do. Subs.(2) deals with rebuttable presumptions of law, inferences which the law requires to be drawn form a given fact and which are conclusive until disproved by evidence to the contrary.

in addition to the presumption of innocence, other examples of rebuttable

presumptions are s.14(2) P.C.:A person under the age of twelve years in not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission. and s.11 P.C.:Subs. (1) deals with irrebuttable presumptions of law, for example s.14(1) P.C.:A person under the age of eight years in not criminally responsible for any act or omission.

Subs. (1) deals with rebuttable presumptions of fact, as does .s. 119 K.E.A., which reads: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. ................... Under S..109 (proof of a particular fact) and s.118 (conclusive proof of legitimacy), no option is given to the court as to whether it will presume a fact or not. Where there is a specific direction given in the act that a burden of proof will lie on a particular person, the court is bound in every case to presume against that person. s. 119, however, deals with rebuttable presumptions of fact, dependent upon hte common course of natural events, human conduct and public and private business in their relation to the facts of a particular case, but under s.4, the court may call for proof of the fact or my regard it as proved unless or until it is disproved. (subs. (1). Consequently, what may be presumed in one case need not be presumed in a case with almost similar facts; the option is with the court. The terms of s.119, therefore , are such as to take a number of presumptions in English law and reduce them to the status of maxims which hte court may then apply or not. The illustrations. to s.114 I.E.A., nine in number, are some of the more important of these maxims, and have been referred to by the course on numerous occasions. ------------------the Court may presume(a) that a man who is in possession of stolen goods on after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.

The relevant penal code sections are sec. 322 and 323:322.

(1) An person who receives or retains any chattel,.... or other property

whatsoever, knowing or having reason to believe the same to have been feloniously stolen, taken, extorted, obtained or disposed of, is guilty of a felony.... (2) Any person who... knowing or having reason to believe the same to have been unlawfully taken, obtained, converted or disposed of in a manner which constitutes a misdemeanour, is guilty of a misdemeanour... (3) Any person who assists in concealing or disposing of or making away with any property which he knows or has reason to believe to have been stolen or obtained in any way whatsoever under circumstances which amount to felony or misdemeanour is guilty... (4) No person shall be convicted of an offence under this section unless it is first proved that the property which is the subject-matter of the charge has in fact been stolen, or feloniously or unlawfully taken, extorted, obtained, converted or disposed of. 323. Any person who has been detained as a result of the exercise of the powers conferred by section 26 of the Criminal Procedure Code and is charged with having in his possession or conveying in any manner anything which may reasonably be suspected of having been stolen or unlawfully obtained, and who does not give an account to the satisfaction of the court of how he came by the same, is guilty of a misdemeanour. Owing to the different requirements concerning proof of guilty under the sections, application of the presumption and the burden of proof in each instance will be discussed separately. 1. Receiving.

S.322(4) sets forth the condition precedent to conviction that it must be proved that the property which is the subject matter of the charge must be proved to have been stolen, etc. COLLINGWOOD note., on p.268:“ On a charge of receiving stolen property, the prosecution must prove (I) a theft or obtaining in by some other felony, (ii) the receipt of the stolen property by the accused (who is not the thief or a party to the theft), and (iii) the accused’s guilty knowledge at the time of receipt.

On a charge of

retaining stolen property, the same elements must be proved, except that the guilty knowledge may exist after the receipt”. Thus the burden of proof remains upon hte prosecution throughout and does not shift. Mzalia bin Luziro v. R., (1944), 7 Z.L.R. 9 shows is its holding how this burden affects the application of the resumption:“Hold: that in a charge of receiving stolen property, as in a charge of any other offence, the burden of proving every fat which is essential to constitute the offence is upon the prosecution and it is incumbent upon them to prove each one of the facts beyond all reasonable doubt. ... that when an accused person is found in possession of property recently stolen and offers an explanation as to how he came by it, it is for the prosecution to prove either that the explanation is not true, or that, even if it is true, it is inconsistent with innocence or that it affords no defence to the charge.” (emphasis added). See also Semanda v. R., (1955), 7 U.L.R. 162, and Circular to Magistrates NO.20 of 1947 (1947), 22 K.L.R. (2) 135, which said:“... On many occasions in this Court and in the English decisions it has been pointed out that on a charge of receiving the enus always remains on the prosecution, and that it is only in the absence of an explanation by an accused person of the way in which the goods came into his possession which may reasonably be true that it is safe to convict.

Where an explanation is tendered which is not demonstrably false the effect must be that the prosecution has in fact failed to establish the guilt of the accused person beyond reasonable doubt.” See also: G.E. Komorowski v.R., (1948), 1 T.L.R. (R) 322. (a) Scope and limitation of the presumption “It is not the law that proof of possession of recently stolen articles will necessarily or in every case justify an inference of guilty; what constitutes ‘recent possession’ depends upon the nature of the property and the circumstances of the particular case...” Jagat Singh v- R., (1953), 20 E.A.C.A 283, 286. This case is indicates the direction which the court should give to itself, and is quoted in Abdullah Ibrahim v. R. [1960] . E.A. 43, 45 (T) As the time between the theft and the evidence that the stolen articles are in the possession of the accused lengthens, the presumption becomes weaker. In Shabani s/o Juma V. R., (1953), 20 E.A.C.A. 199, two months after the theft the accused was found wearing some of the stolen articles, and was found not guilty of entering and stealing, but guilty of receiving stolen goods. The Court of Appeal in dismissing the appeal said: “Even in the case of receiving, we think an interval of two months in the case of articles such as those raised not too strong a presumption against the appellant.” and in Abullah Ibrahim’s case, supra it was held that possession of an article of common use such as a tyre pump seven months after a burglary could not raise the presumption that the appellant was guilty of burglary and stealing. In its decision the Court quoted form KENNEY’S OUTLINES OF CRIMINAL LAW (15th Edn.), p.392:-

“As to what time is near enough to be recent, no general rule can be given for the period within which the presumption can operate will vary according to

the nature of the article stolen. Three months has been held sufficiently recent for a motor car, and four months for a debenture bond. But for such articles as pass from hand to hand readily, two months would be a long time.”* Illustrative of the circumstances which may raise or not raise an inference of receiving with guilty knowledge are R.V. Rajabali s/o (a) Ibrahim, (1942), 20 K.L.R. (1) where the accused was found in possession of a motor car tyre a few days after the theft, where the inference was drawn, and Panachal v.r., (1941), 19 k.l.r. (2) 84 where the inference was not drawn when the accused was found in possession of a ring stolen fifteen months earlier. See also Idi s/o Waziri v.r, [1967] E.A.. 146 (T), and Njoroge v.R.,[1963] E.A. 624 (T) See also: Yege s/o Kitam v.R., (1937), 4 E.A.C.A. 25, 26. (b) 20 K.R=L.R. (1) 70. It has been stated in this connection that:“In the notes to (S.114 I.E.A, illus. (a) it is pointed out that ‘the mere fact of recent possession of stolen property is in general evidence of theft, not of receipt of stolen goods with guilty knowledge.’ I may say that the English law of evidence is identical with the provisions of the Indian Evidence Act on this point. It appears to me to be only in accordance with common sense that recent possession of stolen property will give rise to a presumption of theft much more readily than to one of receiving stolen property knowing it to have been stolen.” Francis Barrallen V. R:- (1920) , 8 E.A.L.R. 119, 120. Certain problems which arise when it is sought to prove crimes other than receiving are covered in para.(3) on p.67, infra. 2. Person suspected of having or conveying stolen property. (a) the presumption does not apply. Although cases involving s.323 P.C. are, at first sight, similar to those involving receiving, the presumption in illus. (a) does not apply, for here the goods nee not be proved

to have been stolen, but need only “be reasonably suspected of having been stolen or unlawfully obtained.” (b) Conditions precedent to a finding of guilty. COLLINGWOOD at pp. 276-277 summarises the findings which a magistrate must make under s.323 or its equivalents which were set forth in the case of Kiende Hamise v.R. [1963] E.A. 209 (T); there must, of course be evidence led by the prosecution which establishes each of these points: 1. that the accused was, in fact, detained in the exercise of powers conferred by the relevant section of the C.P.C.; 2. that at the time when he was detained, the accused was in the course of a journey, whether or not in a street, or on private land or in a building; 3. that at the time when he was so detained, the accused had in his possession, i.e. with him, a particular thing; 4. that the thing was of such a nature, or the circumstances were such, that it might reasonably be suspected of having been stolen or unlawfully obtained; and 5. that he accused had refused to give an account to hte court of how he came by the thing, or gave an account which was so improbable as to be unreasonable, or gave an account which was rebutted by the prosecution. (c) the burden of proof In the absence of proof by the prosecution that the article in question is the property of someone else, a reasonable explanation as to how he came into the possession of the item is sufficient grounds for discharging the accused. This is different. form requiring the accused to establish that the item belongs to him, i.e. placing an onus upon the accused that he owns the item, which was held in Tenywa v. Uganda [1967] E.A. 102 (U) to have been a misdirection as to the law. Ismail Abdulrchman v.r., (1953), 20 E.A.C.A. 246 considered the shifting of the onus to the accused in a case involving the (then) s.319 P.C. where similar language had been

incorporated into the section dealing with unlawful possession of Government stores. After setting forth (p.248) the elements of the offence, the court said:“ If and when these ingredients have been established, then the onus shifts to the accused person of giving an account to the satisfaction of the Court as to now he came by the thing in question. It is important to keep in mind that it is only in connection with the nature or quality, whether innocent or criminal, of the accused’s possession that the onus shifts and that there is no shifting of the onus in respect of the fact of possession. It follows therefore that as regards that fact the general rule will apply, that is to say, that at the close of the case for the prosecution, there must be evidence of possession which, if unregutted, the Court is left with a reasonable doubt, the accused is entitled to b acquitted. A Fortiori if the Court is satisfied that he was in fact never in possession.” (emphasis added). As set forth in Kiendi Hamisi’s cse, the burden of proof resting on the accused once the onus has shifted to him to give an account of his possession to the satisfaction of the court is something less than satisfying the court on a balance of probabilities, citing R.V. CarrBriant, [1943] 2 ALL E.R. 156, R.V. Dunbar, [1957] 2 ALL E.R. 737, and R.V. Patters on, [1962] 2 q.b. 429. Thus the burden of proof in these cases is ht e same as those discussed in section h(2) of this Chapter, for here, as in the situation noted earlier, the burden has been placed on the accused by statute; see pp. 44-47 supra. See also Chebusit A’Kalia v- R., [1963] E.A. 448, 451 (K) where the court noted that cases under s.10(1) of the Stock and Produce Theft Ordinance were analagous to those under s.323 (then 324) P.C.. (d) Examples of similar provisions in other Act Other acts contain provisions similar of penal Code provisions relating to possession; e.g in Vithaldas Kayabhai Lodhia V.R., (1954), 2. T.L.R. ® 103 the Court dealt with a charge under s.8 of the Gold Trading Ordinance (Cap. 127) of Tanganyika, and held that the finding of a prohibited substance or item in the possession of a person raised a prima facie

case against him and the burden of proving that the possession was lawful

was then placed upon him. The Court also noted that a good defence to a charge of possession was to prove or raise a reasonable doubt that the accused did not know of the

presence of the prohibited substance. Similarly in Suleman Juma Mazrui v..r. (1951), 8 Z.L.R. 139 where the defendant was charged under hte dangerous Drugs Decree, s.9 of Zanzibar and claimed that the drug, bhang, was placed on him without his knowledge, the Court held that the burden of proving this by some evidence tending to show form the surrounding circumstances that the drug was on his person law on the accused

3. Proof of possession constituting proof of other crimes. The fact that an accused person is found in possession of recently stolen goods may be evidence o proof of crimes other than those constituting receiving or the theft of the goods. For example, R. V. Yego s/o Kitum, (1937) , 4 E.A.C.A. 25 where the possession by the accused soon after a murder, of property of the deceased was strong evidence that he stole the property, and with other circumstances of the case led to the irresistible conclusion that he also murdered the deceased. Yego’s case was applied in R. V. Ngunjiri s/ Mugi (1939). 6 E.A.C.A. 90 and considered in R. v. Salimu Sogere and Another, (1939), 6 E.A.C.A. 147. See also R.v. Maseu s/o Kitundu, (1948), 15 E.A.C.A. 129. Here possession is in the nature of circumstantial evidence pointing towards the guilt of the accused, and the Court of Appeal held in R.v. Bakari s/o Abdulla, (1949), 16 E.A.C.A. 84 if all the circumstances of a case point to other reasonable conclusion, the presumption can extend to any charge, however penal; the Court was here considering whether the trial judge was justified in extending the presumption to cover a charge of arson. The presumption, however, is less strong than that raised as to whether the possessor is the thief or a receiver, see

Abdullah Ibrahim v.R.

[1960] E.A. 43, 45 (K), quoting from OUTLINES OF

CRIMINAL LAW (15th Edn.), p.391 The problem which exits in extension of the presumption crimes other than the theft or receiving is the requirement that the theft itself must be proved beyond reasonable doubt. In Andrea Obonyo v.R. [1962] E.A. 542 (C.A) where the deceased had been found dead after a raid by a gang and there was no direct evidence identifying the accused except that the accused were all found in possession of articles stolen during the said, the Court, after considering the application of the presumption on the problem of whether hte accused

is a thief or receiver (see s.1(b) supra) citing Kantilal Jivraj’s case, D.P.P. v- Meiser AND R.V. hassani s/o Mohamed (see p.65), said:- (pp., 549-550) “But where it is sought to draw an inference that a person has committed another offence from the fact that he stole certain articles, the theft must be proved beyond reasonable doubt. If, in such a case, a finding that he stole the articles depends on the presumption arising form his recent possession of the stolen articles, such a finding would not be justified unless the possibility that he received the articles has been excluded. The inference that he stole the ordinary principles which must be followed when an inference of guilt depends on circumstantial evidence. This is a murder charge. As to the standard of proof required in criminal cases DENNING, L.J. (as he then was), had this to say in Bater -v- Bater, [1950] 2ALL E.R. 458 at p.459. “ it is true that by our law there is a higher standard of proof in criminal cases than in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees if proof within that standard. many great judges have said that, in proportion as the crime is enormous, so ought the proof to be clear.’ The result, then, is that if a person is found in possession of recently stolen articles and the presumption is applied that he is either hte thief or hte receiver, unless hte evidence is such so as to convince the court beyond reasonable doubt that he was not the receiver but the chief, the presumption cannot be extended to other offences.

It would also follow that

there must be a definite finding that the possessor was the thief before the presumption is extended. -------------------

The Court may presume(b) that an accomplice is unworthy of credit, unless he is corroborated in material particulars; That accomplices are competent witnesses is set forth is s.141:- 141. an accomplice shall be a competent witness against an accused person; and a conviction shall not be illegal because it proceeds upon the uncorroborated evidence of an accomplice. ----------------A. What is an accomplice? The leading decision, on which the Courts in East Africa rely, is Davies v- Director of Public Prosecution, [1954] A.C. 378, in the House of Lords, wherein the following authoritative definition of accomplice was given:“.............the following persons, if called as witnesses for the prosecution, have been treated as falling within the category: (1) on any view, persons who are participes criminis (participants in a crime) in respect of the actual crime charged, whether as principles or accessories before or after the fact (in felonies) or persons committing, procuring, aiding and abetting (in the case of misdemeanours). This is surely the natural and primary meaning of the term ‘accomplice. But in two cases, persons falling strictly outside the ambit of this category have, in particular decisions, have been held to accomplices for the purpose of the rule: viz. (2) Receivers have been held to be accomplices of the thieves from whom they receive goods on a trial of the latter for larceny. (3) When X has been charged with a specific offence on a particular occasion. and evidence is admissible, and has been admitted, of his having committed crimes of this identical type on other occasions, as proving system and intent and negativing accident; in such cases the court has held that in relation to such other similar offences, if evidence of them were given by parties to them, the evidence of such other parties should not be left to the

jury without a warning that it is dangerous to accept it without corroboration.” The above quotation was quoted in apart in M’Nduyo M,Kanyoro v- R., [1962] E.A. 110 (C.A.) at p.112, where the Court emphasized on p.113 that the Davies case now controlled hte definition of accomplice in Kenya. 1. Principles The definition of principal offenders is found in s.20 P.C., and includes:a.

every person who actually does the act or makes the omission which

constitutes the offence. b.

every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

c.

every person who aids or abets another person in committing the offence; and

d.

any person who counsels or procures any other person to commit the

offence. Therefore those categories in the Davies case of accessory before the fact and persons commiting, procuring, aiding or abetting in misdemeanours re principal offenders under the Kenya Penal Code. It Kamau v.R.’ [1965] E.A. 501, 504 (C.A.) it was said:“ it is not sufficient to constitute a person a principal in the second degree that he should tactly acquiesce in the crime, or that he should fail to endeavour to prevent the crime or to apprehend the offenders, but it is essential that there should be some participation in the act, either by actual assistance or by countenance or “ 2 Extent of participation or complicity in crime As will be seen, the determination as to whether a witness was an accomplice governs the rules concerning corroboration; therefore the problem arises as to how much complicity in the commission of a crime will suffice to brand one an accomplice. The present decisions would, for example, certainly be at variance with such cases as Kichingeri nd Others v.R.

(1908), 3 E.A.L.R. where it was held that certain Africans having publicly assisted in putting a suspected witch doctor to death according to tribal custom thinking they were concerned in a legal and meritorious action, their evidence was not tainted in the same manner as that of an ordinary accomplice in a crime As noted in hte quotation form Zuhari’s case, there is a distinction between................. in a crime, passively witnessing the ommision of an offence. In [1965] E.A. 501 (C.A) the accused was jointly charged and convicted with one N of murdering her husband, and the main evidence against her was that of their mother who testified that she saw the accused striking the deceased on hte back of hte neck with a panga. In holding that a passive attitude while a crime is being committed or following the commission of a crime will not ordinarily make a person a principal offender in the former case nor in accessary after the fact under s.396P.C, in the latter, the Court said at p.504. “It follows form whose authorities, in our view, that what a person who aids and sheets the commission of a crime or assists the guilty person who merely acquiesces in what is happening or who fails a report a crime is not normally an accomplice but that the weight to e given to such a person’s evidence will vary according to hte reason for hte acquiescience. If it was apparently based on approval of the crime, the evidence will be treated as no better than that of an accomplice; if it was based on indifference, the evidence will be treated with considerable caution; but if, for example, it was the result of fear, there is no reason why hte evidence should not be relied on.” The “lion man” cases for example R. v. Munduli s/o Chui and Others, (1948), E.A.C.A 47, and Sita v.R. [1957] E.A. 306 extent capable of classifying prosecution witnesses as accomplices without raising them to the status of principal offenders. In Munduli’s case the Court noted that both prosecution witnesses “ were privy to the crime and took some part in its preparation” (p.48), while in Sita’s case the evidence implicating one of the appellants was given by a witness who himself stood charged with consipirac to murder, and was therefore a principal. 3. Accessories after the fact.

The definition of accessory after the fact is found in hte Penal Code as follows:396. (1) A person who receives or assists another who is, to his knowledge, guilty of an offence, in order to enable him to escape punishment, is said to become an accessory after the fact to the offence. (2) A wife does not become an accessory after the fact to an offence of which her husband is guilty by receiving or assisting him in order to enable him,

to escape

punishment; or by receiving or assisting in her husband’s presence and by his authority another person who is guilty of an offence in the commission of which her husband has taken part in order to enable that other person to escape punishment; nor does a husband become an accessory after the fact to an offence of which his wife is guilty by receiving or assisting her in order to enable her to escape punishment. Prior to the Davies case the courts in East Africa did not acknowledge that accessories after the fact were necessarily accomplices; see, for example, R.v. Kinyangabwaru, (1942), 9 E.A.C.A. 90, followed in R.v. Nanta s/o Ndimi, (1944) , 11 E.A.C.A 119. R.v. Erunaani Sokoni s/o Eria and Another, (1947), 14 E.A.C.A. 74 in effect followed these decisions, which also held that they may be special circumstances in a particular case where the court should look for corroboration before acting on the evidence of such a witness; see editorial note. See also R.v. Ali Saleh, (1948), 23 K.L.R. (1) 40. In 1956, however, in hte case of Githae s/o Gathigi and Another v.R., (1956), 23, E.A.C.A. 440, 441 the Court of Appeal noted that the rule had been put beyond doubt by Davies, and that any previous decisions tot he contrary were no longer good law, reiterated in Boota Singh R. R., [1960] E.A. 638 (C.A.) (a) Compulsion. In certain types of cases the question arises as to whether a person forced to assist a principal offender becomes an accessory after the fact even though the assistance may be rendered only under complusion. This was the type of question presented in Gitahe’s case where the witnesses had assisted in carrying away a body under threat of death, however they were held to be accessories and the question of compulsion or motive was not examined. There are, however, a series of cases arising out of hte Emergency and the

illegal administering of oaths. The last in the line was M’Nduyo M’Kanyaoro v.R., [1962] E.A. 110 (C.A.) where the defendant stood charged with administering an unlawful oath and the witnesse were those who participated in the ceremony.

Neither witness had

reported the incident to the police and therefore could not rely on compulsion as a defence to the charge of taking an unlawful oath had they been charged, to the charge of taking an unlawful oath had they been charged, see s.63 P.C. If they had reported as required they would, upon being charged, have been entitled to a defence of compulsion. The magistrate did not treat the witnesses as accomplices. The Court of Appeal, supporting the earlier decisions in Bedan Mugo s/o Kimani v.R., (1951) , 18 E.A.C.A. 139 and R.v. Mukwate and Another,

Kenya Sup. Ct. Emergency Cr. case NO. 64/1955 (unreported), held that a

prosecution witness who had been compelled unwillingly to take an oath and is not in fact an accomplice, is not, when he is a witness in the prosecution of another person for the offence of administering that oath, to be treated as an accomplice; this even though were he to be charged with an offence, he would be statutory presumed (under hte then s.63A) to have consented to the administration of the oath, and the defence of compulsion would be curtailed under s.63 P.C.. Contrast this with the situation in Philip Muiga s/o Churia v.R., (1953), 26 K.L.R. 100 where the witness admitted he had taken an oath at a meeting but had not reported. There was nothing in this case to suggest that the oath had been taken under compulsion, and he was treated as an accomplice whose evidence required corroboration. (b) Motive The motive with which assistance is given may be a determining factor in a decision as to whether the assisted was an accessory after the fact. For example, in Gathitu s/o Kiondu v.R., (1956), 23 E.A.C.A. 526 two of the witnesses for the prosecution had assisted in burying a body and had not informed the police. The witnesses claimed they had acted from fear of the murders, who were Mau mau, and denied that they had any wish to help the murders. On appeal the Court held that the question whether assistance given to a murderer after the crime makes the assister an accessory after the fact depends not on intention, but on the motive with which the assistance is given,

and that the direction of

the trial judge that the witnesss “ were not assisting persons who were, to their knowledge,

guilty of an offence, to escape punishment” was correct i.e. the witness were not participates criminis within the meaning of the Davies case. as to motive; the Court said that “that was a matter of fact for the decision of the learned trial Judge.” It was similarly held in a “lion man” case, R.v. Duloo d/o Cidakungu and Another, (1947), 14 E.A.C.A. 132, that the failure of prosecution witnesses to report he plan of murder to the authorities did not constitute them accomplices as there was ample evidence that their silence was induced by fear. Motive is also relevant in determining whether a person who invites the commission of an offence is to be treated as an accomplice, i.e the “police spy” or “police trap” cases. The general rule was set forth in R.v. John Fernandez, (1917), 1 Z.L.R. 546, where it was held that a police agent who entraps a suspected person by inviting him to commit an offence which it is believed he is intending to commit is not an accomplice but a spy, if his purpose in obtaining the commission of hte offence is

simply to serve the public by

deceiving the suspect, and not to create an offence. His evidence, therefore, does not require corroboration This is if the witness (viz. police spy) has made himself an agent for the prosecution before associating with the wrongdoes, or before the actual perpetration of the offence, but he may be an accomplice if he extends no aid to the prosecution until after the offence is committed. See also R. v. Sirasi Kiboya an Ibuliamu, (1918), 3 U.L.R. 294. It is for the court to decide in each particular case what weight it will attach to evidence of this kind, the decision depending on hte character of the particular witness and the circumstances surrounding the setting of the trap; Baji Daya v.r., (1944), 1 T.L.R. ® 274. which also held: “ it is desirable in the nature of the case that the movements and actions of the decoy should be subject to control and surveillance by a responsible police officer for the purpose of checking and authenticating his activities.” he reason for the rule is, as was pointed out in Habib Kara Vesta and Another v.R., (1934), 1 E.A.C.A 191, 195, that the complicity extends only the...................an not to the mens rea The Court did also none that if the constigater of the offence is not employed by the public authorities and did not communicate with them until after the offence had

been

committed. This “may be ground for a cautious examination of his evidence”. As here

where one Lees, taking it upon himself he suppress the drug traffic in Mombasa induced the accused to supply a drug. Similarly in r.v. hasham Jiwa, (1949), 16 E.A.C.A. 90; one Njoroge attempted to purchase rationed foodstuffs without the require coupons. The defendant quoted prices which Njoroge thought to be too high. so he went to consult with the .C.’s clerk, who reported to the D.O, to make the purchase, and the defendant was then arrested for his “black market” operations. Njoroge gave evidence. and on appeal it was held that while there were grounds for saying that it was originally the intention of the witness to carry through the illegal transaction for his own profit, that intention completely disappeared when he hear the price at which hte defendant wished to sell the goods, and form that moment ceased to be accomplice and became a police spy before any offence had been committed by the defendant. Habib’s case and that of R.v. parentis, (1937), 1 T.L.R.(R) 208 were both discussed in R.v. Dalpatram Harishanker Mehta, (1946) the court examined the character of the witness, the nature and extent of his participation in the acts of the accused and the motive which induced him. and, acting that the evidence of a person who take part in a police trap stands on a higher plane then the ordinary accomplice, nonetheless said that the judge was entitled ot hold that the witness required corroboration, as in Parentis’ case,. See R.v. Katemi and another. (1910). 3 E.A.L.R. 79. 4 Other situations involving accomplices. Examination of the following cases will illustrate how the rules concerning accomplice evidence have been applied in different situations. Bhimji Nathoo v.r. 91941) , 19 K.L.R. (2) 90, where the accused was charged under a section of the Game Ordinance with having purchased two leopard skins without a permit, the court held that the sellers of the skins. Who appeared as witness for the prosecution, were accomplices. Davda v.r. [1965] E.A. 201 (C.A) . Charge under the Prevention of Corruption Act. s.3(1) of Tanganyika. Intermediary corruptly solicits for money for a third party. Both intermediary and third party charged. avie v. D.P.P. applied. Held that there was ample

evidence that he person solicited and his brother were not accomplices; see discussion pp.207-9. Circulars to magistrates NO.13/1947, (1947), 22 K.L.R. (2) 80. Fact situation to determine whether part played by one witness in charge of stealing and possession of stock implicated him as an accomplice. R.v. Awath him Ali and Others, (1918) 3 E.A.L.R. 82 - conspiracy, evidence of a statement by one of several conspirators in reference to the common design is relevant for showing parts taken by other conspirators. Witness held accomplice. Haji Moledina v.R. [1960] E.A. 678 (U). witness not an accomplice on count no. 1, demanding money with menaces, as the offence was complete when the demand was uttered and there was no evidence establishing him as an accessory after the fact; on court no.2 witness was accomplice (corruption) since he had bargained as to the amount of the gift and other evidence materially corroborated his evidence. D.R. Khetani v.R.,

[1957] E.A , application of principles of Davis v. D.P.P. to fact

situation to determine whether certain prosecution witnesses were accomplices and required corroboration. Abdulrasul s/o Jivraj v. R., (1931), 1 T.L.R. 667. When a witness admits he was cognisant of the offence and took no steps to communicate his knowledge with a view to preventing the commission of the projected offence, he must ordinarily be taken to be in sympathy with the criminals and so to be a witness upon whose evidence a count will act only after the closest scrutiny. Here the court drew no inference form hte silence f an unsophisticated and presumably uneducated African who heard a European or an Indian instigating the commission of an offence.

Presumably the courts today might take a

different view. Israeli Kasukolse and Others v. R., (1956), 23 C.A. 521, 524,. It is well-settled that an extra-judicial confession is to be treated as accomplice evidence and no weight is to be given to it as against any person other than the party making it unless it is corroborated by independent testimony; a fortiori when the confession has been retracted. (See chapter on Confessions, s.32 K.E.A., infra.) Mohamed Farah Musa v.R., (1956), 23 E.A.C.A. 469. Appellant had been convicted on three counts, the first and second of harbouring, contra Emergency Regs. 8(E) (2), and

the third of withholding information contra Reg. 27. The witnesses knew of the harbouring but their mere knowledge did not make them accomplices. Thus even if they and been accomplices of the appellant on the charge of withholding information, so that corroboration was necessary, that fact would not make them accomplices as regards the first two counts, even though the offences were related. Hilda Laperte and Another v. R, (1952), 25 K.L.R. 147, 151:- “... there mere fact that a person addresses an illegal demand to another does not make hte latter an accomplice in the offence constituted by the illegal demand.... we refuse..... to admit that a person who is the victim of an illegal demand can be said to be an accomplice to it. Of course... it is the law in Kenya that when a person to whom a demand is addressed complies with it and gives a pecuniary consideration which is taken, both the giver and the taker have committed offence: And when money is said by a witness to have been given in response to an illegal demand, his evidence as to the giving should be regarded as the evidence of an accomplice.” Receiving. Charge of receiving stolen property. Evidence of thief. Held that the evidence of a self-confessed thief, as an accomplice, required adequate corroboration. George Migwa Wambugu v.R.., (1950), 24 K.L.R. (1) 91. See also R.v. Bhaiji Murbhai, (1939), 6 E.A.C.A. 110. approved in R.v. Taibali Mohamedhabi,

(1943), 10 E.A.C.A. 60. See also Murdin Ali

Rhemtulla and Another v.R., (1956),23 E.A.C.A. 430. For application to fact situations, see Circular to magistrates No. 32/1946, (1946), 22 K.L.R. (1) 94; Joseph Mbebi s/o Mati v.R. [1957] EA. 426 (K) R.v. Fataki Sakhair,

(1920), 8 U.L.R. 11. Adultery.

Wife was held to be an

accomplice though not liable to prosecution and the evidence should not be accepted without corroboration. (Note: if the recommendations in the Report of the Commission on the Law of marriage and divorce is implemented, s.168 of the Law of Matrimony Act 196 will provide that adultery is an offence, and this rule may well become applicable in Kenya.)

5 Corroboration (a) Principles behind the requirement of corroboration in accomplice cases. The Court in R.V. Hasahm Jiwa, (1949)

16 E.A.C.A 90, 94, quoted with approval

WOODROFFE’S LAW OF EVIDENCE, (9th Edn.), p. 952 which sets forth the reasons why evidence of an accomplice must be treated with special rules:“Principle - The testimony of accomplices, who are usually interested, and nearly always infamous witnesses, is admitted from necessity, it being often impossible, without having recourse to such evidence to bring the principal offenders to justice. But the practice is to regard the statements of such persons as tainted because, from the position occupied by them their statements are not entitled to the same weight as the evidence of an independent witness. Accomplice evidence is held untrustworthy for three reasons.(a) because an accomplice is likely to swear falsely in order to shift the guilt form himself; (b) because an accomplice is a participator in crime, and consequently an immoral person, is likely to disregard the sanction of an oath; and (c) because he gives his evidence under promise of a pardon, or in expectation of an implied pardon, if he discloses all he knows against these with whom he acted criminally, and this hope would lead him to favour the prosecuted.” See also R.v. Asumani Legeni s/o Muza, (1943), 10 E.A.C.A. 92 where the same principles are reiterated. (b) definition of corroboration.

The leading decision defining corroboration is R.v. Baskervile, 91916), 2 K.B. 658, found in, for example, R.v. Manilal Ishwerlal Purchit, (1942), 9 E.A.C.A. 58, 61, where the Court summarised the definition by saying:“...the corroboration which should be looked for is, as laid down in R. v. Baskerville... some additional evidence rendering it probable that the story of he accomplice is true and that it is reasonably safe to act upon it. It must be independent evidence which affects the accused by connecting him or ending to connect him with the crime, confirming in some material particular not only the evidence that the crime has been committed but also that he accused committed it. It is of course not necessary to have confirmation of all the circumstances of the crime corroboration of some material particular tending to implicate the accused is enough and whilst the nature of the corroboration will necessarily vary according to the particular circumstances of the offence changed, it is sufficient if it is merely circumstantial evidence of his connexion with the crime.

Corroboration may also be found in the

conduct of the accused.” It is obvious, of course, that it is not necessary that everything which the accomplice says be corroborated or confirmed by other independent evidence, for if this were the case, the evidence of the accomplice would not be necessary at all. (c) findings and direction required The first duty of the court is to make a finding that the is, in fact, an accomplice. As was said in R. v. Ndaria s/o Kariuki and Seven Others, (1945), 12 E.A.C.A. 84, 86,:“ A paint which is sometimes lost sight of in considering accomplice evidence is that the first duty of the Court is to decide whether the accomplice is a credible witness. If the Court, after hearing all hte evidence, feels that it cannot believe the accomplice it must reject his evidence, and unless the independent evidence is of itself sufficient to justify a conviction the prosecution must fill. If, however, the Court regards the accomplice as a

credible witness, it must then proceed to look for some independent evidence which affects the accused by connecting or tending to connect him with the crime.... But in every case the Court should record in its judgment whether or not it regards the accomplice as worthy of belief.’ (emphasis added). It should be kept clearly in mind the distinction between the need for a finding as to whether the accomplice is worthy of belief and the basing of a conviction on uncorroborated accomplice evidence. The words used continuously by the courts that it is “unsafe to convict” (see below) on uncerroborated evidence do not mean that such a conviction is “illegal” - see s. 141. In Uganda -v- Shah, [1966] E.A. 30, 31 (C.A.) the Court said:“ It was argued for the respondent that hte learned resident magistrate in his judgment, after directing himself correctly on the principles to be applied, erred in his approach to the evidence of accomplices in that he reached he decision that he witnesses were to be believed before he looked for corroboration of their evidence.

The learned judge who heard the first

appeal upheld this submission, holding that the learned magistrate had ‘put the cart before the horse’ by first deciding that he believed the three accomplies and then looking for corroboration. With respect, we cannot agree and we think that there was nothing wrong in the learned magistrate’s approach.

The absence of corroboration or he inadequacy of the

corroboration of the evidence of an accomplice is not of itself a reason for disbelieving that evidence but merely preludes the court (save in exceptional circumstances) from basing a conviction on it. Of course, quite apart from any question of corroboration, a court should never accept or reject the testimony of any witness or indeed any piece of evidence until it has heard and evaluated all the evidence in the case. At the conclusion of a case, the court weighs all the evidence and decides what to accept and what to reject. When it accepts the evidence of an accomplice, it then, save as aforesaid,

looks at the other evidence which it has accepted to see if it affords corroboration of the evidence of the accomplice.” Again in the headnote to R.v. Kipkering Arap Koske and Another (1949), 16 E.A.C.A. 135 where it was held that:“........whether by law or practice corroboration is needed or not, the testimony of a witness may be so utterly unreliable that no reliance whatever can be placed on his evidence, and in such case no amount of corroboration can render it safe to rely upon his evidence in support of a conviction. When a witness is of this character, a conviction can only be had on entirely independent and reliable evidence from another witness or other witnesses proving the accused guilty of the offence.” After making - and recording - a finding that a witness is an accomplice, and whether he is worthy of belief, if he is so worthy the court must make and record a direction to itself or the assessors that it is unsafe to convict unless the evidence of this witness is corroborated in some material particular. A sample warning is found in the guide to practical procedure on p.82, infra The requirement of corroboration, while a rule of practice, has practically attained the status of a rule of law, and it is only in exceptional circumstances that a conviction based upon uncorroborated accomplice evidence will be upheld. (See (d) below). When a court is in doubt as to whether or not witnesses are, in fact, accomplices and use the same procedures as in cases where there is no doubt as to their status; as was done in Kanyumbi s/o Katungi and Another, (1954), 21 E.A.C.A. 336. See also R,v. Ndaria s/o Kariuki, (1945), 12 E.A.C.A. 84. (d) Unsafe to convict in the absence of special circumstances. The Court of Appeal in Ganisio s/o Walwa v. R., (1956), 23 E.A.C.A. 453 discussed at length pre -Davies cases which suggested that a court should never convict on uncorroborated accomplice evidence “in the absence of special or exceptional circumstances.” and on p.456 said :-

“It is moreover, to be noted that any rule of law requiring ‘special’ or ‘exceptional’ circumstances to be proved in order to justify a conviction on uncorroborated accomplice evidence would as seems sometimes to be overlooked, be inconsistent with section 133 of hte Indian Evidence Act (s. 141, K.F.A.), which provides without exception or limitation that ‘a conviction is not illegal merely because it proceeds upon he uncorroborated testimony of an accomplice. The Court called this “the practical desirability of, as opposed to the legal necessity for, evidence corroborating that of an accomplice.” (p.457) In Davies v. D.P.P. said that the “true rule” had been accurately formulated in three proposition:“First proposition. In a criminal trial there a person who is an accomplice gives evidence on behalf of the prosecution, it is the duty of the judge to warn the jury that, although they may convict upon his evidence, it is dangerous to do so unless it is corroborated. Second proposition: This rule, although a rule of practice, now has the force of a rule of law. Third proposition: Where the judge fails to warn the jury in accordance with this rule, the corroboration of the evidence of the accomplice, unless the appellate court can apply the proviso to section 4(1) of the Criminal Appeal act, 1907.” (Note: for a Kenya case applying the equivalent section of the C.P.C, s. 381(c) (now 382), see Kantibhai C. Patel v.R., [1957] E.A. 890, 892 (K). However hte Revised Supplement, 1964, deleted the references to misdirection, both subs. (c) and hte word misdirection in hte provise when jury trials were abolished. Patel’s case involved a trial before a magistrate without jury or assessors, and it is submitted that application of the (then) s.381(c) was technically incorrect. It is an arguable proposition that the section as it now reads is not

statutory authority for an appeal court upholding a conviction where there is a misdirection on corroboration even though the section contains a reference to irregularity in the judgment, although the practice of the Court of appeal is will to quash a conviction and allow the appeal unless there is overwhelming evidence of corroboration which would irresistably have led to the same conclusion despite the lack of direction. Departure from the general practice of not convicting on uncorroborated evidence is, however, justified in what the Court in Canisio’s case called “exceptional cases”. The Court at p.458 set forth the determining factors as follows:“... there are exceptional cases in which a departure from that general practice is justified. The critierion as to whether such an exceptional case has arisen is the credibility of the accomplice or accomplices combined with the weight to be attributed to the facts to which they testify. The principal factors to be considered when assessing their credibility are not only their demeanour and quality as witnesses but also their relation to the offence charged and the parts which they played in connection therewith, that is to say, the degree of their criminal complicity in law and in fact. A departure from the general rule of practice is only justifiable where, an applying the criterion in that manner, is clearly appears that the accomplice evidence is so exceptionally cogent as to satisfy the Court beyond reasonable doubt, and where accordingly the judge or judges of fact, while fully conscious of the general inherent danger of any such departure, is or are convinced that in the particular instance concerned the danger has disappeared.’ (emphasis added). As to the degree of complicity see general discussion, para.(2) p.70), in R.v. Wanjara, (1944, 11 E.A.C.A. 93, the Court held that the witness ‘was only an accomplice in a very secondary sense” owing to the circumstances of her complicity in the crime, and that “whilst corroboration of her evidence was desirable it was not essential.” Other examples of “exceptional cases” are Kichingeri and Others v.R.

(1908), 3

E.A.I .R 1 where the degree of complicity of villagers who assisted in putting a witchdoctor

to death (see p. 70 was held to be such that their evidence was not tainted in the same manner as that of an ordinary accomplice in a crime.” Cases which may be examined to show circumstances where the courts have held it “unsafe to convict”, there being no special circumstances justifying upholding the appeal are Wawa s/o Kilonzo v.R., (1950), 17 E.A.C.A. 152, R.v. Taihali Mohamedbhai (1943) , 10 E.A.C.A 60; r.v. Asumani Logoni s/o Muza, (1943), 10 E.A.C.A. 92; Mohameddi s/o Saidi and Others v.R., (1944), 11 E.A.C.A. 93; R. v. Haji Mohammed Sale Mohamed; (1933), 15 K.L.R. 109, R. v. Thakar Singh, (1934) 1 E.A.C.A. 110 (e degree of corroboration required may vary. In Murdin Ali Rhamtulla and Another v. R, (1956), 23 E.A.C.A 430, counsel argued that these two men are representative of the worst type of accomplice, and that their evidence requires stronger corroboration than in the case of ordinary accomplices, and that the learned Judge did not specifically address his mind ot the question that they were accomplices of the worst type, so that he accepted as constituting corroboration particulars which in the circumstances of this case were not sufficient, citing authority which held that an accomplish who changes his story or whose credibility is otherwise strongly suspect needs to be strongly corroborated. The Court of Appeal accepted this proposition, but held there that the accomplices did not fall within that category. (f) corroboration in part corroborates the whole. Noting that the definition of corroboration in Baskerville’s case includes hte words “confirming in some material particular”, it should be kept in mind that if an accomplice is corroborated, not only may that part of his evidence which is corroborated be relied but also that apart which is not corroborated, the corroboration if a material part being a guarantee of the truth of his evidence as a whole. See R. v s

Taichai Magamedbhai,

(1943), 10 E.A.C.A 60. see also: Fazel Jaffer v.R,g (1928), 1 T.L.R. 157. (g) examples of what may or may not be corroboration

In as much as, in the words of R.V. Baskerville, “ the nature of the corroboration will necessarily vary according to the particular circumstances of the offence charge.”, it is not possible to give examples of corroboration which will cover more than a small variety of circumstances. Reference to the cases cited on the subject will provide guidance as to the approach of the courts in various instances, but there are certain cases which have considered whether certain general kinds of evidence can amount to corroboration. 1 A witness may not corroborate his own evidence Githae s/o Gathigi and Another, (1956), 23 E.A.C.A. 440, 441. “ The third item said to have corroborated (the accomplice’s) evidence was ‘the fact of his ability to point out to the police where the deceased’s body had been buried.’ This involved he erroneous proposition that a witness can corroborate himself.

In truth the only result of (the

accomplice’s) ability to disclose the site was to establish his credibility as a witness who asserted that he took part in the burial; his disclosure of the site was no corroboration in the true sense of that term, namely, independent testimony which tends to connect the accused with the crime charged, for neither was it independent of (the accomplice’s) testimony, nor did it implicate the appellants.” In R. v. Shah Hirji Popat, (1947), 22 K.L.R. (2) 38, the appellant was convicted of offences under hte Price Control Regulations, and the evidence against him had been that of two accomplices. The magistrate found corroboration of the evidence given by hte accomplices in contemporaneous entries made by one of the accomplices in a personal book, and by the other accomplice in his firms’s cash book. The Court said on p.40:“An accomplice cannot properly be held to have corroborated his own testimony by his previous statement, if admissible, and whether written or oral, any more than such testimony could properly be held to be corroborated by the evidence of another accomplice... These previous book entries written conemporaneously by the two accomplices... did not amount

to independent evidence affecting he appellant by tending to connect him with the crime.” 2. One accomplice cannot corroborate the evidence of another accomplice.

“.... the witness Maina cannot be treated as corroborating Wambugu, since one accomplice cannot corroborate another.” Githae s/o Gathigi and Another v.R., (1956); 23 E.A.C.A. 440, 441. see also R.v. Atanas s/o Mwamere (1936) 17 K.L.R. (1) 60; R. v. Shah Hirji Popat, (1947), 22 K.L.R. (2) 38, 40. 3 More opportunity, as distinct from exclusive opportunity, will not suffice as corroboration. See Circular to Magistrates No. 3/1943, (1943), 19 K.L.R. (2) 93, setting forth the order in R.v. James Okumbu s/o Ndenina,, Conf. Case 610/1942. Thus if there is evidence which is independent of the evidence of the accomplice which indicates that the accused was the only person who had opportunity to commit the offence, this would be sufficient corroboration, but if it is shown that the accused was only one of several who had hte opportunity, this would not constitute corroboration of the accomplice’s evidence.* 1. It is doubtful that the mere fact that an accused person did not deny statements made by the accomplice is corroboration. It was held in Francis Barrrallon v.R., (1920), 8 E.A.L.R. 119 it was held that non-denial of an accomplice’s statement may be corroboration of it. The Court here relied on he case of R.v. Feigenbaum, (1919), 14 Cr. App. R. 1. In R. v. Juma s/o Mara, (19430, had been doubted in R.v. Keeling, 28 Cr. App. App. R. 121, but neither of the East African decisions has been referred to since decided. Similarly, in R. v. Gas Ibrahim, (1946), 13 E.A.C.A. 104, the accused was one of nine army deserter. To avoid detection he killed a woman, and evidence against him was given by two of the other deserters who had gone on their way without attempting to assist the woman. The Court there held that although the witnesses were not accomplices to the act, yet in

these special circumstances they required corroboration, noting also that although nondenial of material facts by the accused when deposed to by the prosecution witnesses could in certain cases constitute corroboration, lack of corroboration could not be remedied by the mere fact that an accused puts up a false and perjured defence. Although neither of the earlier cases were referred to in Ibrahim’s

case, the query remains as to whether there

would be a distinction between non-denial of statements made by an accomplice and nondenial of statements made by one not an accomplice but still requiring corroboration? 5. Circumstantial evidence may be corroboration. The Court in Baland Singh v.R., (1954), 21 E.A.C.A. 209, 211 noted the distinction between circumstantial evidence as corroboration and the basing of a conviction on circumstantial evidence (see discussion,, Introduction, p. vii-ix supra):“... circumstantial evidence, although not wholly inconsistent with innocence, may be of great value as corroboration of other evidence. It is only when it stands alone that it must be inconsistent with any hypothesis other than guilt.” 6. A lie told by the defendant may be corroboration. From Bassan and Baukobia v.R., [1961] E.A. 521, 530 (C.A.):“... a lie told by the appellant to a police offier was also capable of being corroboration. in the latter connection the Lord Chief Justice (in Crodland v. Knowler, 35

Cr. App. R. 48) said:

“... one has to look at the whole circumstances of the case. What may afford corroboration in one case may not in another. It depends on the nature of the rest of the evidence and the nature of the lie that was told.”

7. A statement made by an accused person, whether amounting to a confession or not, may in a proper case amount to corroboration of accomplice evidence, even if the statement is retracted by the accused after it was made. See Bassam amd Watboa v. R., [1961] E.A. 521 (C.A.); S.G. patel v. R., [1957] E.A. 881 (K) ; R.v. Ndaria s/o Kariuki and Others, (1945), 12 E.A.C.A 84; Obeli v. Uganda [1965] E.A. 622 (C.A). If the accomplice is a co-accused. The rules re different; see discussion on s.31 K.E.A. in chapter of confessions. Although generally corroboration is required in the case of retracted confessions; see Tuwamoi v. Uganda, [1967] E.A 84 (C.A.), in Bassan’s case it was held that while it is true that, as a general rule, evidence which itself requires corroboration

cannot

provide

corroboration

of

other

evidence

also

requiring

corroboration, retracted statements are not of the same quality as accomplice evidence, therefore, a statement made by an accused person, whether amounting to a confession or not, say in a proper case amount to corroboration of accomplice evidence. 8. A refusal to give evidence on oath cannot amount to corroboration of accomplice evidence, which must itself be corroborated. in Omari s/o Hassani, (1956), 23 E.A.C.A. 580 it was held that while a judge is entitled to take into account a refusal to give evidence on oath, such refusal cannot be used to belster up a weak case or to relieve the prosecution from proving its case beyond reasonable doubt, nor can such a refusal amount of itself to corroboration of evidence which itself requires corroboration, citing Jackson’s case, 37 Cr. App. R. 43 at 48. See also Lubege v. Uganda, [1967] E.A. 440 444 (C.A.). 9. A hearsay statement may not amount to corroboration. In Lubege’s case, supra, it was held that the trial judge had gone beyond what was allowed by s. 155 U.E.A. (s. 165 K.E.A. - proof of consistency of former statements) by allowing the evidence of one prosecution witness concerning what another prosecution witness had told him to corroborate the evidence of the other witness.

10 Expressions of intention prior to the crime may afford corroboration. In R.v. Okecha s/o Olilia, (1940), 7 E.A.C.A. 74 it was held that the evidence of a previous threat, being an expression of intention, went beyond mere motive and tended to connect the appellant with the killing. Similarly, Byamungu s/o Rusiliba v. R.,

(1951), 18

E.A.C.A. 233, where hte Court, citing Okecha’s case, said on p.235 that evidence of a prior conspiracy to kill the deceased, although evidence of something antecedent to the crime, with, if believed, afford good corroboration in law. 11 First report as corroboration. See discussion under s. 165 K.E.A., infra, where evidence of a first report corroborates a witness’s later testimony as to the same facts in the sense of showing consistency. See, for example, Majabu Kizito v. R., (1955), 22 e.a.c.a. 458. 12 Evidence equally as consistent with the defence case as with the prosecution case is not corroboration. r.v. Munyambo s/o Mumo, (1939) 18 K.L.R. (2) 164 involved a charge of official corruption where the accused had made entries in his register purporting to show that three women were dead, whereas in fact they were alive, and he was alleged to have received a bribe in connection with each entry. His defence was that he entered the register in accordance with information given him by a headman, and that if it was incorrect, it was not his fault. Evidence was given by witness held by the court to be accomplices. The court said on p. 165:“ Were the evidence supported by the entry in the register showing that a woman who was alive was entered as dead and the entry was in the accused’s handwriting then, in the absence of an explanation that might reasonably be true, that would be corroboration of the accomplies’ evidence. But where, as in this case, the register is or may be consistent with the defence that the entry as made on representation of the headman Kitati that the woman was

dead, then the position is different, for the register in such a case does not corroborate the commission of hte offence charged in any way.”Fashinder Rai v. King Emperor, I.L.R. Patna, Oct. 1939, part X, 704 cited as authority, wherein it was said:Even, however, could (the evidence) have been accepted, it did not amount to corroboration, because it was equally consistent both with the version of the prosecution and with that of the defence.” There are a number of other situations where corroboration is

required, for

example corroboration of the evidence of children, on examination of those instances and cases cited will provide additional examples of the application of the general rules. For the relief regarding the requirement for corroboration of the evidence of a thief in trials for receiving (see p.63 et seq.) see Joseph Mbati s/o Mati v. R.,[1957] E.A. 426 (K), and Gecree Kigwa Wambugu v. R., (1950), 24 K.L. R. (1) 91. In the reverse situation, a trial for theft when the receiver is a witness, although the receiver was (before Davis v. D.P.P.) not an accomplice of the thief unless he participated in hte theft (whereas the thief was an accomplice in the crime of receiving), his evidence was considered no better than that of an accomplice, and the general rule that it is generally unsafe to convict in the absence of corroboration was applied; Mikidadi s/o urari and Another v. r., (1952), 1 T.L. (R) 368. (h) Procedural notes, When the Indian C.P.C. was in effect, under s. 337 a court could tender a pardon to a person accused, on the condition that he make a full disclosure of the.. of his knowledge concerning the circumstances of the offence, and it was held that the evidence of a witness suspected of being an accomplice should not be accepted until the pardon was tendered and his evidence was freed from the suspicion of being dictated by self-interest; R. v. Ouma s/o Achoda, (1915), 2 U.L.R. 152, although the person so pardoned was still on accomplice and it was unsafe to convict in the absence of corroboration; R.v. Bagunda Lwakikara and Others, (1920), 3 U.L.R.1. The present C.P.C. in effect contains no similar provisions for a

tender of a pardon, but is interesting to contrast this approach with the present decisions on procedure. In R.v. Umari bin Abdalla, (1942), 20 K.L.R. (1) 81, the Court noted that if there were two accused charged with the same offence, and hte first pleads guilty, the second pleading not guilty, and then the first gives evidence against the ............. it is desirable that sentence be passed on the first accused before the trial of the second accused,. Similarly in R.v. Sabakaki and Lewe, (1919), 2 U.L.R. 308, there was a joint trial for theft and receiving. The second accused pleaded guilty and was then examined by the magistrate, giving answers which implicated the first accused as a thief. The second accused was then convicted and sentenced and evidence was aken from him and recorded in the same file, and on this hte first accused was convicted. The Court held that hte first accused should have been discharged at the conclusion of the case for the prosecution, and if it had even desired to proceed with the case against him a new trial should have been instituted, in which the second accused could have been called as a witness. A practical procedure for use when dealing with accomplice evidence. The following procedure, in outline form, with reference to pages of the text where the substantive law if found, should be of assistance in ensuring that the attention of the magistrate is drawn to the requirements of the law and that the case record accurately reflects these requirements. 1. Determine whether a particular witness is an accomplice (definition,p.69,) or should be treated as an accomplice. 2 Make a finding that the witness is an accomplice or should be treated as an accomplice and record that finding on the cs record. (Para.5(c), p. 75). 3. make a finding that the witness is an accomplice or should be treated as an accomplice and record that finding on the case record. (Para.5(c). p.75). 3. make a finding as to whether the accomplice is unworthy of belief, and reasons for this should be given), disregard his evidence and indicate on the case record that you are doing so. 4. If you decide that the accomplice is worthy of belief, proceed to lack for corroboration of his evidence (definition, para. 5(b), p. 75).

6. If you find corroboration for the evidence of the accomplice, record this fact on the case record and explain what this corroboration is. 7. If you do not find corroboration for the evidence of the accomplice, record this fact on the case record. 8.If the evidence of the accomplice is the only evidence upon which hte accused could be convicted, and if you do not find

corroboration for his evidence, you should warn yourself

on the case record in words similar to the following:I now warn myself that since A in an accomplice, even though I have found him to be worthy of belief, and though I am aware that s.141 K.E.A. provides that a conviction shall not be illegal because it proceeds upon the uncorroborated evidence of an accomplice, nevertheless it is dangerous to convict in the absence of corroboration unless there are exceptional circumstances which provide strong reasons for doing so. 9. Examine the criteria laid down in Canasic’s case, s.70, and determine whether you have strong reasons for convicting. Record there are strong reasons in the case record. It would be well to cite Canacid’s case ................................... 10 If you do not have strong reasons for convicting despite the lack of corroboration, state on the case record that after reviewing the criterion in Canici’s case, the required exceptional circumstances do not exist and acquit. In all instances of doubt the authorities cited should be consulted before making a decision. The Court may.... (c)

that

a

bill

of

exchange,

accepted

or............................................................................ Consideration is defined in OSBORN:-

or

endorsed,

was

accused

“A valuable consideration in the sense of the law may consist either in some might, interest, profit or benefit accruing to the party, ow some appearance, detriment, less or responsibility given, suffered or undertaken by the other”. The Kenya law on bills of exchange is found in the Bills of Exchange act, (Ca.270. It is important that he negotiability of bills of exchange be preserved, therefore, since these financial instruments are solemnly executed and because hte existence of consideration can reasonably be inferred, the law raises a presumption in favour of the instrument. Application of hte presumption, although not specifically mentioned as falling under s. 114 I.E.A or illustration (c), may be mean in the following cases. Note also how this presumption affects hte procedure and burden of proof. Nanalal Vrajadas v. Chnilal Dhanji Mehta, (1946), 13 E.A.C.A. 58. Enishi merhiji Dhanani v. Amratlal hirachand Ltd., 91953), 26 K.L.R. 18. S.S. Rawal and another v. Rataan Sinma Thakkar Singh,(1956), 29 K.L.R. 98 Patel Brothers v. H.D. Hasmani, (1952), 19 E.A.C.A. 170 It should be noted that s.30(1) of the Bills of Exchange Act contains the presumption of value and good faith, under which the above cases were decided. The Court may presume (d) that a thing or ... of that things which has been shown to be in existence within a period shorter than that within which such things or states of things usually cease to exist, is still in existence. Example It is proved that a river ran in a certain course five years age, but it is known that there have been floods since that time which might have changed its course. Does the maxim apply?

Application of this presumption is illustrated in Kanji and Kanji v. R., [1967] E.A. 411, 415 416 (C.A.) , wherein the appellant had been convicted under ss. 23(1) and 75 of the Factories Ordinance (Cap. 297, now the factories act, Cap. 514) of Kenya, of causing bodily injury to a person by failing o fence securely the feed aperture of a sisal decorating machine. The magistrate made a finding upon hte condition of hte machine on the date of the accident from the evidence of a Factory Inspector who had inspected hte machine about five months after the accident. On appeal the appellant company argued that the machine might have been securely fenced at the time of the accident and that the magistrate should not have acted upon a report that it was not fenced five months later.

The Court, after

citing the section, said:“ Illustration (d) of the illustrations set out to the section is relevant to this case and it reads:(quoting illustration (d) The learned author of SARKAR ON EVIDENCE (10th Edn.) at p. 901 remarks that s. 114 ‘crystallises the principle of ordinary common sense’. At p.910 he says, in relation to illustration (d): ‘This illustration is founded on the presumption in favour of continuance or immutability. It is a very general presumption founded on the experience of human affairs, that states of mind or things once proved to have exited previously or subsequently in a particular state are to be understood as persisting or continuing in that state until the contrary is established by evidence either direct or circumstantial..... The presumption of continuance which is one of fact and not of law, will, however weaken with the remoteness of time, and only prevails till the contrary is shown, or a different presumption arises form the nature of the case... The limits of time within which inference of continuance possesses sufficient probative force to be relevant, must obviously vary with each case - always strongest at the

beginning, the inference steadily diminishes in force with the lapse of time at a rate proportionate to the quality of permanence belonging to the fact in question... So far then as the interval of item is concerned, no fixed rule can be laid down; the nature of the thing and the circumstances of the particular case must control....’ The Court accepted these statements as a correct statement of the law in relation to the case, and, distinguishing between Indian cases and English law (HALSBURY’S LAWS OF ENGLAND(3rd Edn.), vol.15, p.283) said:“We see nothing in hte wording of s.114 to justify the proposition (that s.114 did not allow a court to presume backwards) and are of opinion that in a proper case a retrospective presumption may be drawn form a proved fact. Applying the law as stated above to the facts of the instance case, we are quite unable to say that the learned magistrate was wrong in law to presume that hte machine in question was in the same condition in April as it was in September. It is true that a substantial period of time intervened, but, as the learned judge said, a piece of machinery is unlikely to undergo physical change in a matter of months. In addition, the evidence in fact provided some support for the presumption that the condition of the machine had not changed... In the absence of any suggestion that some difference existed, we think the learned magistrate was entitled on the evidence to same that there had been no material change in the condition of the machine,”(p.417. Another example of application of the presumption in this context is D.P.P. Tanzania v. Nathani, [1966] E.A. 13 (C.A.). here the accused was charged with forging with intent to deceive an E.A.A. air ticket purporting to have been issued in Zanzibar. The accused was licensed to issue such tickets form Zanzibar, but not from Dar-es-Salaam, form where it was alleged the ticket had actually been issued. In proving that the dar-es-salaam office

was not licensed the prosecution introduced a cyco-styled loose-leaf volume as an official agency list issued by the International Air Transport Association on February 1, 1965. The Court said on p.16:“It was urged by counsel for hte respondent that, even if the document was admissible, nevertheless it did not prove the position as to any date other than February 1, 1965. This submission, of course, goes to the weight of hte evidence of the document as opposed to its admissibility, and the question of its weight depends on a number of factors. The dates charged in the counts were either shortly before or shortly after February 1, 1965, and in no case was the period longer than forty days. (Counsel) stated that, in spite of repeated requests by the respondent for approval of the Dar-es-Salaam office, it had not been approved. It is only if it had been approved that it would be listed and it was not suggested by the respondent that the Dar-essalaam office had either been approved or listed. In hte circumstances it seems to us that the resident magistrate was entitled to presume under s.114 of the Evidence Act that the position was the same on each date charged in any count as that shown in the agency list on February 1, 1965 (See kanji v. R.). We consider, accordingly, that the resident magistrate was justified in coming to hte conclusion that the Dar-es-salaam office was neither approved nor listed at the relevant dates.” -----------------The Court may presume (c) that judicial and official acts have been regularly performed. Example:- a judicial act, the regularity of which is in question, was performed under exceptional circumstances. Does the maxim apply? Generally speaking, as a matter of public policy, where there is general evidence of things having been properly and regularly done, courts will not require proof of

circumstances which are required for the acts to be valid, but which probably were done. Where, however, under an act, certain things are required to have been done before any right or obligation is incurred, such as the giving of a notice, no presumption can be made in favour of the act having been done, and it must be proved to have been done. In Commissioner of Income Tax v. Armstrong, [1963] E.A. 505, 513 (C.A.) , a direction had been made by the Commissioner in proceedings involving a tax assessment. The taxpayer appealed the assessment.

There was no evidence in the case that the

Commissioner had considered whether the assessment was just and reasonable. The Court in discussing the application of the presumption said :“... but in any event, in my view, the matter is put beyond doubt by illustration (e) .. this section (s. 114 1E.A.) authorities the presumption that an official act, which is proved to have been performed, has been performed regularly; and this is a presumption which is not lightly over-ridden. Here there is no doubt that the official act, that is, the making of a direction, has been performed and the only question is whether it has been performed regularly. On that question it seems to me that the court should, under s.114, presume that it has been performed regularly; that is, that the Commissioner has considered that the adjustments which he directed to be made were both just and reasonable as well as appropriate in the absence of any evidence that he failed to consider such matters. In A-g V. Shivji Naran Punja, [1961] E.A. 652, 668 (C.A.), NEWSOLD, J.A., speaking in dissent in an immigration case made this observation:“His passport shows that a re-entry pass, valid till December 12, 1953, was granted on December 13, 1951, and that he re-entered Kenya on November 17, 1952. as there was no evidence relating to the circumstances in which the re-entry permit was grated, it must under s.114 of the Indian Evidence act, as applied to Kenya, be presumed to have been lawfully granted unless it was

granted directly or indirectly by reason of a misrepresentation or nondisclosure of a material fact.” a.When is the presumption applied? There must be evidence to show that the act has been performed before the presumption will be applied. An example involving he situation where a magistrate refused to apply the presumption when requested to do so by the prosecution is R. v. Kitha, [1961] E.A. 568 (U). Here the magistrate had refused to presume that a Chief Secretary was acting under authority conferred by the Governor under s.16 of the Interpretation and General clauses Ordinance when he made rules. After discussing the Uganda equivalents to s. 4 and 119 and quoting form WOODROFFE ON THE LAW OF EVIDENCE (9th Edn.), p.126:“this section (.4) renders it is judicial discretion to decide in each case whether the fact which under s.114 may be presumed has been proved by virtue of that presumption. Circumstances may, however, induce hte court to call for confirmatory evidence.” and holding certain cited English authorities not applicable, the Court again quoted WOODROFFE, p.808:“This section (s.114) authorises the presumption that a particular judicial or official act, which has been performed, has been performed regularly; and the presumption can only be overturned by a strong evidence. But it does not authorise the presumption without any evidence that the act has been performed.” and continued:- (p.571) “Reading the two sentences together and attempting to apply the principles therein set out to the facts of the instant case, it would appear that had there

been evidence of a direction by the government under s. 16 of the Interpretation ordinance, the court would have been entitled to presume that the direction had been properly given, but that it would not be entitled to presume that a direction by the Governor had been given in the absence of evidence of that fact. I am fortified in this view by the construction which the courts in India have placed upon s. 114 of hte Evidence Act.” The application of s.4 of the at may sometimes be lost sight of, and once hte act has been proved, it is within the discretion of hte court “... either regard such fact as proved, unless or until it is disproved, or... call for proof of it”.

in the majority of instances the

presumption will, of course be applied, but it is submitted that the matter was incorrectly stated by hte Court in E.A. Power Co. v. Dandora Quaries, [1967] E.A. 728, 733 (K) where it was said:“There is a well known maxim ominia praesumuntur rite esse acta which requires me to presume that all ats, especially judicial and official acts, are rightly an regularly done. The substance of this maxim is incorporated in s. 119 of the Evidence act. There is no evidence to rebut the presumption. I presume therefore the 1922 licence was renewed in proper time and that the 1962 renewal was also made in accordance with the procedure laid down by law”. (emphasis added) This is putting the matter too high when the discretion given to a court by virtue of s.4 is considered, and it is submitted that the decision should have reflected instead that once hte act was proved, the court had a discretion to apply the presumption,, and that, having so applied it, and there being no evidence to the contrary, the acts were presumed to have been proper. -----------------The Court may presume -

(f) that the common course of business has been followed in particular cases. Example The question is whether a letter was received. It is shown to have been posted, but hte usual course of deliveries was interrupted by serve floods in Nyanza. Does the maxim apply? Once a course of business has been proved, it is within the discretion of the court to presume or not presume whether that usual course of business was followed in a particular case. Facts showing the course of business are relevant under s. 16: sec. p.23. Questions concerning the operation of the presumption in connection with the posting of a letter arose in The Bugosa Miller & Industries Ltd. v. P.C. Patel, (1955); 22 E.A.C.A. 348. Here the question was whether a certain communication making a demand for production of a certificate had been received. The Director of the Company sworn that he had never received a communication. A clerk for hte respondent Patel produced a copy of a letter making a demand and a postage book which he said showed that a letter was posted to the Company on that date. He added that if the letter was returned by the Post Office it would be filed. These facts were admitted in evidence without objection. The Court of Appeal discussed hte presumption relating to posting of letter in the course of business as follows- (p.350) “There may of course be a presumption that a letter correctly addressed and dispatched by the usual course of post will be received by the addressee but there is in fact in the instant case no evidence that the letter was correctly addressed. The postage book, exhibit 3, has unfortunately disappeared and we do not know whether it showed how the envelope was addressed, but I would not be prepared to hold that the address as shown on exhibit A was sufficient. “ (Exhibit a was a copy of hte letter; The Court then went on to discuss the inefficiently of the address and came to the conclusion that in this instance proof of posting was not sufficient to justify the presumption of delivery, although the case was decided on other grounds.

The “course of business” referred to may be either public or private business, but the inferences which may be drawn from the course of business followed will depend upon hte circumstances of each case, for there is a great deal of difference in the way in which procedures are followed in a large public office such as the Post Office, or a bank or mercantile firm with set procures, and those followed by an individual engaged, for example, in the retail trade.

Whether sufficient regularity in a particular course of

business exists to make it probable that the customer or procure would be carried out in every instance depends upon the facts. --------------------The court may presume(g)

that evidence which could be and is not produced would, if produce, be

unfavourable to the person who withholds it. Example the prosecution fails to call a witness those evidence is important in unfolding the sequence of events in the commission of an offence. RANTALAL notes, p.252:“ The conduct of the person withholding the evidence may be attributed to a supposed consciousness that the evidence, if produced, would operate against him. in a criminal case failure to give evidence of relevant facts leads to the presumption that evidence which could be produced and is not produced would, if produce, be unfavourable to the person who withholds it. Though the prosecution is not bound to call all available witnesses irrespective of considerations of number or reliability, witnesses essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution, whether in the result the effect of their testimony is for or

against the case for the prosecution.. In order to entitle the Court to draw inferences unfavourable to the person withholding evidence; the opposite party must satisfy the Curt that such evidence was in existence and could be produced.” A question may arise as to when someone is, in fact, “withholding” evidence. In Ali K. Virni v. united Africa Co., [1958] E.A. 204, 210 (C.A) it was said:“The cross-examination of Mr. Waller was mainly directed to the issues of fraud and illegality and Mr. Grimble still remained wholly in the dark. in these circumstances it would be quite wrong to apply against his clients the presumption permitted by illustration (g) to s. 114 of the Indian Evidence act. There was no ‘withholding’ of any evidence by them in this case, but merely a failure to appreciate the desirability of calling it.” The presumption, when applied against an accused, must not be used either to “fill in the gaps” in a prosecution case or considered to shift the normal burden of proof from the prosecution, for example, in

R.V............................................................. the accused,

charged with murder, told A story that he had seen he deceased lying in the road, having arrived after he had been assaulted, and that he then went up to the deceased and picked up the sworn with the had been killed. At the police station the accused id not tell this story, it being related only at the trial. The Court at p.102 said:“This failure to report what he had seen as soon as he arrived at the station strikes us as significant and inexplicable. If his story were true the obvious thing for him to do would be to tell it to hte Police at once however distraught he might be. If he had done, he could have given evidence to that effect and the Police witnesses could have been crossexamined to support him. As it is put in hte Indian case of Isar Singh v. Emperor,

24 I.C. 585, refered to in WILLS ON CIRCUMSTANTIAL

EVIDENCE, 7th Edition, page 109, “when no prima facie case has been

made against the accused, it is open to the accused to rely safely on the presumption of innocence or on ht infirmity of the evidence for the prosecution. But when a prima facie case is made out and the presumption of innocence is displaced, then the force of circumstantial evidence is augmented whenever the party attempts no explanation of acts which he may reasonably be presumed to be able and interested to explain.” That is to some extent an application of illustration (G) to s.114 of the Indian Evidence Act which provides... This presumption cannot be used by the prosecution in a criminal case to fill up gaps in their evidence but it is reasonable to draw an inference against the accused when, as here, a strong case has been made cut against him an he omits to adduce evidence of his having done the one thing which one would have expected him to do if his story as to finding his cuonded friend and rushing to report is ture, such evidence being evidence which, if in fact he did so report, it was easily within his power to produce.” (App. 101-1-2, emphasis added). In Laila Jhina Mawji and another v. R., (1955), 22 E.A.C.A. 524, the wife of the accused threw away a clock, which was not recovered and was, therefore, not available for identificaiton as stolen property, although there was evidence that the clock had been seen on the wall of the appellant’s house. The court not only supported the application of the presumption by the magistrate:“ Nor can we say that the magistrate made a wrong use of the presumption because there was evidence which made it so highly probable that the clock seen on the wall was the complainant’s clock, that its non-production in evidence consequent on the male appellant’s act, rendered it safe to apply the presumption that had the clock been in evidence its production would have been adverse to the defence.” (p.529). but held that the presumption applied against both the wife, who threw the clock away, and the husband who had adopted the wife’s act, making the default as much his as hers. The presumption can be applied to an accused only where he fails to call witnesses who are available to him and are not prosecution witnesses. Abdi Elmi and Others v. R.,

(1956), 23 E.A.C.A. 568 at p. 569 where the Court in support of the proposition cited WOODROFFE, (9th Edn.) p. 814:“If the prosecution does not discharge its duty of producing all its available evidence, it is no answer to say that the accused, who has no such duty cast upon him, might have produced that evidence. No inference unfavourable to the accused can be drawn in such a case against him.” The relation of the resumption and the onus of proof was discussed in Abdul Ali Kassum v. R., (1955), 22 E.A.C.A. 530, 532 where the appellant argued that the judge on first appeal had misdirected himself.

Referring to the absence of any evidence to support he

appellant’s explanation and, in particular, to the failure to call two witnesses who, according to the appellant, had originally required the coffee which the appellant was accused of having received with guilty knowledge; the judge had said:“Section 114 (of the Indian Evidence act example (g) has to be used cautiously, but I consider that the learned magistrate was entitle to draw an adverse inference against the appellant, especially bearing in mind the special onus on an accused in a case of this nature, an onus which is not present in most criminal proceedings.” Counsel contended that if hte judge meant b “onus” what in law is meant by the word, it was a patent misdirection an could only be defended by saying that he did not mean what he said. The Court said:The passage is certainly very unhappily worded but we think, taking the judgment as a whole and bearing in mind that the learned Judge had shortly before been considering the presumption which may be drawn form recent possession of stolen goods, he meant nothing more than to say that that presumption, if drawn, would justify a conviction unless the accused person can put forward an explanation which may reasonably be true; and that, when such an explanation is put forward, it is reasonable for the court to expect that, if there are available witnesses who might be

expected to support it, if true, they will be called; and if they are not called the court may take this circumstance in to consideration when assessing the reasonableness of hte explanation.’ ----------------------The Court may presume (h) that, if a man refuses to answer a question which he is not compelled to answer by la, the answer, if given, would be unfavourable to him. As concerns the credit of a witness, this presumption should be read with. 2.157(3):(3) The court may, if it sees fit, draw form the witness’s refusal to answer, the inference that the answer, if given, would be unfavourable t the witness. This presumption is much like hte presumption in (g) above, but it does not contemplate the case of witnesses who are not compelled to answer on the grounds of privilege; see discussion ss. 129-136 infra. ----------------The Court may presume(I) that when a document creating an obligation is in the hands of the obliger, the obligation has been discharged. Example A borrows money form B and gives him a signed note. At the time of the trial where B is suing A for non-payment of the debt, the signed note is in the possession of. A. The presumpitn is that the loan has been repaid. But what is the case if the circumstances are such as to indicate that a may have stolen hte note form B? -----------------

Some presumptions have been embodied in statutes; see, for example the presumption of sanity, s.11 P.C., the presumption of value and good faith under s.30(1) of the Bills of Exchange Act (Capl27), see p.83. Other presumptions have been applied in various circumstances by the Courts, and an illustrative list for examination is given below:Bishen Singh Chadha v. Mohinder Singh and Another (1956, 29 K.L.R. 20 - no presumption of advancement arises in Kenya in favour of a Sikh son of Sikh father by reason of the father having paid the purchase price of property situated in Kenya and taken a transfer thereof in the name of the son. Stjernholm v. Stjernholm, (1955), 28 K.L.R. 183 - divorce, presumption of acquiescience from excessive delay in filing petition. Dar-es-Salaam v. Twentsche, [1967] E.A. 224 (.) - no presumption of dedication of public street. But see also Ngambo Estate v. Sikh Saw mills, {1957] E.A. 537, 539 (C.A.) Joosab Jacob and Others v. Administrator-General of Zanzibar, (1946), 13 E.A.C.A. 38 - presumption of ownership. R.v. Allibhai Mitha, (1945), 12 E.A.C.A. 54 - presumption under s.78 U.E.O. that evidence recorded was evidence given; see s.84 K.E.A.. infra. Wanjiku v. macaria, [1968] E.A. 216 (K) - presumption of validity of marriage; evidence of ceremony followed by cohabitation; what evidence to the contrary required to rebut presumption. It should be noted that ss. 83-96 K.E.A. deal specifically with presumptions as to documents, and are covered in the chapter on Documents, infra.

JUDICIAL NOTICE Judicial notice is defined as what judges see or the liberty accorded a judicial officer acting as such to recognise the existence or non-existence of certain facts or phenomena without calling for evidence. On what basis will Judicial Notice be allowed: 1.

The habit or customs of the court and this relates to the authenticity for instance of certain signatures. You don’t have to prove the authenticity every time they come to court. Seals of the court you don’t have to prove their authenticity because the court habitually uses the seal. The names and official designation of high ranking officers past and present; International relations of a country if Kenya is at war with a country judges are expected to know;

2.

Where statutes decree that certain things be judiciary noticed e.g. certain certificates that judges will decree should be taken judicial notice of;

3.

Need to make things workable e.g. the practice of the court, how the court conducts itself is taken judicial notice of. Ordinary rules of reasoning don’t need evidence to be proved.

4.

Basis of judicial notice is that of matters that are known by everybody e.g. judges would know that if you imbibe certain liquids you can get intoxicated this is commonly known. One cannot assume that judges are so ignorant that they won’t know what everybody else knows.

The effects of judicial notice Section 59 of the Evidence Act “No fact of which the court shall take judicial notice need be proved. Judicial notice dispenses with proof.

Sections 60 enumerates matters that the court should take judicial notice of. 60.

(1)

The courts shall take judicial notice of the following facts:-

(a)

All written laws, and all laws, rules and principles, written or unwritten, having the force of law, whether in force or having such force as aforesaid before, at or after the commencement of this Act, in any part of Kenya;

(b)

The general course of proceedings and privileges of Parliament, but not the transactions in their journals;

(c)

Articles of War for the Armed Forces;

(d)

The public seal of Kenya; the seals of all courts of Kenya; and all seals which any person is authorized by any written law to use;

(e)

The accession to office, names, titles, functions and signatures of public officers, if the fact of their appointment is notified in the Gazette;

(f)

The existence, title and national flag of every State and Sovereign recognized by the Government;

(g)

Natural and artificial divisions of time, and geographical divisions of the world, and public holidays;

(h)

The extent of the territories comprised in the Commonwealth;

(i)

The commencement, continuance and termination of hostilities between Kenya and any other State or body of persons;

(j)

The names of the members and officers of the court and of their deputies, subordinate officers and assistants, and of all officers acting in execution or its process, and also of all advocates and other persons authorized by law to appear or act before it;

(k)

The rule of the road on land or at sea or in the air;

(l)

The ordinary course of nature; Preston Jones V. Preston Jones – Preston went abroad and resided there for 9 months and therefore had no nuptial intercourse with his wife. 3 months after he came back, a baby was born to his wife fully mature. He petitioned for divorce on the grounds of adultery. Relying on the evidence that the ordinary course of nature i.e. that human gestation period was 9 months and not 12 or 3 months. The court held that the matrimonial offence of adultery was not proved. In the words of judges “though the court took judicial notice of the normal life of human gestation period, it was not completely ruled out that there could be abnormal periods of human gestation.

(m)

The meaning of English words;

(n)

All matters of general or local notoriety; (things that everyone knows)

(o)

All other matters of which it is directed by any written law to take judicial notice.

Should we take judicial notice of customary law? Kimani Gikanga The issue arose as to whether in a dispute involving customary law whether customary law should be taken judicial notice of. Judges were of the opinion that the party that seeks to rely on the customary should prove that customary law as a matter of fact by calling expert witnesses.

This is because of the difficulty of establishing what the customary law is at any given time since it is unwritten. Section 18 of the Magistrates Act Magistrates are allowed to take Judicial Notice of customary law without having to call for proof for it and if there is a dispute, then it will have to be established by proof. If customary law is a disputed tenet, then there is need for proof. If there are contentions then proof will have to be called. Section 60 (1) (b)

Judicial Notice should be taken of the general course of proceedings and

privileges of parliament, but not the transactions in their journals. The court need not call for evidential proof of privileges accorded to parliament.

These

provisions however exempts from judicial notice transactions in parliamentary journals. Whatever is recorded in the Hansard is not going to be taken judicial notice of. Section 60 (1) (c) -

Judicial Notice should be taken of articles of war for the Armed Forces.

Section 60 (1)(e)

-

the public seal of Kenya; the seals of all courts of Kenya; and all

seals which any person is authorized by any written law to use; Section 60 (1) (f) - The accession to office, names, titles, functions and signatures of public officers if the fact of their appointment is notified in the Gazette; Section 60 (1) (g) the existence, title and national flag of every State and Sovereign recognized by the Government; this is to avoid embarrassment. Section 60 (1) (h) Natural and artificial divisions of time, and geographical divisions of the world, and public holidays; Section 60 (1)(i) The extent of the territories comprised in the commonwealth;

Section 60 (1)(j)

the commencement, continuance and termination of hostilities between

Kenya and any other State or body of persons; Section 60 (1)(k)

the names of the members and officers of the court and of their deputies,

subordinate officers and assistants, and of all officers acting in execution of its process, and also of all advocates and other persons authorized by law to appear or act before it; Section 60 (1)(l)

the rule of the road on land or at sea or in the air;

Section 60 (1)(m) the ordinary course of nature; Section (1)(n) the meaning of English words; Section (1)(o) all matters of general or local notoriety; Section (1)(p) all other matters of which it is directed by any written law to take judicial notice. PRESTON JONES VS PRESTON Preston went abroad and resided there for 9 months and therefore had no nuptial intercourse with his wife. 3 months after he came back, a baby was born to his wife fully mature. He petitioned for divorce on the grounds of adultery. Relying on the evidence that the ordinary course of nature, human gestation was 9 months not 12 months or 3 months. The court held that the matrimonial offence of adultery was not proved. In the words of the judges, “though the court took judicial notice of the normal life of human gestation, it was not completely ruled out that there could be abnormal periods of human gestation. Re Oxford Poor Rate Case:

Burns V. Edmund In this case Crichton J. halved the conventional award of damages for loss of expectation of life to the wife of a deceased criminal after taking judicial notice of the fact that “the life of a criminal is an unhappy one.”

FACTS NOT REQUIRING PROOF – JUDICIAL NOTICES There are certain instances when facts need not be formally proved. a. Facts Admitted in Civil Proceedings. 61. No fact need be proved in any civil proceeding which the parties thereto or their agents agree to admit at the hearing, or which before the hearing they agree, by writing under their hands, to admit, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings. Provided that the court may in its discretion require the facts admitted t be proved otherwise than by such admission. ..........

The duty of the court is to resolve issues on which the parties disagree. If both parties in a civil suit agree on certain facts, it is only common sense that the time of the court not be taken up with requiring the parties to prove that about which there is no dispute. Indeed in certain cases all the facts are agreed upon, and the only matter before the court is the application of the relevant law. One of the rules underlying the rule is the necessity for determination of the "facts in issue" (s.3) so that the evidence can be directed towards the issues which must be determined by the court, and not towards irrelevant matters. In NOKES at p. 31 it is said:"In civil proceedings the facts in issue are determined partly by the substantive law regulating the claim, and partly by the written pleading of each party, which is served on the other side before the hearing. Thus, in an action for breach of contract for the sale of goods by sample, the plaintiff's allegations will usually depend upon the rule of law that there is an implied condition that the bulk shall correspond with the sample in quality, which includes state or condition. His statement of claim .... will allege, among other things, the making of the contract, its material terms, the quality of the sample and that the goods delivered in purported performance did not correspond in quality with the admitted quality of the sample. The written defence may admit all these allegations except the last. Then the principle fact in issue will be whether the bulk correspond in quality with the admitted quality of the sample. The paintiff's evidence will be mainly directed to this fact, though evidence may also be necessay to prove the amount of the damages." Every allegation of fact in the complaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleadings of the defendant, shall be taken to be admitted. The procedures folowed by parties in civil suits are found in the Civil Procedure (Revised) Rules, 1928, as amended, specifically as to the above in Orders VI and VII.

The section does not apply to criminal procedings. Just before enactment of the K.E.A. in 1963 the case of Selemani v. R., [1963] E.A. 442 (T) noted that the application of the section to criminal proceedings had not been argued before the Court, however the inclusion of the word "civil" in the section as enacted definately precludes its application. b. Judicial Notice. 59. No fact of which the court shall take judicial notice need be proved. ........ 60.(1) The courts shall take judicial notice of the following facts (a) all written laws, and all laws, rules and principles, written or unwritten, having the force of law, whether in force or having such force as aforesaid before, at or after the commencement of this Act, in any part of Kenya; (b) the general course of proceedings and privileges of Parliament, but not the transactions in its journals; (c) Articles of war for the Kenya Military Forces; (d) (deleted by L.N. 22/1965) (e) the public seal of Kenya; the seals of all the courts of Kenya; and all seals which any person is authorized by any written law to use; (f) the accesson to office, names, titles, functions and signatues of public officers, if the fact of their appointment is nofied in the gazette; (g) the existence, title and national flag of every State and Sovereign recognized by the Government; (h) natural and artificial divisions of time, and geogtraphical divisions of the world, and public holidays; (i) the extent of the territories comprised in the Commonwealth; (j) the commencement, continuance and termination of hostilities between Kenay and any other State or body of persons,

(k) the names of the members and officers of the court and of their deputies, subordinate officers and assistants, and of al officers acting in execution ofits process, and also of all advocates and other persons authorized by law to appear or act before it; (l) the rule of the road on land or at sea or in the air; (m) the ordinary course of nature; (n) the meaning of English words; (o) all matters of general or local notoriety; (p) all other matters of which it is directed by an written law to take judicial notice. (2) In all cases witin subsection (1) of this section, and alsoon all matters of public history, literature, science or art, the court may resort for its aid to approriate books or documents of reference. (3) If the court is called upon by any person to take judicial notice ofany fact, it may refuse to do so unless and until such person prduces any such book or document as it considers necessary to enable it to do so. If a fact is one of which the court may take judicial notice, as set forth in s.60, it need not be proved (s.59) as defined in subs. (2) and (3) of s.3. Judicial notice merely dispenses with proof, but the notice itself is not conclusive, and the fact may be disputed by the opposing party. SARKAR (pp.564 - 5) notes that the list of matters enumerated in s.60 is by no means exhaustive, it being impossible to make a complete list. "Moreover, the framer of the Act, Sir James Stephen himself, says in his Digest, `It may be doubted whether an absolutely complete list could be framed, as it is practically impossible to enumerate everything which is so notorious in itself, or so distinctly recorded by pubic authority that it would be superfluous to prove it' (Steph. Dig. notes to Art. 58)". The following are illustrative of instances in which the courts in east Africa have taken judicial notice of various facts:-

Commissioner of Customs v. S. K. Panachand, [1961] E.A. 303, 318 (C.A.), see p. 30 for discussion under s. 110 K.E.A.:It may be that the court might take judicial notice of the distance between Nairobi and The Hague and infer that the bringing of a witness to Nairobi from the Hague in relation to this particular case would be unreasonable." Katikiro v. A.-G., [1959] E.A. 382, (C.A.). "I think that the court is entitled to look at the whole agreement. Moreover, the 1955 Agreement was directed, by s. 2(1) of the Buganda Agreement Order-in-Council, 1955, to be published in the Uganda Gazette and it was so published. I think that on that ground we could take judicial notice of it: see the commentary on s. 57 of the Indian evidence Act (from which s.55 of the Uganda Evidence Ordinance is taken) in WOODROFFE & AMIR ALI'S LAW OF EVIDENCE (9th Edn.) at p. 489 and PHIPSON ON EVIDENCE (9th Edn.) at p. 23 and p. 349." Saleh Mohamed v. R., (1953), 20 E.A.C.A. 141. On laws in force:- (from p. 142). "Two points have been taken on this appeal:(a) That the Magistrate wrongly took judicial noice of the fact that that sugar was found in a prohibited area. ... The Appellate Court below dismissedthe first point on the ground that a Court is entitled to take judicial notice of all the Ordinances and Regulations enacted in Kenya. That is a correct applicaation of section 57 (1) of the Indian Evidence Act which applies to Kenya, viz:`The Court shall take judicial notice ... of all laws or rules having the force of law now or therefore in force, or hereafter to be in force. ...'

(Counsel) ... has argued, however, that declaration by the Governor of the Colony made in pursuance of section 14 of the Sugar Ordinance is neither an Ordinance nor a rule or regulation.

this submission cannot succeed because of the definition of

`Ordinance' in section 2 of the Interpetation and General Clauses Ordinance (Cap. 1, Kenya Laws, 1948). By that definition the term Ordinance is made to include `any order, proclamation, rule, regulation, or by-law made under the authority of an Ordinance: and in force'. It is impossible to argue that a notice published in the Gazette which declares certain districts in the Colony to be prohibited areas for the purposes of the Sugar Ordinance is not an Order issued by the Governor in pursuance of the authority bestowed on him by section 14." Note: this problem is alleviated by the words of s.60(1)(a) - "all written laws, and all laws, rules and principles, written or unwritten, having the force of law ...". The Interpretation and General Provisions Act (Cap. 2) no longer contains a definition or "Ordinance". Also on judicial notice of a Government Notice see Thurman Singh v. R.,

(1951), 1

T.L.R.(R) 345. As to whether a court may take judicial notice of customary laws, see Chapter of Determination of Customary Law, infra. Saleh Mohamed's case on "geographical divisions":"Under section 57(a) a Court shall take judicial notice of the `geographical divisions of the world' bt there is nothing else in that section which supports the Learned Judge's proposition (that a Magistrate was entitled to take judicial notice of the location of all towns and villages in Kenya.) We think, therefore, that it would have been better had the prosecution produced evidence as to the whereabouts of the place ... because it was ofthe eswence of this particular charge that the sugar had been found in the appellant's possession at a place which lay within a prohibited area." This view was, however, questioned by the Privy Council in Kuruma s/o Kaniu v. R., (1955), 22 E.A.C.A. 364, 366:-

"A report of (Saleh Mohamed's) case was not before the Board and their Lordships have no wish to criticize a decision that theyhave not read but with all respect to the Court of Appeal it appears to them that this was perhaps an unduly narrow view to take. We think it may well be that when an indictment alleges that a particular offence was committed at a particular place and no challenge or issue is raised at the trial on that point the cout may assume or at least take judicial notice that the place is situate where the indictment states it is or that the maxim omnia praesumuntur rite esse acta (that all things are presumed to have been done rightly) would apply". On judicial notice of "notorious" trade usages see C.A. Harilal & Co. v. Standard Bank Ltd., [1967] E.A. 512,516 (C.A.), supra, p. 139. Nazir Ahmed v. R., [1962] E.A. 345, 349 (C.A.) "It is relevant thatthe part of Magadi Road in question is remote, unfrequented and at a material distance from Nairobi, facts of which all Nairobi courtswould take judicial notice." Mwaitige v. R., [1961] e.A. 470 (C.A.) at pp. 474-475:"There was no evidence to show who produced the coffee, and likewise there was no evidence to show where the coffe came from. It might, for all that is known, have come from a district other than the Rungwe or Mbeya district. Learned Counsel has submitted that the Magistrate was entitled to takejudicial notice of the fact that if it hadnot come from the Mbeya district `the only place he could have got it is in the rungwe district'. There is no evidence to this effect and we do not agree that this is a matter of which judicial notice could be taken."

Ryde v. Bushell, [1967] E.A. 817, 821 (C,.A.0, in a case involving the requirements for a successful plea of Act of god, absolving a party from liability for damage suffered following performance of part of an obligation:"The judge merely described the coffee as being washed away by `heavy rains'. He made no finding as to its extraordinary nature, ... The defendant asks this court, which is a court of an agricultural country, to take judicial notice of the norma intensity of rainfa and of the eresive effect of heavy rain. I am prepared totake judicial notice in a broad way of both these facts; but I cannot do so to the extent of coming to a conclusion, unaided by any evidence, thatthe rainfall in question was of so extraordinary a naturethat it could not reasonably have been foreseen and that no precuations which the defendant could reasonably have taken would have prevented or reduced the effect ofthe rain." 1. Appropriate books and documents of reference. In addition to those instances involving books and documents which contain statements made under special circumstances (see discussion of ss. 37 - 41 and the Chapter on Documentary Evidence, infra), s.60(2), authorising the court to resort to appropriate books and documents of reference and the proviso to s.63(2) are relevant. 63.(1) Oral evidence must in all cases bedirect evidence. (2) ... Provided that the opinion of an expert expressed in any treatise commonly offered for sale, and the grounds on which such opinion is held, may be proved by the production of such treatise if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable. ........

A distinction must be made between situations where the court resorts to appropriate books or documents of reference which, under s.60(3) it may refuse to do unless and until the person calling upon the court to take judicial notice of a fact produces such book or document as it considers necessary to enable it to do so - and the use of treatises as expert evidence. The leading East African case on the subject is Sharmpal Singh v. R., [1960] E.A. 762 (C.A.). The Court, in determining the use to which medical treatises could be used under s.57 E.E.A.(s.60 K.e.A.) discussed the matter on p.770 as follows:"Under English practice and law of evidencethere is no doubt that medical textbooks are not evidence per se, though if passages from them are put to a medical expert he may refresh his memory from them or describe them as representing his own views. (citing authority)... Counsel for the appellant submitted thatunder the Indian Evidence Act ... greater latitude is permitted. Section 57 and s.60 of the Act were referred to. Section 57 enumerates a number of facts of which courts must take judicial notice and continues: (quoting subs. (2) of the present s.60) We do not think that this seciton, taken alone, would assist the appellant's argument. As is stated in the commentary upon it in SARKAR ON EVIDENCE (9th Edn.), p. 492: `But obviously, itcannot be meant that the court is to take judicial notice of all facts mentioned in all books of public history, literature, etc. Only books of accepted or recognized authority may be resorted to and for obtaining information regarding ohly undisputed and notorious facts.' On page 499 it is said:

`S.57 however does not intend to make books or documents of reference themselves evidence. What is obviously meant isthat the court may use the books of reference in appraising the evidence given and coming to a right understanding the conclusion upon it. It has been held that the court can dispense with evidence only of what may be regarded as notorious facts of public history.' The section is not intended, in our opinion, to enable or require a court, to solve for itselfby rference to textbooks, difficult and perhaps controversial questions in medical or other science." (emphasis added). The Court went on to discuss the use of treatises under s.60, noting that I.e.A. had changed the applicable English law:- (pp.770 "Section 60 of the Act however goes further and thereisunanimity among legal textbook writers on the subject that it effects a change from the English law. It should be read with s.45 which is as follows:(quoted) Section 60 so far asit is relevant reads: (quoted) The proviso last quoted has effected a change from the principles followed under English law. In WOODROFFE'S LAW OF EVIDENCE (9th Edn.), p. 516, is the following passage: `... The treatise in order to be admissible must be one commonly offered for sale, and the author of it must notbe producible within the meaning of the section. Strictly the burden of proving these facts will be upon the person who desires to give such treatise in evidence.

Section 45, ante, (s. 48 K.E.a.) refers to the evidence of living

witnessesgiven in court. this section makes scientific treatises and the like, commonly offered for sale, evidence, if the author be dead, or under any of the circumstances

specified in s.32 (s.33 K.E.A.), which render his poduction impossible or impracticable.'" The dangers of the over-free use of textbooks and treatises and their proper function was stressed in the following passage from Grande Venkata Ratnam v. Corporation of Calcutta, (1919), A.i.R. Cal. 822, 864, quoted by Court in Sharmpal singh's case on p. 772:"this section does not justify the court in treating the opinions or deductions of the authors of such books as evidence in the case whether to supplement or rebut that already given. Section 60 however allows the opinion of experts expressed in any treatise commonly offered for sale and the grounds on which such opinions are held, to be proved by the production of such treatises in circumstances which no doubt apply in the present case. The conclusion seems to be that books of reference may be used by the court on matters (inter alia) of science to aid it in coming to a right understanding of and conclusion upon the evidence given, while treatises may be referred to in order to ascertain the opinions of experts expressed in any treatise commonly offered for sale and the grounds on which such opinions are held, to be proved by the production such treatise s in circumstances which no doubt apply in the present case. The conclusion seems to be that books of reference may be used by the court on matters (inter alia) of science to aid it in coming to a right understanding of and conclusion upon the evidence given while treatises may be referred to in order to ascertain the opinions of experts who cannot be called, and the grounds on which such opinions are held. In these cases the direct evidence on the record, relating to the quality of the ghee in question consists of the sworn testimony of the analyst, which stands alone and uncontradicted. I think that we should be very careful to avoid introducing into the case extraneous facts culled from textbooks, and also to refrain from basing a decision on opinion, the precise applicability of which to the ghee in question is impossible to gauge. this is an error which was strongly condemned by the Judicial committee of the privy council in the case of Sajid Ali v. Ibad Ali. We may however usefully refer to these booksin order to comprehend and appraise correctly the evidence of the expert,

who has actually analyzed the ghee in question and gives on oath his opinion as to the result of such analysis. It would, I think, be dangerous to bas thedecision of the court solely on the evidence ofbooks whether for a conviction or an acquittal." As to the definition of "treatise", the Court at p. 773 refered to the SHORTER EXFORD ENGLISH DICTIONARY which defines the word as follows:"A book or writing which treats some particular subject; now always, one containing a methodical discussion or exposition of the principles of the subject; ..." and noted that the meaning was wide enough to include a book on a particular subject. All passages relied upon by the defence in a treatise should be put to the expert witness for the prosecution for his opinion; Singh's case, p. 773, noting the opinon of WOODROFFE, J,. in Ratnam's case, supra. Summary: 1. A treatise may be produced in court and passages there from will be admissible in evidence, provided that they are relevant, if: a. it is commonly offered for sale; b. the author is dead, or not producible owing to the amount of delay or expense which in the circumstances of the case the court considers

unreasonable.

The burden of proving these facts shall be on the person who desires the introduction of the evidence. 2. The function of treatises is to enable the court to understand and evaluate the evidence in the case.

3. If an expert witness for one party refers to as treatise to support his own conclusions, the treatise should be put to any expert witness for the other party to obtain his opinion of the opinions contained in the treatise.

ESTOPPEL: What are Estoppels? Estoppel refers to a rule of law whereby a party to litigation is stopped from asserting or denying a fact. It is a rule of exclusion which makes evidence improve or disprove of a fact inadmissible. There is said to be an estoppel when one is forbidden in law to speak against his own act or deed even though that person is trying to tell the truth. For that reason then Estoppel amounts to a disability which precludes parties from alleging or proving illegal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to the disability. Essentially at a conceptual level estoppel will stop a person from bringing in information, which should be at variance with actions that this person has engaged in before. Estoppel has different aspects. You can look at it from adjectival or procedure. The fact aspect is as a rule of evidence and in this capacity of adjectival procedural realm, it makes evidence inadmissible.

The second aspect which is still a rule of procedure is as a facet of the law of pleadings. The party who proposes to rely on estoppel must raise it in the proceedings. If the person fails to raise estoppel in the pleadings, it can amount to a waiver of the Estoppel. Moorgate Mercantile Co Ltd v. Twitchings [1975] 3 AER 302 This case is authority for the proposition that you must plead your estoppel. The Plaintiffs a finance company, were members of an organisation, HP Information Ltd (HPI), set up to prevent fraud in connection with hire-purchase agreements. Finance Companies would inform HPI of any hire purchase agreement that they had entered into in relation to a car so that in the event of a car dealer being offered a car for sale, the dealer could contact HPI to discover whether it was the subject of a hire-purchase agreement. The Plaintiff’s let a car on hirepurchase to M. By some unidentified mistake or oversight on the part of the plaintiffs, HPI were not informed of the agreement. M, falsely asserting that he was the owner of the car, offered it for sale to the defendant, a car dealer. The defendant contacted HPI, who informed him that the car was not registered with them. The defendant bought the car and later sold it. The plaintiffs sued the defendant for its conversion. A majority of the House of Lords held that the plaintiffs were under no legal duty to the defendant to register or to take reasonable care in registering with HPI the hire-purchase agreement in question and accordingly that an estoppel by negligence could not arise to prevent them from proving their claim against the defendant. The third aspect of estoppel is as a facet of substantive law and it can amount to a defence barring the plaintiff from proving some fact essential to his or her case. Our Evidence Act does not define Estoppel and the definitions of Estoppel that we have are drawn from case law and the original source of the word Estoppel which is drawn from French word which means stop! Law v. Bourveries [1891]3 ch. 82 The case illustrates Estoppel as a rule of evidence and cannot be used to found an action. Can only be used as a shield and not as a sword. It is a substantive right that can bar a plaintiff from bringing in a fact;

Some principles as to estoppel! 1

Estoppel has to be mutual or reciprocal and consequently has to bind both parties; A stranger can neither take advantage of nor be bound by Estoppel.

2

Estoppel cannot be used to circumvent the law so you couldn’t invoke estoppel to render an invalid act valid or vice versa.

3

Estoppels must be certain and this is to say that the statement which forms the basis of an estoppel should be precise clear and unambiguous. It should be incapable of being read in more than one way. It should lead a person to just one conclusion.

4

It is immaterial whether the makeup of the statement or the representor believes it to be true or false i.e. if you make a reckless statement which lead people to make reckless statements to their detriment, you will be estopped.

5

The representation which is the basis of an estoppel must be a statement or representation of fact which existed in the past or is existing at the time of the making of the statement or representation. It should not be a promise in futuro

6

It is not essential that intention to deceive or defraud must be there for estoppel to be there. Suffice it that you made the representation and a person has changed their statement then estoppel will arise.

The effect of estoppel is to bind a party and to prevent them from relying on certain facts and denying certain facts. A good example is the case of Moorgate V. Twitchings where an owner of property entrusted his property to the care of another person. By his conduct that other party had albeit unintentionally by his conduct led a third party to believe the owner had no title to the property. The third party acted in reliance to that belief and the owner was held estopped from asserting his title against that third party who had acted in the belief that the owner had no title because of the representation through conduct of the owner who had been left in charge of property. This person acted on the best evidence that he had. Only the person in charge of the property would have known better. And the court held that the owner was estopped from

CRABB V. ARUN District Council 1976 1 Ch 179 The plaintiff owned a piece of land which had access at point A on to a road owned by the defendants. And the Plaintiff also had a right of way from that point A along this road. To enable him to sell his land in two parts, the plaintiff sought from the defendant a second access point and he also wanted a further right of way from point B. at a site meeting held between the plaintiff, his architect and a representative of the Defendant, the additional point B was agreed to. Subsequently the defendants fenced the boundary between their road and the plaintiff’s land erecting gates at B and A. after the Plaintiff sold part of his land together with the right of access at A and also going with the right of way onto the road, the defendants removed the gates at B and fenced the gaps. Essentially that blocked the links between A and B the Plaintiff sued for a declaration and injunction claiming that the Defendants were estopped by their conduct from denying him a right of access at B and a right of way along the road. The trial court held that in the absence of a definite assurance by the defendant no questions of estoppel could arise. There were no assurances that he would forever have the right of way at B. consequently the plaintiff’s action was dismissed. On Appeal by the plaintiff, it was held that 1

The defendants knowing the plaintiff’s intention to sell his land in separate portions by their representations led the Plaintiff to believe that he would be granted a right of access at B and by erecting the gate and failing to disabuse him of his belief encouraged the plaintiff to act to his detriment.

2

Equity should be satisfied by granting the plaintiff a right of access at B and a right of way along the road.

3

In view of the sterilization of the plaintiff’s land for a considerable period resulting from the Defendant’s acts, the right should be granted without any payment by the Plaintiff.

There are 4 general classifications of Estoppel 1

Estoppel by Record

2

Estoppel by Deed

3

Estoppel by Agreement

4

Estoppel by Conduct.

ESTOPPEL BY RECORD Arises mostly out of judgments and is predicated on the premise that in the interest of the public there should be an end to litigation. It is important that once a matter is adjudicated upon, parties do not live in fear of its being subsequently resurrected. After a judgment has been announced by a court of competent jurisdiction, the unsuccessful party cannot challenge this judgment by raising the same point in another action against the successful party. The prerequisites for there to be estoppel by record is that the matter should have been adjudicated by a court of competent jurisdiction and a matter adjudicated upon by a court of competent jurisdiction cannot be reopened. Records refer to both proceedings and judgment and for estoppel to arise the judgment has to be impeachable so estoppel or record arises when an issue of fact has been judiciary determined in a final manner between the parties by a competent court and the same issue comes directly in question in subsequent proceedings between the same parties. For the purposes of Estoppel by Record judgments are divided into two. 1

Judgments in rem

2

Judgments in personnam

A judgment in rem is an adjudication on the status of a person or a thing and examples of judgments in rem will be judgments in divorce proceedings, probate proceedings, bankruptcy proceedings. All these have implications for the status of persons or things. Section 44 (1) of the Evidence Act defines judgments in rem. Essentially the judgments are conclusive proof of the matters they adjudicate against all persons in the world. Not as against any specified persons but absolutely. And as between parties to the suit it is conclusive evidence for the reasons for the decision.

Judgments in personam are those that do not fall within the definition in S. 44 i.e. do not affect the status of person or thing e.g. judgments involving contracts or torts. They are conclusive proof as to the matters adjudicated upon and the reasons for the judgment between the parties to the proceedings. They do not bind the whole world but only the parties to the proceedings. Both judgments in rem and in personam give rise to 2 kinds of estoppels 1

Cause of Action Estoppel

2

Issue Estoppel

Course of action, once an issue has been adjudicated the same persons cannot bring it up again Course of Action Estoppel is based on the notion that a course of action is dealt with on a judgment and so parties to the action will be prevented from asserting or denying as against what was found so if a particular course of action was found to exist or not to exist, the same parties will not be allowed to revisit the same issue. But note that it should have been the same parties. Parties can be injured by the finality of this course of action.. a good example is the case of CONQUER V. BOOT [1928] 2 KBR 336 In this case the plaintiff had received decision on a course of action arising out of the defendant’s breach of a warranty to build a house in a good and workman like manner. It was held that the plaintiff was estopped from making a claim for further loss (the plaintiff had already been paid damages) by reason of same breach of warranty which he had suffered subsequent to the original litigation. PURSER V. JACKSON [1977] QB Where a contract provides for arbitration in respect of disputes as and when they arise an earlier submission to arbitration does not prevent the submission to arbitration of a dispute which subsequently arises. The earlier submission operates as an estoppel only in respect of the matters

which it actually covered. If parties agree that they will submit their grievances when they arise the fact that you have given the matter to arbitration. The estoppel operates only as estoppel on matters that were covered in the pleadings so you could still bring other matters. There are 3 main distinctions Issue Estoppel applies only to the issues raised and actually determined in the earlier proceedings. It cannot arise where a party has come into possession of fresh evidence. With regard however to course of action estoppel it can actually apply not just in respect of matters that a court was called to decide upon but also matters which the plaintiff exercising due diligence or reasonable diligence could have brought forward against the defendant. All matters or claims against the defendants which the plaintiff exercising diligent powers could have brought forward. Only these will form the basis of the Estoppel. Whether it be issue estoppel or course of action estoppel the requirement of estoppel by record are the same apart from the nuances that you go to stay a final judgment, same parties litigating in the same capacity and same issues. When you talk of same parties estoppel only operates when the parties are the same as the parties in the original suit. It does not have to be them in person but it could also be their agents. TOWNSEND V. BISHOP [1939] 1 AER 803 A plaintiff claimed damages for injuries he sustained while driving his father’s car which collided with the defendant’s lorry. In earlier proceedings brought by the father against the defendant, in respect of the damages to the car the defendant had succeeded on a plea of contributory negligence on the part of the son who had been active as his father’s agent. The law at that time was that contributory negligence was a complete defence.

On a plea by the

defendant or course of action Estoppel it was held that the parties to the 2 actions being different, the plaintiff was not estopped from denying his contributory negligence.

SAME CAPACITY An Estoppel by record can only arise where parties to the proceedings litigate in the same capacity as they did in their previous proceedings.

Marginson v. Balckburn [1939] 2 KB 726 There was a collision between Marginson’s car driven by his wife as his agent and an omnibus driven by Blackburn servant. Marginson’s wife died, Marginson was injured and several houses were damaged as a consequence of the accident. Owners of the houses succeeded in an earlier action for damages against Marginson and Blackburn.

It was held that both Marginson and

Blackburn were vicariously liable for the negligence of their respective drivers who were adjudged equally to blame. Estoppel was alleged and it was held that Marginson was estopped from denying his wife’s contributory negligence in relation to the claim. As her personal representative he was not stopped from denying her contributory negligence because he appeared in a different capacity from that which he had litigated before. Finally on same issues, Estoppel will only operate if the issue with the proceedings in question is the same in that which was pleaded. The court will refer to the pleadings argued and reasons given for the judgment. Randolph V. Tuck [1962] 1 QB 175 MILLS V. COOPER [1967] 2 Q.B. 459 HENDERSON V. HENDERSON [1843 – 1860] AER 310 LIMITATIONS TO ESTOPPEL BY RECORD 1.

Matrimonial Cases:

Matrimonial causes are not entirely adversarial. Essentially

estoppels in a matrimonial cause will bind the parties to the matrimonial cause but not the court.

Thomson v. Thomson: Lord Denning “Once an issue of a matrimonial offence has been litigated between parties and decided by a competent court, neither party can claim as of right to reopen the issue and litigate it all over again if the other party objects. However the divorce court has the right and indeed the duty in a proper case to reopen the issue or to allow either party to reopen it despite the objection of the other party.” If the party objects to reopening of the case, one could not open the issue without going to court. In criminal cases the course of action estoppel will be pleaded by the plea of autre fois acquit (accused was previously acquitted) and autre fois convict (accused was previously convicted). An accused is estopped from denying his guilt or wrong in a subsequent trial where guilt issue arises. This is provided for in Section 47 (a) Robinson V. Oluoch Queens Drycleaners V. East African com et al In both these cases the court emphasized that in civil and criminal proceedings, the accused is estopped from denying the conclusive nature of his conviction i.e. if an accused is found guilty of dangerous driving, then a subsequent suit if filed for negligent behaviour the accused is estopped from denying. A judgment in a civil case is not conclusive proof of matters decided in a criminal case. It would be admitted as relevant to the issue but standard proof will be much higher.

ESTOPPEL BY DEED:

The principle underlined here is that persons who make solemn assertions or engagements under seal must be bound by those engagements. Parties to a formally executed and sealed deed and their privies by any evidence which is less formal and solemn. This Role is subjected to: 1

It only applies between parties of privies to the deed and only in proceedings on the deed.

2

No Estoppel will arise upon recitals or descriptions which are immaterial or not intended to bind (there will be instances where a recital …)

3

No Estoppel arises where deed is tainted with fraud or illegality.

For a recital to a deed to form the basis of estoppel by deed, it has to contain: 1

Unequivocal statement of facts;

2

There has been a contract as a result of the unequivocal statement;

3

The statement is from both parties;

4

There has to be an action arising from it.

East Africa Power & Dandora Quarries The Late Justice Channan Singh considered recitals for the basis … “A recital especially one relating mainly to the history of the relationship and reasons for entering into an agreement, is not a term of a contract although it arises of ambiguity in the operative part a recital may be used to resolve the parts of that ambiguity.” The Plaintiff sued the defendant on a mini consumption agreement for the supply of electricity under which the defendant undertook to pay the minimum annual charge of KShs. 12,840/- for a period of 46 months beginning 1st January 1965. The defendant did not dispute the agreement but claimed that it was void and unforceable for the following reasons:

1

There was no consideration;

2

It was illegal and not in accordance with the charging provisions of the Electric Power Act;

3

Plaint disclosed no cause of action because the plaintiff had at the material time no licence under the said Act;

4

The Plaintiff argued that the Defendant was estopped from denying the consideration which was stated in the Agreement as being a request by the defendants that the Plaintiff company should carry out certain works towards the installation of an electrical energy supply in return for which the defendant agreed to sign the minimum consumption agreement.

The defendant challenged the Evidence of the plaintiff in regard to a licence to generate or supply electricity. As a matter of fact the plaintiff did not remit original licences or renewals of the licence. The court held that there was no estoppel operating to prevent the defendant from challenging the considerations stated in the recitals to the Agreement but on the Evidence that the plaintiff had shown that there was good consideration. And also there was no evidence to rebut the presumption that the licence granted to the Plaintiff company had been renewed at the proper time, place and proper procedure. (presumptions of regulation). Grier V. Kettle Judgment of Judge Russell on recitals as the basis for Estoppel. ESTOPPEL BY AGREEMENT This is a rule of evidence whereby two or more persons have expressly or impliedly agreed that their legal relations shall be based on the assumption that a particular state of facts exists. Those parties are precluded from denying the existence of the assumed facts. An example of this kind of Estoppel is found in S. 121 of the Evidence Act the Estoppel of a tenant or a licencee. It says

that no tenant is allowed to deny that at the commencement of the tenancy that his landlord had title to the property. The section deals with both estoppel of tenant and estoppel of licensee. Rodseth V. Shaw [1967] This involved a tenancy for residential tenancy and when the landlord gave the tenant notice to quit at a particular time, the tenant sought to introduce circumstances that had prevailed ten years prior to the commencement of the lease which circumstances incapacitated the landlord from leasing out the premises. What in effect the tenant was saying was that the landlord never had title and could not have leased out the The court held that a tenant cannot deny that the landlord had title to grant the lease at the commencement of the tenancy if he accepts the agreement or in other words becomes a persons tenant then he is deemed to acquiesce in the landlord’s want of title. Ravi Bin Mohammed v. Ahmed [1957] E.A. 782 Ahmed was a subtenant and he managed to buy the premises for which he was a sub tenant. The tenant of the main landlord continued asking Ahmed for rent and the question arose as to whether the first tenant could insist on getting rent from Ahmed on the basis of S. 121. The court held that NO that first tenant could not continue asking Ahmed for rent because Ahmed was not estopped from pleading and proving that his landlord’s title had been determined. In the words of the Court Estoppel prevents a tenant from disputing a landlords title at the time of granting the lease not subsequently thereafter. That fact is borne out of the wording of Section 121 to the effect that … “No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had at the beginning of the tenancy a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that such person had a right to such possession at the time when the licence was given.”

NO PERSON WHO CAME UPON ANY IMMOVEABLE PROPERTY BY THE LICENCE OF THE PERSON THEREOF SHALL BE PERMITTED TO DENY THAT SUCH A PERSON HAD A RIGHT TO SUCH PROPERTY. A Licensee will not be allowed to deny that the licensor had the right to the property to which the licence was granted. (Licence is the relationship between a licensor and licensee) Under S. 122 - there is the Estoppel of Acceptor of a Bill of Exchanged S. 122.

“ No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority to draw such bill or to endorse it: Provided that the acceptor of a bill of exchange may deny that the bill was in fact drawn or endorsed by the person by whom it purports to have been drawn or endorsed.”

It is to the effect that no acceptor of a bill of exchange shall be permitted to deny that the drawer had authority to draw such a bill or to withdraw such a bill or to draw it. The Acceptor is the financial institution and the drawer is the person that writes out the bill of exchange or other negotiable instrument. It is important to point out that the Bank or Financial Institution can deny the fact that the cheque was drawn by the right person, but the acceptor should not deny the drawer the right to draw. If the Bill of Exchange is a forgery it is upto the bank to prove it. S. 123 deals with a variety of estoppels by agreement. The one being between the licensor and licensee, bailor and bailee, principal and agent. No licensee is permitted to deny that the licensor had a right to possession of property when the licence was given. Under this section no bailee will be permitted to deny that the bailor was entitled to the goods at the time he entrusted them to him. If you are a bailee you will not be allowed to deny that the bailor was entitled to the goods when they were given to you. The bailee can however show that he was compelled to deliver the goods to a person who had a right to them as against the bailor. The bailee can also show that the bailor without the bailee’s notice obtained notice from a third party who has now claimed the goods from the bailee (in case of a court order where the goods have been contested and the person with a superior right may have given the bailor notice that they will collect the goods and

if the notice is not contested then they can have the goods). There can be third parties who can have superior titles to that of the bailor. PRINCIPLE & AGENT ESTOPPEL This is to the extent that if you are an agent to whom any goods have been entrusted, you will not be permitted to deny that the principal was entitled to the goods at the commencement of the principal/agent relationship. This is provided for in S. 123. If one is an agent and a person with a superior title gets and order you may be compelled to give the goods to the third party. ESTOPPEL BY CONDUCT The conduct should be such as to cause or permit a person to believe a thing to be true and the person must have acted in some way on this belief. That person must have acted in that belief either in doing or omitting to do something thereby altering his position to his detriment. Hopgood v. Brown [1955] 1 ALL ER 450 In this case the Judge said “where one person the representor has made a representation to another person the representee in words or by acts or conduct or being under a duty to speak or act by silence or inaction with intention actual or presumptive and with the result of inducing the representee to alter his position to his detriment the representor in any litigation which may afterwards take place between him and the representee, the representor is estopped as against the representee from making or attempting to establish by evidence any averment substantially at variance with his former representation if the representee at the proper time and in the proper manner objects thereto. It is important to compare Lord Evershed statement with what is contained in S. 120 under this section one need not have acted to their detriment, suffice it that they acted. The requirement for estoppel by conduct can be summarised as follows

1.

Representation must be made with the intention that it be acted upon, it must be a wilful intention.

2.

Under the Rule in Hopgood it would go further where you are under a duty to speak, act or take care, if you make a negligent statement you will be estopped from denying the statement’s truth or if you are under a duty to act and you don’t take any action then you would be estopped. You could make a positive representative in the sense that you were expected to act or speak and you didn’t. This failure would be what people relied on and it could give rise to estoppel.

Greenwood V. Martin’s Bank [1933] A husband and wife had a joint account in Martins bank and the bank undertook to honour cheques signed by both signatories. Afterwards the account was closed and an account opened in the sole name of the husband the wife having no authority to draw cheques on that account of the husband. During all this time the wife repeatedly forged her husband’s signature to the cheques and drew out money which she applied to her own uses. The husband became aware of these forgeries but was persuaded by the wife to say nothing about them. He kept quiet for 8 months when he finally decided to report the forgeries. The wife committed suicide. The husband then brought a suit against the bankers to recover the sums paid out of the sole account on cheques to which his signature had been forged. The court held firstly the Plaintiff owed a duty to the defendant bank to disclose the forgeries when he became aware of them as this would have enabled the bank to take steps to recover the money wrongfully paid to the wife. Secondly, through his failure to fulfil this duty, the bank was prevented from bringing an action against the plaintiff and his wife for the tort committed by the wife and thirdly, he had only brought the matter forward after the death of the wife. The plaintiff was estopped from asserting that the signatures from the cheques were forgeries and consequently he was not entitled to recover the money that he was seeking from the bank. The second requirement is that the representation must be clear and unambiguous. This is to enable the parties to exactly know the import of the situation.

Century Automobiles v. Hutchings Biemer [1965] One of the statements made is that the level of precision should not be a lawyer’s statement. The representation must be one of fact. Fourthly the representation must not have the effect of sanctioning something prohibited by law. Income Tax Commissioners v. A.K. [1964] The Judge pointed out that no estoppel whatever its nature can operate to annul statutory provisions because it is statutory duty to obey the law. Chatrath v. Shah [1967] where it was stated that the doctrine that there can be no estoppel against a statute simply means that an estoppel cannot render valid something which the law makes invalid so that if a statute declares a transaction to be invalid or expressly declares that something should not be done, then estoppel cannot be used to override the specific directions of the law. PROMISSORY ESTOPPEL: Promissory Estoppel is an exception to the general rule. It deals with the future state of affairs and occurs where a person makes a representation to another about the state of their future legal relations or their future conduct and the other person acts upon that. In this instance, an equitable estoppel arises such that the representor is estopped from denying the representation. Nurdin Bandali v. Lombank Tanganyika Ltd. In this case a lorry was bought on hire purchase terms. Buyer was late in one of the payment but when he later presented the money to the seller, it was later accepted. Just before he completed paying off the sums owing on the lorry, he was again late in depositing the payments. The Hire Purchase company seized the lorry and sought to sell it to recover the unpaid balance. The question arose as to whether the sellers had by accepting payments late waived their rights under

the Hire Purchase Agreement. Consequently was the Hire Purchase Company estopped from falling back on the Hire Purchase Agreement. It was held that no waiver or estoppel arose on the facts of the case. But the court recognised that promissory estoppel did indeed exist in East Africa in the Judges view, the word thing, used in S. 120 was capable of wide interpretation and could comprise an existing state of affairs, legal relationships or future conduct. And in stating that, the Court relied on the High Trees case Central London Property Trust Ltd. V. High Trees House Ltd [1947]KB 134 In this case, by lease under seal dated September 24th 1937 the Plaintiff let to the defendant a block of flats for a term of 99 years with effect from 29.9.1937 at a rent of £2500 per annum. Owing to the second world war, in the early part of the 1940’s only a few of the flats were let, and it became apparent that the defendant would be unable to pay the rent reserved. After negotiations between the directors of the two companies, on 3rd January 1940, a letter was written by the plaintiff to the defendant confirming that the rent for the premises would be reduced from £2500 to £1250 essentially by half as from the beginning of the term. The Defendant paid the reduced rent. By the beginning of 1945 all flats were let out and in September of 1945 the Plaintiff wrote to the Defendants claiming that rent was payable at the rate of £2500. Thereafter, the Plaintiff initiated some friendly proceedings to claim the difference in rent for September to December 1945 quarter. In their defence the defendants pleaded that the agreement for the reduction of rent operated for the whole term of the lease and the plaintiff was estopped from demanding rent at the higher rate. It was held that where parties enter into an arrangement which is intended to create legal relations between them and in pursuance thereof one party makes a promise to the other, which he knows will be acted upon, and which infact is acted upon by the promisee, the court will treat the promise as binding on the promisor to the extent that it will not allow him to act inconsistently with it even though the promise may not be supported by consideration in the strict sense. The effect of the arrangement may be to vary the terms of the contract under seal by one of less value. The second holding was that the arrangement between the parties in 1945 was one which fell within the first category, i.e. where you made a promise and were bound by the promise and so the agreement of the promise was bound on the promisee but it only remained operative so long

as the conditions giving rise to it continued to exist and once those conditions ceased to exist in 1945 the plaintiffs were entitled to recover the full rent claimed at the rate reserved by the lease document. In Century v Hutchings the issue of promissory was also discussed (a)

There must be a clear and unequivocal representation.

(b)

There should also be an intention that it is acted on.

(c)

There has to be action upon the representation in the belief that it is true.

Authorities are not in agreement but essentially that estoppel could be a principle of procedure and it could have aspects of substantive law where it could debar a person from raising a defence open to them. So you can have estoppel as a rule of procedure or as substantive law. The case of Law v. Bouvaries Estoppel is perceived as an aid to prove not as being essentially a principle on which you could found a case but in Canada v. Dom the court felt that Estopel could be viewed as substantive rule of law. Combe v. Combe discusses these elements on what the place of estoppel in law is, is a rule of evidence or substantive law.

ESTOPPEL (Note: This Chapter does not cover estoppel by record (res judicates), dealt with under the discussion of judgments, infra.) “Estoppel is a rule whereby a party is precluded by some previous act to which he was party or privy from asserting or denying a fact. It is rule of exclusion, making evidence of a relevant fact inadmissible.” PHIPSON, p.83 This general definition of estoppel, and the circumstances under which a party may be “estopped”, are set forth in s.120 K.E.A.

The equivalent

sections in the other enactments are s.115 I.E.A. and Z.E.D. 120.When one person has, by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. There are four general classifications of estoppel: Estoppel by record (see not above) Estoppel by deed Estoppel by agreement (see ss.121 – 123, infra) Estoppel by conduct, also called “common law estoppel.”

In addition, there has developed in recent years a doctrine of “promissory estoppel”,the exact limits of which have not yet been defined, which is discussed under the section dealing with estoppel by conduct. One of the difficulties encountered in considering estoppel in East Africa is the tendency of Courts to deal with the doctrine without specific reference to the applicable sections of the various Evidence Acts, but to rely instead upon reported English decisions even though the doctrine as enacted originally in s.115 I.E.A. was drawn from Pickard v. Sears , (1837), 6 A. & E. 469. For example, in Abdulali Jiwaji v. Pandya, [1958] E.A. 523. 523 (U), the Court, after referring to English decisions, said:“In my opinion, although the definition of estoppel in our ordinance differs slightly from the meaning expressed in the judgments referred to in the above quoted case I think we should be guided thereon by the English decisions. (Here the Court had made reference to s.113 U.E.O.). If this is a course adopted purely for guidance, viewing the English decisions as persuasive, but not binding, it is undoubtedly justified, but if the terms of the Acts are at variance with the English decisions, the Acts must prevail. Another example, illustrative of the difficulties of research on the subject, is Mulji Jetha Ltd. V. I.T. Comr., [1967] E.A. 50, 59(K). Here the Court said:“.. no material distinction is to be drawn between the principle as illustrated by the English decisions to which I have had occasion to refer and the principle as applicable in Kenya.” Without ever making reference to s.120 into which the principle (here, equitable estoppel) had been incorporated by Nurdin Bandali’s case, see below. At best, this procedure hinders research, and it is well to keep in mind in preparing judgments where estoppel, or any other evidence question is involved, that :

“ the Evidence Act is designed to cover the whole field of the law relating to evidence ” as was stated by NEWBOLD, J. However since the rules governing estoppel in England and East Africa are substantially identical, the law as set forth herein can all be incorporated within he meaning of the applicable K.E.A. sections. The distinction between estoppel and waiver NEWBOlD, J. in Nurdin Bandali v. Lembank Tanganyika Ltd ., [19.. 304 (C.A) at p.314 set forth the difference between estoppel, which is a rule of evidence, and waiver, which is based on contract:-

“ the distinction between waiver and estoppel should be clearly appreciated. Waiver is based on a contract, express or implied, between the parties. Thus it arises from a term, express or implied, of a contract, and before any such term can exist a valid contract must be established. If it is found that a contract is established and it contains such a term, then that term, like any other term in a contract, may found a cause of action. Estoppel, on the other hand, is primarily a rule of evidence whereby a party to litigation is, in certified circumstances, prevented from denying something which he had previously asserted to be true. Estoppel, whether at common law or equity, can never found a cause of action, though it may enable a cause of action, which would otherwise fail, to succeed. The difference between waiver and estoppel is set out in the judgment of the Privy Council in Dawson Bank Ltd. V. Japan Cotton Trading Co. Ltd . [(1935) A.L.R.. P.C. 79, 82] as follows: ‘Estoppel is not cause of action. It may (if established) assist a plaintiff in enforcing a cause of action by preventing a defendant from denying the existence of some

fact essential to establish the cause of action, or (to put it another way) by preventing a defendant from asserting the existence of some fact the existence of which would destroy the cause of action. It is a rule of evidence which comes into operation if (a) a statement of the existence of a fact has been made by the defendant or an authorised agent of his to the plaintiff or someone on his behalf, (b) with the intention that the plaintiff should act upon the faith of the statement, and (c) the plaintiff does act upon the faith of the statement. On the other hand, waiver is contractual, and may constitute a cause of action: it is an agreement to release, or not to assort a right. If an agent, with authority to make such an agreement on behalf of his principal, agrees to waive his principal’s rights, then (subject to any other question such as consideration) the principal will be bound, but he will be bound by contract, not estoppel. There is no such thing as estoppel by waiver.’ ” The distinction between common law estoppel and equitable estoppel. The Indian Evidence Act did not incorporate the doctrine of equitable, or promisssory estoppel, also called estoppel in pais, and a case within s.115 I.E.A., i.e. the elements of a common law estoppel, were set forth in Jotha Ismail Ltd. V.s Somani Brothers, [1969] E.A. 26 (C.A) at pp.29 – 30, quoting from SARKAR (9 th Edn., p.913, now found in the 11th Edn. At p.1025):“(1)There must be a representation by a person or his authorised agent to another in any form - declaration, act or omission. (2) The representation must have been of the existence of a fact and not of promises de futuro or intention which might or might not be enforceable in contract. The doctrine of equitable estoppel clearly applies in Kenya.

In

Century

Automobiles v. Hutching Biemer Ltd., [1965] E.A. 304, 320 (C.A.), the Court said:-

“There can be no doubt that the doctrine of equitable estoppel applies in Kenya. There is the clearest authority on Nurdin’s case. It is true that the judgment in that case dealt with the law of Tanganyika but the reasoning applies with equal force in Kenya.” Along a similar line, HARRIS, J. in Mulji Jetha Ltd., supra, at p.59 of the decision noted that the doctrine of equitable estoppel as innunciated in 1877 in Hughes v. Metropolitan Railway Co., (1877) 2 App. Cas. 439, is numbered among the doctrines of equity imported into Kenya by the East Africa Order in Council, 1911, but the doctrine has now clearly been brought within the ambit of s.120 K.E.A. by virtue of the above authority. Note, however, as was said in Nurdin’s case at p.319:“In the case of an equitable estoppel, however, the right has never been removed from the contract, but the owner of the right is prevented on equitable grounds from exercising it.” Defence of estoppel must be pleaded. In Balwant Singh v. Kipkoech arap Serem [1963] E.A. 651 (C.A.)the court said:“ the facts giving rise to these pleas [either waiver or estoppel] are material facts and should be pleaded (see Order VI, rules 1 and 5).

There is however, this

difference between the two pleas: Wavier gives rise to a cause of action and if the claim is based on waiver the facts should be pleaded in the plaint; but estoppel merely enables an independent cause of action to succeed by preventing a sentence from being raised and thus the facts relating to estoppel would normally be pleaded in the reply and not in the plaint.” See also comment referring to the above case in Jinabhai and Co. v. Eustace Sisal Estates [1967] E.A. 153, 136 (C.A.).

On occasion, defects in the pleadings have been noted, but a decision still reached that the pleadings were sufficient to raise estoppel, e.g. Dukhiya v. Standard Bank of S.A.,[1959] E.A. 958 (C.A) at pp.969 – 970:“The only fact necessary to estoppel which was not pleaded is that the appellant relied upon an assurance from the respondent that the credits had been effected. When the issues were framed by consent, Issue No.6 was put in terms sufficiently wide to embrace almost any defence but it must of course be read in the light of the pleadings.

To my mind the defect of pleading is not a

substantial one and only if the pleading of the missing allegation of fact would have altered in some way the presentation of the respondent’s case or its counsel’s approach to the evidence..

do I think the appellant should be

debarred from relying on the defence ”. See also Balwant Singh’s case, supra where there was a defect, but the case was conducted as if the plea existed, and the court did not think that the appellant was prejudiced in any way. (p.654 of the decision.) If the situation does not involve estoppel, even thought the situation is similar in nature, confusion on the issue of pleading should be avoided. In Vaburgam Soni v. Dasturi Ram, for example (1938), 19 K.L.R(1) 21, there was a dispute on a settlement of account, and the respondent, after the disagreement, sent a cheque for 1100/ to the appellant, with a letter stating it was “in full and final settlement” of the transaction. The cheque was presented for payment and paid without communication from the Appellant, who later filed a civil suit for the full amount less the amount paid. The Court held that the magistrate was entitled to hold as a fact that the appellant had, by his conduct, accepted the cheque in full and final settlement, but that it was not necessary for the respondent to have pleaded estoppel because he was relying on an agreement to accept the cheque and not on any estoppel, as he has not changed his own previous position or been prejudiced by anything the appellant had done.

No estoppel on a point of law. Although admissions generally may act as estoppels, see s.24 K.E.A., an estoppel cannot be founded on an admission of a point of law; see Nayar v. Sterling Insurance Co., [1966] E.A. 144, 153 (K); Jetha Ismail Ltd. V. Somani Bros., [1960] E.A. 26 (C.A.) at p.30. No estoppel against statute or exercise of statutory discretion. The Court in Mchanlal Thakrar v. Pinbhai Lalji,[1963] E.A. 497 (u) at p.502 quoted the commentary from WOODOFFE AND AMEER ALI ON THE LAW OF EVIDENCE APPLICABLE TO BRITISH INDIA (9th Edn.), p.831:“It is an absolutely fundamental limitation on the application of the doctrine of estoppel that it cannot be applied with the object or result of altering the law of the land. The Law, for instance, imposes fetters upon the capacity of certain persons to incur legal obligations and particularly upon their contractual capacity. It invalidates and renders null and void certain transactions on the ground that they are illegal. It attaches certain incidents to property as, for instance, by prescribing the mode in which it shall be transferred. This general law is in no way altered by the doctrine of estoppel. It is not allowed to enlarge the status or capacity of parties, nor to be a clock for illegality; nor to alter the incidents of property. The admission exacted must always be of something which can legally be done by the party from whom it is exacted.” Here the plaintiff/tenant sued for the return of an illegal payment on the grounds that he was not in pari delicto with the defendant, and it was submitted that he was estopped from raising the question of illegality. The submission was, however, denied on the basis of the above authority on the grounds that the payment was illegal, and, impliedly, that to apply the doctrine would alter the law.

The rule that there is no estoppel against the exercise of a statutory discretion has been applied in two recent cases. In Income Tax Comr. V. A.K., [1967] E.A. 648 (K) an income tax assessor agreed to accept late notice of objection to reduce the income assessed to an agreed sum and to issue amended notices of assessment. The Commissioner, however, repudiated the agreement and filed an .. for recovery of unpaid income tax, additional tax and penalties based on the original assessments. Among the defences was the submission that the Commissioner was estopped from relying on the original assessments. In denying the submission that Court said at pp.652-653:“

I understand the law to be that no estoppel, whatever its nature, can operate to annual statutory provisions and a statutory person cannot be estopped from performing his statutory duty or from denying that he entered into an agreement which it was ultra vires for him to make. A statutory person can only perform acts which he is empowered to perform.

Estoppel cannot

negative the operation of a statute and it is a public duty to obey the law. It is therefore not necessary to consider in detail the various authorities to which counsel for the plaintiff has referred legally illuminating though they are except to say that generally speaking they decide whether the act complained of which was performed or refused to be performed was within the scope of statutory powers (I think the question on which the court must consider is whether estoppel which is claimed in this case will do violence to statutory provisions.” Under the facts of the particular case, the Court held that the Commissioner was estopped in that he was not being asked to do anything which was in violence of his statutory powers; see pp.653 – 654. In Tarmal Industries v. Customs and Excise Comr., [1968] E.A. 471 (T), (decision of the Court of Appeal reported commencing p.484), the company, to overcome problem of deterioration of componants imported for the manufacture of soap, imported a substitute. A sample was sent to the Commissioner for examination

for a ruling whether it could be imported duty free. Apparently without making any analysis the Commissioner ruled by letter that it was duty free, and later confirmed the ruling by a separate letter. Subsequently a sample was analyzed and a ruling was made that it was, in fact, subject to customs duty. The Company refused to pay the customs claimed in the proceeding. On of the issues was whether the Commissioner was estopped by his initial decision that the substance was not dutiable, or whether he was bound to correct the matter and levy duty on the basis that the subtance had always been dutiable. [The appeal was unconnected with estoppel, but L.W, J.A. said at p.495 that although estoppel had been a ground of appeal it was not pressed by counsel, whom the Court understood to concede that the decision of the High Court on the issue was correct]. In defining the fast situation to which the estoppel argument in the High Court was applied, the Chief Justice clearly stated that the issue was limited to the application of the doctrine to statutory enactments by saying (p.480):“I am satisfied that the Commissioner made the refpresentation. I am satisfied that the defendant company acted on that representation and that the Commissioner knew that they would have so acted. I am also satisfied that as a result of so acting they would suffer loss if called upon now to pay the duty claimed by the Commissioner. In other words, I am satisfied that this is a case under which in normal circumstances the doctrine of estoppel would apply.” After quoting extensively from the leading English case of Martime Electric Co. Ltd v. General Dairies Ltd.,[1937] 1 ALL E.R. 748 and Southend –on-Sea Corporation v. Hodgson (Wickford)Ltd., [1961] 2 ALL to the facts of this case as follows: “In this case there is a statutory duty imposed on the Commissioner of Customs and Excise by s.105 of the East African Customs Management Act 1952. It is the duty, where the goods can be reasonably classifiable under two or more names, classes or descriptions, to classify them under the name, class

or description which results in such goods being liable to duty or being liable to the higher or highest rate of duty, as the case may be .  The fact that he failed to do so, on the authorities above cited, cannot stop him from carrying out his duty when he discovers the original error.

Indeed, his earlier

classification  was in breach of s.105  It was a breach of a statutory duty, and in that sense it was not lawful and estoppel cannot be raised against him to prevent him from correcting that act. Naturally one reaches such a conclusion with a certain measure of reluctance, as it is undoubtedly hard on the defendant company to be called upon so long after the event to find such a substantial sum, which would not have been payable but for the plaintiff’s negligence in the first instance in not having the pellets which were sent to him for examination properly tested. One can well understand, however, that on the balance, it is preferable that the law should be as it is. It is not in the interests of consistent application of the law that errors should be sanctified as principle.

In any event, it should be noted that the final arbitrator of

classification of any substance under the Act is the Court and not the Commissioner, and to hold that the Commissioner is so estopped from claim duty because of an erroneous classification and not the court as is clearly contemplated under the scheme of the Ordinance.” A case in which the doctrine was not specifically ennunciated, but to which it could easily be applied as showing the rationale behind the decision is Korarji Tricumdass v. The Official Assignee and Another, (1934), 1 E.A.C.A. 175, which involved a mortgage given by an insolvent to a moneylender. There was a written admission in the High Court by the insolvent that he had received money from the appellant. The contention was that this should have estopped the Official Assignee from called in aid the Moneylender’s Decree in connection with the requirement of a written memorandum. The Court (pp. 178 –179) quoted from In re Van Laun, (1907), 1 K.B. 155, 162:“The trustee’s right and duty when examining a proof for the purpose of admitting or rejecting it is to require some satisfactory evidence that the debt on which the

proof is founded is a real debt.

No judgment recovered against the bankrupt,

no covenant given by or account stated with him can deprive the trustee of this right. He is entitled to go behind such forms to get at the truth, and the estoppel to which the bankrupt may have subjected himself will not prevail against him.” See also Chatrath v. Shah, [1967] E.A. 93 (C.A) at pp. 96 – 97, where the Court at p.97 said:“The doctrine that there can be no estoppel against a statute simply means that an estoppel cannot render valid something that the law makes invalid; so that if a statute declares a transaction to be invalid or expressly declares a transaction to be invalid or expressly declares that something should not be done then the doctrine of estoppel cannot be used to override the specific directions of the law.” Estoppel by conduct. Although, as seen in (b) above, s.120 embodies both the Pickard v. Sears doctrine and equitable estoppel, both of which are classified by, for example MORRIS, under the heading “estoppel by conduct (see pp.160 et seq.), we will here cover the two separately. For the Pickard v. Sears estoppel by conduct to become operative, it is required that the conduct should have been such as to cause or permit a person to believe a thing to be true, and the person must have acted in some way on his belief, either by doing something or forbearing to do something, thereby altering his position to his detriment. In these circumstances, neither the person whose conduct has resulted in the change of position, nor his representative in interest, is allowed in any suit or

proceeding between himself and such person (or his representative in interest) to deny the truth of the thing. (See section (b), p.278 and elements listed in SARKAR, keeping in mind that the section is limited to the rule in East Africa that equitable estoppel also falls under s.120, although there is a distinction in application of the two types of estoppel.) The doctrine of estoppel by conduct is best illustrated by examination of the various cases in East Africa in which it has been applied. In Suyedu Binti Abdulla bin Mohamed El-Javi v. The Waki Commissioners, Zanzibar, ( 1949), 6 Z.L.R. 227, a Mohammedan created by deed a wakf of a shamba in which he reserved for himself a life interest which was, in fact, invalid under the applicable law. His daughter, the Plaintiff, was a beneficiary and eventually, after his death, became the sole beneficiary, and for a time was the trustee of the wakf in pursuance of a family agreement to treat the wakf as valid.

This arrangement

appeared at the time to benefit her, since her interest under the wakf was greater than here interest in her father’s inheritance. Subsequently she challenged the wakf’s validity, and the Court held that though the wakf was at the time of its declaration invalid under Shafei Law by reason of the reservation of a life interest by the dedicator, the plaintiff by her conduct and by s.115 Z.E.D. was estopped from alleging its invalidity. A similar case is Fatuma binti Abdulrehman bin Mohamed El Ruwohia v. Abdulla bin Mohammed bins Salim El-Ruweni, (1949), 8 Z.L.R. 244, wherein X and another jointly made wakfs of their half-shares in a shamba by deed. Later X entered into a written agreement regarding the wakfs with the plaintiffs, who were beneficiaries, whereunder he undertook to manage the wakfs and to pay them their shares. When the plaintiffs later sued him to render accounts and pay them their sahres, X pleaded that this agreement had been entered into by him without consideration and under a bona fide mistake as to the interpretation of the wasf deeds, arrived at through bad advice by the Sheikhs. The Court held that as this was a

mistake of fact it could be pleaded as a ground for avoiding the agreement; nonetheless the agreement, amounting as it did to a family arrangement, must be deemed to have been entered into by X for good consideration, and accordingly, having acted upon it, he was estopped by s.115 Z.E.D. from attempting to upset it. Note in each case how the declaration and acts of the person estopped caused or permitted the other party to believe a thing to be true and act upon the belief to his detriment. Harnam Singa v. Jamal Pirbhai, (1955), 22 E.A.C.A. 1 (P.C.), involved a situation where a contractual tenant, upon receipt of a notice to quit, sent by his advocates a letter in which it was said:- “Our client will not vacate the premises in accordance with your notice, but will remain in occupation as a statutory tenant from the date of the expiry of the notice ” (under the relevant legislation. At the trial, however, he contended that he was a contractual tenant, and it was held that the letter created an estoppel between the parties and the tenant was estopped from contending that he was a contractual tenant, and must be taken to be a statutory tenant. In a similar case, N.M. Dattani v. Ahmei[1959] E.A. 216, 220 (U) the Court, referring to Harnam Singh’s case as authority said – “ By his conduct and by paying this rent for four years without demur he has admitted that he was a statutory tenant and he is estopped from so denying.”. A number of cases have involved situations where the defalcations of one person raised the question as to which of two innocent parties should suffer, and estoppel has been applied in reaching a decision. In Dukhiya v. Standard Bank of S.A. [1959] E.A. 958(C.A.) a bank clerk who had previously borrowed money from the appellant offered to deposit money with the appellant Bank repayable on demand. The clerk then fraudulently debited the ledger accounts of the Bank’s customers and by forging cheques credited the appellant’s account.

The clerk was tried and

convicted, and the lower courts held that the bank was entitled to recover the money from the appellant since the money had been paid into his account under mistake of fact induced by fraud. In discussing whether the Bank was estopped through the

appellant’s having changed his position to his detriment before refund was demanded, the Court said (p.966):“In order to found an estoppel, in the full sense, it must also appear that the alteration of the appellant’s position was induced by some representation made by the respondent with the intention that it should be acted upon. Counsel for the appellant has argued further that if the alteration of the appellant’s position to his detriment was brought about by some breach of duty on the part of the respondent that is a sufficient defence. For the purposes of this case I see little difference in principle when the matter is put thus, for if the respondent was under a duty towards the appellant and if the detrimental alteration of position was due to the breach of that duty it seems inevitably to follow that the breach of duty either amounted to or resulted in a representation to the appellant, either positive or negative.” After deciding that the Bank was under a duty to inform the appellant as to the true state of his account, and that it breached this duty, causing the detrimental change of position by the appellant, the Court allowed the appeal on the basis of application of estoppel applied against the respondent Bank. Dukhiya’s case was applied in Jamal Ramji & Co. v. Lint Marketing Board, [1962] E.A. 752 (u) where, through the fraud of an accounts clerk and a third party, cheques from the appellants were applied to the third party's bank account. After holding that the defendant’s were not entitled to rely on the defence open to an agent, the Court said at pp.775 – 7s56:“Can estoppel defeat this claim? Before it can do so the defendants must show some act or representation of the plaintiffs or some breach of duty on their part to the defendants.

On the evidence the plaintiffs did nothing to induce the

defendants to believe that [the third party was] entitled to be credited with the proceeds of the two cheques. They made no representation about [the third

party]. The defendants derived their information about that company from Barclay’s Bank, who were not the plaintiff’s agents. Contrast Dukhiya’s case, where it was held that the respondent owed a duty to the appellant to inform him of the true state of his account and if the detrimental alteration of his position was due to the breach of that duty it followed that the breach amounted to a representation to the appellant, either positive or negative. The Plaintiffs as purchasers owed no such duty to the defendants as sellers to inform him that their statement of account was incorrect. They were both principals. To hold otherwise would mean that the defendants could rely on an error in their accounts as a defence to a claim such as this. In the absence of any representation or duty the defence of estoppel must fail.” Where the defalcation was that of an agent (in this connection, see discussion, Agency Law in Eat Africa by J. Daley, Legal Publications Limited (1966), the Court held in Kapadia v. Laxmidas, [1964] E.A. 378 (C.A) that, under the facts, the Appellant was precluded from denying the authority of his agent to deal with the goods as he did, and was thus precluded from asserting that the respondent dealt with the goods wrongfully or was liable to the appellant in conversion, saying at p.383:-

“I consider that the true common law principle is that where the true owner of goods, in breach of his duty to a third party, arms his agent, or knowingly permits his agent to arm himself. With some indicia of title to the goods and allows the agent to deal with the goods at if they were his own, then the true-owner is precluded as against this third party  who deals bona fide with the goods and without the knowledge of the rights of the true owner from denying the authority of the agent to deal with the goods in the manner in which they were dealt with.” Compare this situation with that in the Bank cases above where it was held that no agency relationship existed.

A.H. Duder v. W.C.A Basilio, (1952), 25 K.L.R. 27 involved a situation where the plaintiff sold a car on hire purchase to one L.

The plaintiff gratuitously notified

the Registrar of Motor Vehicles that he had transferred ownership although title under the agreement did not pass until the last payment had been made. The plaintiff also notified the Insurance Company that he was transferring the third risk to L. L did not complete the installment payments, but sold the car to the defendant, who bought it in good faith without knowing that it was subject to the hire purchase agreement. The plaintiff then sued the defendant for the return of the car or for the outstanding payments. In deciding which of the two innocent parties was to suffer, the Court held that no estoppel arose in respect of the plaintiff’s letter to the Registrar because the defendant was not aware of it at the time he bought the car. The defendant claimed that the plaintiff was estopped from setting up title to the car because of his transfer of the third party risk to L. The Court, however, did not think any presumption of change of ownership could arise from the contents of the letter, nor did it regard the letter as amounting to the giving of notice of any change of ownership. Consequently the doctrine of estoppel did not apply, and judgment was given for the plaintiff. The Court in Prajapat v. Ashok Cotton Co., [1964] E.A. 378 (C.A.) held that the plaintiff’s conduct in paying increased rent without protest and having his name registered as the owner of the property after he had learned the correct rental of a plot in question estopped him from later complaining about the increase.

Note that

the Court quoted from Pickard and Scars on p.317, but made no reference to s.113 U.E.A. in which the doctrine is enshrined. In Jetha Ismail Ltd. V. Semani Bros., [1960] E.A. 26 (C.A.), the appellants had represented to the respondents that they had remitted payment on cheques, and the respondents acted upon that representation to their detriment. After discussing the elements required to bring the situation within s.113 U.E.O. (see para.(b) p.278), the Court held that the appellants were estopped by their conduct from denying that they had, in fact, remitted payment of the cheque, and accordingly their action to force payment could not succeed.

Matayo Museke v. Alibhai Garage Ltd., [1960] E.A. 31 (U) involved a situation where the defendant had hired a motor car under a hire purchase agreement to one S, and gave him possession of the car and the registration book. Having had the car registered in his name, S defaulted in payment of installments under the hire-purchase agreement and sold the car to the plaintiff who registered it in his own name. The defendant later seized the car in terms of the agreement were S, and the plaintiff then sued for the return of the car or its value. At the trial it was contended that the defendant, having handed over the registration book to S, was estopped by its conduct from denying S’s authority to sell the car. Although the relevant suction was not referred to in the decision, the Court held that the defendant was not estopped by his conduct, for a registration book is not a document of title, and the book contained a warning to this effect in bold letters. The appellant in Abdulali Jiwaji v. Pandya, [1958] E.A. 521 (U) was unable to bring the respondent within the application of the doctrine. In an earlier case, the respondent had been used by the Kampala Municipal Council, and the Court of Appeal had held that he was a statutory tenant, as he had claimed and his advocate had argued. The question was whether he was estopped from denying that he was a statutory tenant in this later case. The Court here made reference to the equivalents to ss.44 and 45 K.E.A. (judgments in rem, and other judgments of a public nature), and held that application of the sections was fatal to the appellant’s submission that the earlier case was in rem. The earlier judgment was held not to have altered the legal character of the respondent in any of the ways mentioned in [s.44], nor was there any evidence that the appellant had acted upon the belief that the respondent was a statutory tenant. In Gomes v. Singh, [1964] E.A. 756 (C.A), the appellant, being dissatisfied with construction of her house, hired an architect to inspect the building and report to her. It was held that she, as owner, was not estopped from later alleging defects in the construction. The architect was held to have been merely her agent or representative, without the special attending standing of an architect appointed as such under a budilging contract, being hired only to report on defects and later to superview work;

she had also not hell herself out as agreeing to be bound by way certificates issued by the architect. g. Equitable or promissory estoppel. The doctrine of equitable estoppel as enunciated in Hughes v. Metropolitan Railway Co., [1877], 2 App. Cas. 439, 448, quoted in Nurdin Bandali’s case at p.318 is:“ but it is the first principle upon which all courts of equity proceed, that if parties who have entered into definito and distinct terms involving certain legal results – certain penalties or legal forfeiture – afterwards by their own act or with their own consent enter upon a course of negotiation which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced, or will be kept in suspense, or held in abeyance, the person who otherwise might have enforced those rights will not be allowed to enforce them where it would be inequitable having regard to the dealings which have thus taken place between the parties.” The court in Nurdin Bandali’s case applied the doctrine to a fact the hire-purchase of a truck. Where the strict rights of the respondent to repossess were generally not enforced when payments were late. In holding that the doctrine did not apply to the facts of the case, the Court said at p.329 of the decision:“ I see nothing in the course of conduct of the respondent which induced the appellant to act on the belief that he need not make his payments punctually and that the respondent would not exercise his right to repossess. But even if the respondent had, by repeatedly accepting late payments as payments duly made under the agreement, induced the appellant to believe that the truck would not be repossessed on failure to pay the hire rental on the due date, it would nevertheless be open to the respondent, by giving reasonable notice to the appellant, to require payment of the

overdue hire rentals and in default of such payment to repossess the truck.  It is a basic equitable principle that he who asks for equity must do equity.

It would

certainly not be equitable for an unalterable position to be created whereby the appellant could delay as much as he liked in his payments but the respondent had no effective remedy. If, therefore, the position can be restored to that which existed before the representation, it is only equitable that the terms of the agreement between the parties should be enforced.

Thus, if the appellant had failed to pay punctually

because the conduct of the respondent had led him to believe that the respondent would not repossess on default of punctual payment, it would nevertheless be the duty of the appellant to pay if the respondent gave reasonable notice requiring payment, in default of which the right to repossess would be exercised.” Nurdin Bandali’s case was applied in Century Automobiles v. Hutchings biemer Ltd. [1965] E.A 304 (C.A) where, acting upon a representation as to a future state of affairs, the appellant expended funds on renovation of property leased. (For full facts see p.226 in connection with s.98, proviso ix). The Court on p.310 of the decision first quoted from Nirdin’s case:“The precise limits of an equitable estoppel are, however, by no means clear. It is clear, however, that before it can arise one party must have made to another party a clear and unequivocal representation, which may relate to the enforcement of legal rights, with the intention that it should be acted upon and the other party, in the belief of the truth of the representation, acted upon it.” NEWBOLD, V-P, in his concurring opinion, restated (p.313) his earlier remarks in Nurdin’s case, above, by saying:“The three elements which must be present are first, a clear and unequivocal representation; secondly, an intention that it should be acted upon; and thirdly, action upon it in the belief of its truth.”

The problem which faced the Court was whether the alleged assurance could be regarded as a clear and unequivocal representation, and in this regard, SPRY, J.A. said on p.311:“ using the ordinary meaning of the word, it seems impossible to describe as ‘clear’ an assurance the terms of which have given rise to such lengthy argument. On the other hand, the application of the doctrine would be whittled down to nil if assurances given in the course of ordinary conversations were required to have the precision that a lawyer would desire  I entertain no doubt that if the conversation was substantially as Mr . V. V. Patel testified, the assurance was intended to be acted upon. This does not, of course, mean that Mr. Somen necessarily intended or even contemplated all the legal consequences that would flow from the assurance: what it does mean is that Mr Somen knew, and must be presumed to have intended, that his remarks would lead directly to the expenditure by the appellant company of the cost of the proposed alterations to the suit premises. So quote again from Nurdin’s case :‘in the case of estoppel if the representations, by word of (sic) conduct, of the respondent were such as to induce the appellant to alter his position in the belief that the respondent’s rights would not be asserted, then the respondent may be estopped from asserting those rights even though it never intended to give them up.’ ” An old case involving equitable estoppel, the doctrine being applied before the issue as to whether the doctrine did, in fact, fall under s.115 (and not referred to in Nurdin’s case), is Abdi Nvri v. I.E.A. Corp. and Rukiya, (1909). 3 E.A.L.R. 12, where the Court held that where a fraudulent title has been pleaded in court to defeat a claim, the executor or Wasi of the party who pleaded such fraudulent title is estopped from thereafter pleading the true title as against a purchaser for value from the holder of the fraudulent title without notice of the fraud.

Note that no type of estoppel, including equitable estoppel, and be invoked against a statutory duty; Mulji Jetha Ltd. V. I.T. Comr., [1967] E.A. 50 (K). The Court here (pp.58 – 57) in addition to noting that equitable estoppel probably does not apply only to afford protection against the enforcement of contractual obligations said:“Equitable estoppel is not a principle to be applied by the court in an arbitrary or mechanical way without regard to the factors which normally influence the exercise of its inherent discretion in the granting of equitable relief ”. The doctrine was recently applied in Commissioner of Lands v. Hussein, [1966] E.A. 585 (K) where the respondent’s father at the verbal suggestion of army authorities, at his own expense erected buildings for a canteen. The father accepted the suggestion on condition that he was given a lease. He asked for 50 years, but an army officer present suggested 30 years. Plans were prepared and approved by the army, and a substantial amount was expended in erecting a building. The Plaintiff Commissioner eventually brought an action for possession, and the defendant claimed, in effect, that the plaintiff was prevented from ejecting him on the doctrine of equitable estoppel, relying on the putting up of the building by his father at the instigation of the army. The Court, per HARRIS, J., adopted and applied a statement of LORD KINDSDOWN in Ramsden v. Dyson, (1866), L.R. l H.L. 129 (from P.592 of the decision):“The rule of law applicable to the case appears to me to be this: If a man, under a verbal agreement with a landlord for a certain interest in land, or, what amounts to the same thing, under an expectation, created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land, with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord, and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or exception. ”

and held that the Commissioner was estopped by acquiescence from claiming possession of the suit premises. In Runia Coffee v. Singh, [1966] E.A. 564 (C.A.) the plaintiff, as freehold of a farm, sued for possession of a combined shop and house erected on it in stone 10 years previously by and at the expense of the defendant’s father.

The defendant, in

possession before and after his father’s death, relied on a contractual licence to build and remain in exclusive possession until compensation was paid according to a formula agreed to verbally between his father and the managing director of the plaintiff’s first predecessor in title. Among other things the defendant pleaded that the plaintiff was equitably estopped from terminating the licence without compensation founded upon his father’s incurring expense in the expectation of being allowed to stay. In the course of holding that, as a matter of fact, the license was personel to the father and any equitable estoppel could arise only in favour of the father and not the respondent, plaintiff, the Court said on pp.568 – 569:“An estoppel is a rule of evidence which may enable a cause of action to succeed but which can never of itself found a cause of action. (Citing Nurdin’s case ). The right to plead an estoppel does not give any title to the thing which is the subject

matter of the estoppel (See Balwant v. Kipkoech([1963] E.A. 651

(C.A.). Before an equitable estoppel, which may consist of the representation of a legal relationship, can arise there muwt be a clear and unequivocal representation (citing Century Auto). Inwards v. Baker ([1965]) 1 ALL E.R. 446) is perhaps the clearest example of a case where the expenditure of money by a person on another’s land in expectation, by reason of a representation made by the owner of the land, of being allowed to occupy that land, given rise to an estoppel precluding the owner from giving any evidence of an act which would terminate that occupation except in accordance with the representation. The right to continue in occupation, however, creates no title in the land and the right is co-extensive with, the dependent upon, a clear and unequivocal

representation. Under s.120 of the Evidence Act, 1963, an estoppel based on representation operates not only between the parties to the representation but also, in proper cases, between their representatives.  The Court then discussed the facts of the particular case and, owing to the personal nature of the license given to the father to remain on the land and the lack of a clear and unequivocal representation to the son, concluded that the plaintiff was not able to plead estoppel. Estoppel by deed As MORRIS has noted (p.159), the doctrine of estoppel by deed has, in recent times in England, been much restricted, and if the statement in the deed is acted upon by the other party, the case can usually be brought within the doctrine of estoppel by conduct: hence there appears to be little point in preserving the doctrine as a separate entity or category of estoppel. Nevertheless it has been recognized in East Africa. In Jenasai Sachoo v. Shamsa, [1957] E.A. 227 (Z), the deed in question contained in the preamble:“And whereas the mortgages has at the request of the mortgager and the surety agreed to lend to her the mortgagor the sum of Shs.16,000/=” The plaintiff’s claim against the second defendant was based on the allegation that he had been guilty of a breach of warranty as to the identity of the mortgagor, the loan to her having made at his request, and the deceased having relied on the warranty. The Court held that the second defendant’s defence that he did not request the loan to be made could not avail him because of the recited in the deed, quoted above. The Court said at p.232:“To quote from HALSBURY (3 rd Edn.), Vol. 15 at p.215, a person is bound by the recitals in a deed to which he is a party whenever they refer to specific facts and are

certain, precise and unambiguous. F.K. Velji set his hand and seal to this deed, and he is not permitted to deny any matter which he has specifically asserted therein. He is estopped by deed from so doing, and the fact of his having made the request referred to in the preamble cannot be denied by him.” However the mere recital of consideration in a deed does not operate as an estoppel; E.A. Power Co. v. Dandora Quarries, Co., [1964] E.A. 309, 316 (U) referring to Greer v. Kettle, Re Patent Trust Finance Co. Ltd., [1937] 4 ALL E.R. 396 (H.L.). Similarly, a date not being a term of a contract, does not result in estoppel; see Folkes & Co. v. Thakrar, [1959] E.A. 36, 42 (C.A) where it was held that estoppel had no bearing. Assuming that the contract in question had been signed before it was dated, the signatories were fully aware of the date on which they had signed, and the date on the contract was filled in their presence, so there was no possibility of their being misled as to the true state of signature; in any event estoppel had not been pleaded although it was argued. Estoppel of tenant or licensee. No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had at the beginning of the tenancy a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny such person had a right to such possession at the time when the licence was given.  The section has been applied in Chatrath v. Shah [1967] E.A. 93 (C.A.) in determining whether, as an issue in the case, the relationship of landlord and tenant applied; the Court, after discussing the facts said (pp.97 – 98):-

“I am therefore of the view that the tenancy agreement was a legal and binding agreement and that whether or not the respondents are by virtue of the provisions of s.121 of the Evidence Act now estopped from denying the title of their landlord they are clearly estopped from denying the tenancy by reason of s.120 of that Act. I am therefore satisfied on the evidence and pleadings that, at the time of the distress for rent, the relationship of landlord and tenant did exist between the respondents and the first appellant.” See also Redseth v. Shaw, [1967] E.A. 833, 835 (K) where counsel failed to take the section into proper account:“I had always regarded it as elementary law that a tenant cannot be permitted to impugn his landlord’s title. There may be exceptions and qualifications to the generality of the rule, but the rule itself is clearly set out in s.121 of the Evidence Act, which so far as material reads as follows: (quoted) Counsel for the defendant nevertheless argues that at the time when the plaintiff gave the defendant notice to quit she had no title to the property. He concedes that nothing had happened to detract from her title between the commencement of the tenancy and the date of the notice, and he relies on something which he alleges to have happened some 10 years before the commencement of the tenancy.

It would be

difficult to imagine a more flagrant disregard of the principle embedied in the section and I propose to say nothing further about it.” A discussion of the general English law on the subject is to be found in Ravi Bint Mohamed v. Abdce S. Ahmed, [1957] E.A. 782, 784 (A), although no specific reference is made to the equivalent section of the Adon Evidence Ordinance.

Other specific statutory estoppels The Act contains two other specific estoppels, that of an acceptor of a bill of exchange, and of a .., license or agent. There appear to be no reported East African decisions under the sections, and they are therefore set forth below without a comment. No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority to draw such bill or to endorse it. Provided that the acceptor of a bill of exchange may deny that the bill was in fact drawn or endorsed by the person by whom it purports to have been drawn or endorsed.  No bailee, agent or licensee shall be permitted to deny that the bailor, principal or licensor, by whom any goods were entrusted to any of them respectively, was entitled to those goods at the time when they were so entrusted. Provided that any such bailee, agent or licence may show that he was compelled to deliver up any such goods to some person who had a right to them as against his bailor, principal or licensor, or that his bailor, principal or licensor, wrongfully and without notice to the bailee, agent or licensee, obtained the goods from a third person who has claimed them from such bailee agent or licensee.

COMPETENCE & COMPELLABILITY Competence and compellability is a straightforward area of law. The concern here is who may given Competence refers to capability to give evidence and a person is competent if he/she is conversant with the matters under consideration and the person may legally be called upon to give evidence of those matters. A person is compellable on the other hand when he/she can be obliged to go to the witness box and give evidence at the pain of penalty of imprisonment should he or she fail to give turn up. There are instances when a competent witness is relieved of the duty to give evidence for instance where they have a claim to privilege. In that kind of circumstance the person is competent but law of statute has exempted them to give evidence. A person can generally be a competent witness or they can be competent in restricted cases. They may also be totally incompetent. General competence is dealt with at S. 125(1) Evidence Act. All persons are competent and it is up to the court to decide whether they have a disability that renders them incompetent e.g. tender years, extreme old age or a disease of body or mind. The implication is that it is for the court to decide whether a particular person is competent or not and the guidelines are given in S. 125(1). The idea is if one is able to give rational answers to the questions the court is putting forward, one could be 200 years old or a few months, there is no underage or overage limited. Under 125(2) even a mentally retarded person or a lunatic is competent witness unless it can be shown that due to his condition at the particular time he is incapable of understanding the questions put to him and giving rational answers to them due to his sickness of mind.

Under Section 126 even dumb witnesses are competent witnesses and can give their evidence in any manner which makes it intelligible. For instance if they can write it down or if they can give it through sign language. The writing and the signs have to be given in open court because they are treated as oral evidence for purposes of Section 63. Hamisi s/o Sallum V. R This was a trial for murder and the only eye witness was the daughter of the deceased who was a deaf mute. She came to court with a relative who claimed that she could received information from the witnesses sign and noises. The Judge overruled the evidence. On Appeal, it was held that such a person is a competent witness if he or she can be made to understand the nature of an oath and if intelligence can be conveyed to and from him/her by means of signs. This case is an authority for the proposition that even deaf and dumb are competent witnesses if the evidence can be communicated to them through signs. Apart from cases of general competence there are special cases of competence and these are cases where competence is derived from statute. The first instance of special case of competence is derived from the accused person. An accused person is a competence witness for the defence at every stage of the proceedings whether he is charged alone or jointly with others. This is provided for at Section 127 (2) the accused has however to apply to be a witness and he has a right to keep silent. The reason is because before the UK 1898 Criminal Evidence Act the accused person was not a competent witness at all. The spouse of an accused person was also not a competent witnesses, atheists and convicts were not competent witnesses. The 1898 Criminal Evidence Act made these groups of people competent witnesses. Before that they were deemed to be unworthy of credit. The second special case of competence is a spouse of an accused person. If a person is a lawful husband/wife of an accused he/she is a competent witness of the defence at every stage of the trial. This is also provided for at Section 127(2)

Section 127 (4) provides who is a husband or wife for the purposes of this section. It is to the effect that it is a husband/wife of a marriage be it in a monogamous or polygamous marriage. Section 127(1) Spouses are competent witnesses in civil cases and here there is no underscoring on whose part. It could be for the defence or the other party. There is a change from common law where spouses were not competent witnesses and now they are competent witnesses. Section 127(3) it is provided that spouses are competent and compellable witness for the prosecution or defence in any case where the other spouses charged with (a)

The offence of bigamy;

(b)

An offence against morality under Chapter 15 of the Penal Code; or

(c)

Where the other spouse is charged with an offence affecting the person or property of the wife or husband or such person or the children of either one of them and not otherwise;

Section 127(3) closes the category under which a husband/wife is compellable and it is only in those 3 instances that a spouse can be a competent witness to testify against the other. These provisions of the Evidence Act buttress the accused persons against self incrimination. ACCOMPLICES Section 141 of E.A Essentially accomplice evidence is admissible and an accomplice is a competent witness and the usual practice is to finish with the accomplice case before calling on the accomplice to testify so that the accomplice does not give evidence in the hope that the court will be lenient with him depending on his testimony. The statute is clear that it is not necessarily the case that you will sideline evidence because it is given by an accomplice. OPPORTUNITY

CHILDREN OF TENDER YEARS S. 125(1) general competence. Children are competent unless the court considers them incapable of understanding the questions put to them. What would prevent them would be their tender age and the Act does not give an age limit below or above which a person can testify. Kibageni V R COMPELLABILITY Normally a competent witness is compellable. But where a witness’s competence derives from statute and this is in instances where a witness was not always a competent witness, then the statute that makes him a competent witness must also deal with the issue of their compellability. Section 127 (1) (2) (3) it underscores competence as well as compellability. If a witness is competent and compellable they decline to give evidence or to be sworn at the peril of imprisonment. Section 128: Under 128 when you go to court as a witness, you must answer the question but the section cushions the witness because it provides that any answer that a witness gives or is compelled to give by dint of giving evidence to court shall not subject such a witness to an arrest or prosecution save for the offence of perjury. Section 152 of the Criminal Procedure Act provides the procedure to be followed in the case of stubborn witnesses. It is to the effect that whenever any person appearing in court refuses to be sworn or (b) having been sworn refused to answer any question put to him or (c) refuses or neglects to produce any document or thing, which he is required to produced or (d) refuses to sign his deposition without in any such case offering any sufficient excuse for such refusal or

neglect, the court may adjourn for 8 days putting such person in custody unless he sooner consents to do that which is required of him. Privilege may constitute a sufficient excuse. With regard to husbands and wives spouses of accused person, they were not originally competent, statutes made them competent for the defence at every stage and we only have 3 instances when they are compellable to give evidence R V. Lapworth Hoskin V. Metropolitan Police Commissiosner Hoskin V. Metropolitan The husband here was charged with inflicting personal injury on his wife. The injury was inflicted while the woman was cohabiting with the defendant. The woman was reluctant to testify and the question was whether she was compellable. The court held that s the common law wife was incompetent to testify against her husband, she cannot be compelled to testify unless a statute makes a special provision for compulsion. (S. 127(3)) inflicting personal injury. R V. Kihandika R V. Blanchard In the Blanchard case the accused was charged with committing buggery on his wife, the issue arose as to whether the wife was a competent witness, the court held yes because the offence involved injury to her person (127(3). The question has arisen as to why you exclude spouse evidence in some and allow it in others. Some people argue that spouses are one and should not testify against one another and its only in instances where it would be impossible to sustain a case if their evidence was not available. R v Pete

PRIVILEGE & PUBLIC POLICY: These are matters that need not be adduced and are precluded by public policy. They are discluded from disclosure by public policy. The person with the information cannot waive the right not to disclose information. You are obliged to insist on none disclosure. The court may on its own volition object to such matters being adduced in evidence. If a matter is discluded from public disclosure, even matters of secondary evidence cannot be adduced Section 131.

Whenever it is stated on oath (whether by affidavit or otherwise) by a Minister

that he has examined the contents of any document forming part of any unpublished official records, the production of which document has been called for in any proceedings, and that he is of the opinion that such production would be prejudicial to the public service, either by reason of

the content thereof or of the fact that it belongs to a class which, on grounds of public policy, should be withheld from such production, the document shall not be admissible.” PRIVILEGE: Privilege as against public policy is personal to whomever it is conferred upon and can therefore be waived. If you have a privilege you could decide to waive it. The information in respect of which you could waive if it comes to the possession of a 3 rd party, the 3rd party can disclose the information. Privilege is personal to whom it is conferred. It is not the information that is privileged, it is the person. Communications during marriage are privileged (S. 130) in a situation where two parties are married, they enjoy the privilege. If the husband discloses to the wife that he committed a crime, the wife is privileged but if a wily housemaid overhears the conversation, she can disclose. Public policy requires that if you are possessed of information, it is not to be disclosed. Privilege may be broadly divided into two parts; private and official. Official privilege flows from the official status of a person. It includes the privilege of judges and magistrates, public officers in connection with official information. A Police Officer can claim privilege in court not to disclose his source of information. Privilege of an accused person against self incrimination, privilege of witnesses, spouses and legal professional privilege. Privilege is granted to the client in an advocate/client relationship. CATEGORIES OF PRIVILEGE: 1.

Privilege of accused persons Section 77 of the Constitution read together with Section 127 (2) of the Evidence Act spell out that an accused person shall not be compelled to testify at his trial.

Where an accused has been compelled to fill a form i.e. in tax matters, could an accused person be compelled to disclose the information. El Mann V. R [1969] E.A. 357 The accused had been required to answer certain questions for income tax purposes. He had no choice but to fill the questionnaire because failure to do so would have been an offence. The form disclosed certain offences. Counsel for accused objected to use of the information and called to his aid Section 77 of the constitution which enshrines privilege against self incrimination. The matter was taken to constitutional court which ruled that Section 77 was clear and unambiguous. It referred to the accused not testifying at his trial and did not refer to places outside the trial. Filling out the questionnaire was not a trial and therefore not covered under Section 77.

Private privilege of witnesses Section 128. To the effect that a witness is not privileged from answering questions that will incriminate him/her or expose witnesses to penalties. The privilege is that the answers they give during trial will not be used against them so that there can be free flow of information. The information can only be used on prosecution for perjury. PRIVATE PRIVILEGE OF SPOUSES S. 130 (1) No spouse can be compelled to disclose any information made to her/him during marriage. There are however exceptions to this rule. (i)

Cases involving one in the offence of bigamy;

(ii)

Where you have offences against morality if one spouse is charged with an offence against morality.

If one spouse is charged with an offence against

morality privilege does not hold.

(iii)

Offence or torts involving persons or property or any child to the marriage. The privilege is to the spouse not on information. If the information comes to a 3 rd party, privilege does not arise.

Rumping V. D.P.P. [1964] A.C. In this case Rumping was a Dutch Seaman charged with murder. He gave a letter to a shipmate to post to his wife outside England. The letter contained a confession to the offence of murder.

The letter was turned over to the police and the objection was raised on the

admissibility of the letter on the grounds of spousal privilege. The court held that the letter was admissible in evidence because the privilege is inadmissible where the letter has been intercepted by 3rd parties. Section 1230 (2) in this section ‘marriage’ means a marriage, whether or not monogamous, which is by law binding during the lifetime. LEGAL PROFESSIONAL PRIVILEGE S. 134 OF EVIDENCE ACT 1. The upshot is that an advocate will not disclose communication made to them by their client. Not to disclose documents provided by clients or legal advice given to the client. It is a professional privilege. Section 134 (1) (a) (b) There are exceptions to the rule – communication made in furtherance of illegal acts is an exception. If an advocate observes a fact which shows that a crime has occurred, since the commencement of the advocate/client relationship they can disclose that information. The exception delimits the purview of client relationship. The client can expressly consent to disclosure then the advocate can disclose.

Omari s/o Hassan V. R. (1956) 23 E.A.C.A 550

The Appellant was convicted of murder and evidence rested entirely on 2 statements by the deceased that the accused was one of the persons who had attacked him. The trial judge after directing himself that such a statement should be accepted with caution found that there was corroboration in the Appellant’s refusal to testify particularly the accused informed the court that refusal to testify was against his professional advice. On Appeal it was held that although the judge was entitled to take into account a refusal to give evidence on oath, such refusal to give evidence cannot bolster a weak case of relief the prosecution of the duty to prove its case beyond reasonable doubt. Secondly the disclosure by the advocate that the accused had refused to follow his advice was a breach of professional confidence and the judge should not have allowed it to affect his professional mind.

R V. King (1983) 1 AER 929 Under Section 135 of Evidence Act the legal professional privilege is extended to legal clerks or other servants. Section 136 therefore is a provision for waiver of the privilege and under that section just agreeing to give evidence on the part of the client does not amount to waiver of the privilege but if as a client you call on an advocate or his staff, you will be deemed to have waived your privileges.

Section 137. Reaffirms the privilege given to the client in Section 134 and makes it clear that the privilege is for the client and not the advocate. Section 138 – PRIVILEGE OF WITNESS IN CONNECTION OF TITLE DEEDS A witness not a party to proceedings cannot be compelled to disclose or produce any documents of title relating to his property. Section 139

Deals with privileged documents in possession of another – nobody can be compelled to produce documents in his possession which another person will be entitled to produce if they were in his possession. The person who should legally be in possession of that document could consent to its being availed. Secretary of State For Defence & Another v. Guardian Newspapers: British Steel Corporation v. Granda Television Ltd. Privilege will emanate from a person’s official status vis-à-vis personal status. It is accorded to 1. Judicial functionaries – Section 129 – Judges and Magistrates cannot be compelled to disclose except by a higher court which can compel them to disclose any matters which came to their knowledge in their official capacity. They may however be compelled to give evidence in a matter they observed in the course of doing something else. 2. Public Officers Section 1232. Public officers shall not be compelled to disclose communications made to them by any person in the course of their duty if they consider that the public interest will suffer or be prejudiced by the disclosure. Dhukale v. Universal TOT CO. et al (1974) E.A. 395 Rishen Chand Mohindra V. Mathra Dass

Section 133

No judge, magistrate or police or revenue officer can be compelled to disclose the name of his/her informants on the commission of an offence. This assists in people giving information freely. Kapoor Singh s/o Harman Singh V. R Where the Appellant was convicted over the unlawful possession of gold. Police received information from an informer and when they searched the house, it revealed that he was actually in possession of gold. The accused attempted to obtain the name of the informer during trial but he was overruled. In Appeal it was held that this is a clear and mandatory section and there was no discretion on the court to compel the policeman to disclose the source of information. Njunga V. R. (1965) E.A. 773 (K) The accused was driving a disguised motor vehicle, he was chased and apprehended. It was held that if he Evidence on which the court is relying is damaging…. The police

had been informed that under the driver’s seat there were arms and when

apprehended, there were actually arms under the seats. The accused was charged with being armed and with the intent to commit a felony. The court did not think that there was enough evidence of intent to commit a felony and that the informer should be brought to testify. Section 131 delimits parameters of public policy. It outlines procedure to be followed when the state wishes to claim that the documents should not be produced lest they be prejudicial to the state. The Minister must state that he has examined the contents of the documents. He must state that such documents formed part of official public records. That after examining the document that he has formed the opinion that its production would be prejudicial to the public interest either by reason of its contents or because of the class to which it belongs and all these things have to be stated on oath.

You are protecting secrets of the state disclosure of which would affect public policy. The danger has been that the privilege can be abused where government dignitaries proclaim all documents to be prejudicial and this had made courts in England ill disposed and they say that the courts have the duty to make up its mind and decide whether the documents are prejudicial. Duncan v. Camwell,Laird & Co. Ltd. Claim for negligence Re Grosvenor Hotel London No. 2 Conway v. Rimmer It is not all about a minister’s decision but the court can look at the documents to see whether they should be withheld. The judge comes in to vindicate the public in free flow of information. Section 131 – The minister’s word is final – appears to be final. Mudavadi v. Semo High Court Election Petition: Court said that the use of the words ‘shall not’ leaves no discretion to judges to disagree with the minister’s decision. Duncan Claim for negligence in relation to construction of a submarine

COMPETENCY, COMPELLABILITY AND PRIVILEGE The general questions covered in this chapter concern the determination of who may give evidence generally,

who may be compelled to give evidence, and the

circumstances under which a competent witness may be relieved form giving evidence, i.e. privilege. These subjects form the foundation for the further specialised rules governing special classes of witness, e.g. expert witnesses, and those instances where evidence may be given by a witness who is not actually before the court. a. Competency - general. 125.(1) All persons shall be competent to testify unless the court considers that they are prevented form understanding the questions put to them, or form giving rational answers to those questions, by tender years, extreme old age, disease whether of body or mind) or any similar cause. (2) A mentally disordered person or a lunatic is not incompetent to testify unless he is prevented by his condition from understanding the questions put to him and giving rational answers to them. ...................................... “A person who is fully conversant with some relevant fact, and therefore competent to give evidence about it form a lay-mans’s point of view, may nevertheless be incompetent as a witness in law. An incompetent witness is not permitted to give evidence. A person who is legally competent cannot always be compelled to give evidence, if he is unwilling to do so. Competence and compulsion (or compellability are thus distinct topics. yet when a person is not a competent witness, he is obviously not compellable. Conversely, when he is competent he is usually computable.... There is a distinction between competence to give evident in general and competence to give a particular type of evidence. Whether a witness is competent to give expert evidence, for example, is a mater distinct form the general subject of competence..... the question of the competence of experts is decided by the judge, and the same rule applies to the question of general competence. A further distinction may be made between noncomparability and privilege against disclosure.

A witness who is competent and

compellable may nevertheless be entitled to privilege in respect of certain answers, but such privilege does not affect his obligation to give evidence on other subjects.

Prima facie every person is a competent witness.....” NOKES, AN INTRODUCTION TO EVIDENCE, pp. 377-8 ‘It is necessary to distinguish between the competence, compellability and privilege of witnesses. a witness is competent to give evidence if his testimony is admissible. He is compellable if he can be obliged to go into the witness box, the ultimate sanction being imprisonment for contempt of court if he refuses to do. A witness who is unwilling to give evidence is obliged to attend court if a subpoena is served on him and hte appropriate conduct money paid. When in the witness box, the witness is generally guilty of contempt of court if he refuses to answer questions that are put to him but he may claim to be privileged from answering certain questions on the grounds (of privilege). “ CROSS AND WILKINS, AN OUTLINE OF THE LAW OF EVIDENCE, pp. 52-3. Competency being a condition precedent to the administration of an oath or affirmation, a determination of competency must be before the oath or affirmation is administered. Competency, however, is not connected with the administration of hte oath in that a person’s religious beliefs and his belief in the knowledge o the consequences of falsehood have nothing to do with his competency. For example, an accused is a competent witness, but need not take the oath (s. 237 C.P.C.). A witness is incompetent only if he is prevented from understanding the question put to him or is prevented from giving rational answers to those questions. The responsibility for determining competency lies with the court, and if a magistrate for any reason suspects that a potential witness may not be able to understand the questions or give rational

answers, he should, in the best way possible ascertain

whether or not the witness is, in fact, competent. For example, if a witness is quite elderly, the magistrate could ask questions to determine the extent of his intellectually capacity and understanding, and whether he has the ability to remember and describe what he has done on particular occasions, without, of course, asking questions concerning the testimony which he may be called upon to give in the particular case.

The same is true in the

instance of a child of ten years, see below, or a potential witness h is suffering form a disease of mind or body. As set forth in subs. (2), the more fact that a person is a lunatic or suffering from a mental disorder does not make him incompetent or preventing him from giving, while in the witness box a rational account of what he has seen, hear or done on the occasion in question. It is only when his condition prevent shim, as in the case of other witnesses, form understanding the questions or giving rational answers that his mental condition results in a determination of incompetency. b. Competency in special cases. 1 The accused. 127.(1)... (2) In criminal proceedings very perosn charged with an offence. .. shall be a competent witness for hte defence at every stage of the proceedings, whether such person is charged alone or jointly with any other person: Provided that(I)

shall not be called as a witness except upon his

own applications;... (ii)

failure of the person charge... to give evidence shall not be made the subject of any comment by the prosecution.

These safeguards restate the fundamental principles of the criminal law as enshrined in the Constitution, Section 21(7) that no person who is tried for a criminal offence shall be compelled to give evidence at the trial (see p. (v). This section was not contained in the Indian evidence act. Proviso (iii) prohibiting comment by the prosecution on the failure of an accused to testify would not appear to conflict with those case here the presumption contained in illustration (g) to s.119, that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it, for this is a matter to be taken into consideration by the court based upon the evidence presented; see

discussion pp. 88 et seq.. However in those cases where a burden of proof is placed on an accused, either by statute or under s.111, legal arguments concerning failure of an accused to discharge the onus laid upon him when he does not testify certainly lead to the same result, but it is submitted that these are not the type of “comments” which, in an appropriate case would be held to fall within hte purview of the proviso, being instead those comments which would attempt to equate the failure of the accused to give evidence with guilt. An inference of guilt predicated upon failure to discharge an onus which has either been placed upon an accused by law or has been shifted to him, again through the operation of law in connection with a burden of proof would not, it is submitted, be held to fall within the prohibition of the proviso. 2 Dumb witnesss. Merely because a person is unable to speak in order to give his answers to questions asked does not mean that he is incompetent, so long as, under s.125(1) he is not prevented from understanding the questions put to him and so long as he can give rational answers to these questions by some means other than speaking. Section 126 applies:126(1) A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as, for example, by writing or by signs; but such writing must be written, and the signs made, in open court. (2) Evidence so given shall be deemed to be oral evidence. Hamisi s/o Salum, v.R (1951), 18 E.A.C.A. 217 considered the question arising form a witness who was both deaf and dumb, deciding that such evidence may be admitted subject to the discretion of the court to exclude it if the normal requirements are not, in his opinion, met here the magistrate allowed the evidence of the witness to be given through the medium of a sworn interpreter, who was in fact her sister, and who claimed to be able to interpret the signs and noises made by the witness. On appeal, in considering s.119 1 E.A., the equivalent section to s.126 K.E.A., said:“At the trial, it emerged that the witness was not only dumb but also deaf. There does not appear to be any provision of the Indian Evidence Act precisely covering the case of such a witness, but we see no reason why the principle inherent in section 119 thereof should not be applied. In England, a person who is a deaf mute is not incompetent as a

witness if he can be made to understand the nature of an oath and if intelligence can be conveyed to and received from him by means of signs. He may be examined through the medium of a sworn interpreter, who understands the signs. (See archbold, 32nd edition, pages 458-9 and authorities there cited.) In hte present case, however, the learned trial Judge, having tested the proposed method of interpretation, and found it to be of a very crude type, made an order, as it was entirely within his discretion to do, threat the evidence of hte girl should be excluded.” 3. Accomplices. 141. an accomplice shall be a competent witness against an accused person;... See discussion, PP. 68-74 4. husband and wife. (A)definition. 127(4) In this section “husband” and “wife” mean respectively the husband and wife of a marriage, whether or not monogamous, which is by law binding during the lifetime of both parties unless dissolved according to law, and includes a marriage under native or tribal custom. ..................... Prior to the enactment of the K.E.A. in 1963, the dictates of HAMILTON, C.J. in the High Court of East Africa Criminal Revision Case R.v. Amkoyo, (19170 , 7 E.A.L.R. 14, distinguishing between marriages contracted under statutory law, which required monogomy, and polygamous marriages under native law and custom, were controlling in criminal case, specifically those dealing with the competency of a “wife” to give evidence against her husband in criminal cases and communications during marriage. These cases will be noted under the relevant sections, infar, PP, 105-106 infra. It should should be noted that the Report of the Commission on the law of marriage and Divorce has recommended that the definitions of “husband” and “wife” in s. 127(4) be amended to accord with the proposed new law; see para. 226 and the Second Schedule to

the proposed Act. If enacted, the following definition of “marriage” will appear in s.3(1) of the Interpretation and General Provisions Act (Cap.2):“marriage” means a marriage contracted in accordance with or recognised as valid by he Law of matrimony Act, 196-, and ‘husband’, ‘married woman’ and ‘wife’ shall be interpreted accordingly. Part II, ss. 17-20 deals with the nature of marriage, and thus the definition now found in s.127(4) as replaced in the propose new legislation will be just as bread as at present. (b) competency in civil cases. 127.(1) In civil proceedings the parties t the suit, and hte husband or wife of any party to the suit, shall be competent witnesses. ............................. Note that subs. (1) contains no reference to the compellability of a husband or wife in a civil suit, as is contained in s.131 T.E.A., the equivalent section. The Commission Report noted this deficiency in para. 221 and recommended that this be clarified in hte proposed new law. If enacted, s.127 will read:127. In civil proceedings, the parties to the suit and their spouses shall be competent and comellable witnesses; provided that no person shall be compelled to give evidence to prove that he or she did or id not have marital intercourse with his or her spouse during any period of time. (5) competency in criminal cases. The questions as to the competency of a spouse in criminal proceedings ties in closely with the subject of compellability of a spouse in criminal proceedings, and is covered on p.104, infra. 4. Competency of children of tender years. Children are competent witnesses under the provisions of s. 125(1):

“.. unless the court considers that they are prevented form understanding the questions put to them, or form giving rational answers to those questions, by tender years...” RATANLAL summarizes as follows:“With respect children, no precise age is fixed by law within which they are absolutely excluded from giving evidence on the presumption that they have not sufficient understanding.

Neither can any precise rule be laid down respecting the degree of

intelligence and knowledge which will render a child a competent witness. In all questions of this kind much must depend upon the good sense and discrection of the Judge. In practice, it is not unusual to receive the testimony of children of eight or nine years of age when they appear to possess sufficient understanding. As a matter of prudence, Courts are generally chary of putting absolute reliance on the evidence of a solitary child witness and look for corroboration of the same form other circumstances in the case.” (pp 274-5) There are two sections of Acts in Kenya which have direct bearing on the evidence of children:The Oaths and Statutory Declarations Act (Cap.15) 19. Where , in any proceeding before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court, or such person as aforesaid, he is possessed of sufficient intelligence to justify the reception of hte evidence; and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with the provisions of s/ 233 of the Criminal Procedure Code, shall be deemed to be a deposition within the meaning of that section.

What formerly appeared in subs.(1) to s.19 of the Act, now appears in s.124 K.E.A. :-

Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act, where the evidence of a child of tender years is admitted in accordance with that section on behalf of the prosecution in proceedings against an person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him. Note the following points contained in the sections:1 the evidence of a child may be taken even though not given on oath, although the procedure will vary from the normal. 2 The application of s.233 C.P.A., applicable when the evidence is not on oath. 3

The requirement or corroboration of the evidence of a child.

The normal rules

concerning corroboration, discussed on pp. 75 -82 , supra apply. The I.E.A. gave no guidance to courts as to the procedure to be followed where testimony of a child was tendered, whereas in England where provision had been made for reception of unsworn evidence it was always provided that the evidence should b corroborated in some material particular implicating the accused. See quotation from Mohamed Sugal v. R., [1946] A.C. 57, 62, an appeal from Somaliland where the I.E.A. was in force, in Mohamed Saeed Akrabi v. R. [1956, 23 E.A.C.A. 512, 514, which noted that under the I.E.A. corroboration, not being required by statute, went to weight and value of the evidence only, and that while it was a sound rule of practice not to act on uncorroborated evidence of a child, sworn or unsworn, this was a rule of practice and not of law. (Quoted also in Maganga Msigara v. R., {1965] E.A. 471 474 (C.A.) In Kenya, the provisions of the Oaths and Statutory Declarations act, s.19, apply to all proceedings,

whereas in Tanganyika and Uganda the provisions of the respective

C.P.C.s (Uganda, s.149(3)l Tanganyika, s.152(3) and the present section in the T.E.A. (s. 12792) are restricted to criminal proceedings. Although there is some uncertainty in Uganda as to the present state of the law owing to the enactment of the Oaths act, 1963 (Cap.52, s.11), the requirements in

application of the section in Kenya are clean, and reference will be made here to decisions from other jurisdictions only where the language of the provisions in force at the time of decisions are identical to or closely parallel the language in s. 19 O.S.D. Act and s. 124 (formerly subs.(1) to s.19). (a) Who is a “child of tender years”? In Kibangeny v. R., [1959] E.A. 92, 94 (C.A.), the leading case on the evidence of children, the Court said :“There is no definition in the Oaths and Statutory Declarations Ordinance of the expression ‘child of tender years’ for the purpose of s.19. But we take it to mean, in the absence of special circumstances, any child of an age, or apparent age, of under fourteen years; although, as was said by LORD GODDARD, C.J. in R. v. Campbell, [1966] 2 All E.R. 272, ‘Whether a child is of tender years is a matter of the good sense of the court....” where there is no statutory definition of the phrase. The two boys in this case, both of whom ere estimated to be under fourteen year old, must therefore be considered as children of tender years.” See also Oloo s/o Gai v. R., [1960] E.A. 86, 88 (C.A.), and Sakila v. R., [1967] E.A. 403, 405 (T) where the magistrate described the witnesses as “young persons”. Noting that the Children and young persons Ordinance (Cap.13) defined the term as defining a person between twelve and sixteen, and noting Kibanyeny’s case, it was held that this was not a sufficiently clear description. It is necessary for the magistrate to satisfy himself and to record on the case record whether or not the witness is a child of tender years, Sakila’s case, p.405.

(b) Examination of the child before the giving of evidence There are two situations in which a child of tender years may be allowed to give evidence:(1) when he understands the nature of an oath and is either sworn or affirmed, and (2) when he does not understand the nature of an oath. (1) Where the child understands the nature of an oath “ It is clearly the duty of the court (under s.19) to ascertain first, whether a child tendered as a witness understands the nature of an oath... Nyasani s/o Bichana v. R. [1958] E.A. 190 191 (C.A.). “The investigation should precede the swearing and the evidence and should be directed to the particular question whether the child understands the nature of an oath rather than to the question of his general intelligence.” Kibanyeny’s case quoted in Oloo’s case, p.88. The court’s duty is clear, and was supported in Kibangeny’s case, p.95 with the following quotation from R.v. Surgenor, [1940] 2 All E.R. 249:“That section (s.38 91) Children and young persons act, 1933, the wording of which, hte court noted, is, for all relevant purposes, identical with s.19 OSD Act) quite clearly states ... that it is the duty of the presiding judge to satisfy himself whether or not a child of tender age is in a position to be sworn. Those who preside over criminal trials ought to remember that it is the duty of the presiding judge to make an investigation for himself.’ (emphasis added) Religious belief is fundamental to the understanding of an oath Oloo’s case, p.88 It must appear on the case record that there has been compliance with the section, (Nyasani’s case, p. 1919) including a finding as to the child’s capacity to understand the oath, ( Oloo’s case, p. 88) which is determined by the court through questions asked of the child, (Fransisio Matevu v. R., [1961] E.A. 260, 262 (C.A.)

If after questioning, the court is convinced that hte child does, in fact, understand the nature of an oath, arising from religious beliefs, the child may be sworn or affirmed and may testify. (2) If the child does not understand the nature of an oath. If the court finds that the child does not understand the nature of an oath, it must, before allowing the child to give evidence, determine through questioning the child two things.:1

that the child is possessed of sufficient intelligence to justify the reception of the evidence, and

2

that the child understands the duty of speaking the truth.

This is the language of s.19 OSD Act, but the requirement has been laid down even in instances where there was no express statutory provison along the lines of s.19: see Gabriel s/o Maholi v. R., [1960] E.A. 159, 160 (C.A.). Again, this is a condition precedent is hte reception of unsworn evidence, and findings on each of these points must be recorded on the case record. Nyasani’s case, p.191. the Court in Kibangeny’s case, p.95 that the “... investigation need not be a lengthy one, but it must be made and, when made, the tiral judge ought to record it.” Presumably the same holds true for cases where hte court is investigationg the intelligence of the child and whether he understands the duty of speaking the truth. “where this procedure is not carried out and the evidence of a person of tender years is of a vital nature, it may b that the omission may occasion a miscarriage of justice. (seeKibangeny’s case, Nyasani’s case and Fransisio Matovu v. R. cited by

the Court) These authorities show that where there is no other evidence other than that of the child of tender years who has not been properly examined hte conviction cannot be sustained.” (Sakila v. R., [1967] E.A. 403 406 (T) (Note: the Court then distinguished Sakila’s case from Oloo’s case which had held that whilst it would have been better for the trial judge to record in terms that he had satisfied himself that the child understood the nature of an oath, this was the effect of his finding, nothing in the instant case the facts fell far short of those in Oloo’s situation.) (c) the requirement of corroboration There is a distinction in law, but not in practice, concerning the requirements for corroboration in cases where a child gives evidence (1) on oath and (2) under the provisions of s. 19 OSD Act. In the former case it has been held that there is no legal necessity for corroboration, whereas in the latter there is.

In practice, however, the warning ought

always to be given. The Court in Kibangeny’s case in a passage quoted again in Oloo’s case at pp.90, 91, said:“There was moreover nothr irregularity regarding the evidence of these boys which has fortified us in allowing the appeal, and that is the failure of hte learned trial judge, so far as can be gathered form the record, to warn either himself or the assessors of the danger of convicting on their uncorroborated evidence. Had their evidence been neither sworn nor affirmed, then there would have been a legal necessity for its corroboration by other material evidence implicating the appellant by virtue of the proviso to s. 19(1), (now s.124 K.E.A.) and a conviction upon it, if uncorroborated would have been bad notwithstanding such a warning. But even where the evidence of a child of tender years is sworn(or affirmed), then although there is no necessity for its corroboration as a matter of law, a court ought not to convict upon it, if uncorroborated, without warning itself and the assessors (if any) of the danger of se doing. This rule must be distinguished form the rule whereby

this court will look for and require corroboration of the evidence of complainants: whether they be children or adults, in sexual offences: ( citing cases).” (emphasis added). The direction must be in the normal terms set forth in R. v. Baskerville, [1916] 2 K.B. 658; [1916] All E.A. 38; see p. 75 et seq and manda v. R. [1965] e.a. 193, 197 {C.A.} E.A 193, 197 (C.A.) where the definition was applied even though s. 152(3) T.COP.C. (proviso) did not include the words “implicating him” in the section in dealing with corroboration. The effect of the absence of a proper direction on

corroboration was again

considered in Maganga Msigara v. R. [1965] where the Court at p.475 stated:“Shortly, this court will, in cases where there has been no proper direction as to corroboration,, allow the appeal even if there was corroboration except in those exceptional cases to which this court alter full consideration of all the evidence and the circumstances of the case may, if it considers that no substantial miscarriage of justice has occurred, apply the proviso to s.41(1) of the East African Court of Appeal Rules, 1954, and dismiss the appeal.” One point to note is that the sworn evidence of a child has been held sufficient to corroborate the unsworn evidence of another child; see R. v. Ramazani Sajabi s/o Abdulla, (1936), 3 E.A.C.A. and Michael Rachlichi v. R., Kenya H. Ct. Cr. App. No.9/1965, reported in Vol. I, East African Law Journeal, pat 3, p.207. It is possible, however, in view of the desirability of a warning noted above, even in cases of sworn evidence, that these cases would not be applied in the future. (d0 Suggested procedure for dealing with the evidence of children. 1 A child of known or indeterminat age is offered as a witness. 2 The magistrate questions the child to ascertain:-

a) the age of the child, b) the religious beliefs of the child, c) whether the child understands the nature of an oath and its obligations, based upon his religious belies. 3. Magistrate makes a definite finding on these points on the case record, including an indication of the questions asked and the answers received.

If the court is satisfied from the .If the court is not satisfied that the investigation

that

the

child child understands the nature and

understands the nature and obligations obligations of an oath, he will not allow of an oath

the child to be sworn or affirmed and

the child may then be sworn or will note this on the case record. affirmed and allowed to give evidence on oath

continue to question the child, now to ascertain where he is possessed of sufficient intelligence to justify the reception of the evidence, and whether the child understands the duty of speaking the truth. Make a definite finding on each of these points and record them on the case record, including an indication of the questions asked and the answers received.

If the findings are affirmative, after If you are not satisfied that the child is they have been recorded on the case possessed of sufficient intelligence to record, note that the child is being justify the reception of his evidence, or allowed to give evidence not on oath that he understands the duty of under that provisions of s.19 of the speaking the truth, the child will not be Oaths and Statutory Declarations Act.

allowed to give evidence at all.

4. It is necessary for the magistrate to warn himself on the case record whenever a child under the age of 14 gives evidence, whether it be on oath or unsworn. Complete warnings may be in language similar to the following:a. Where the child has been sworn or affirmed. I now warn myself that although A (the child) has given evidence on oath (or affirmation) and there is no necessity for corroboration as a matter of law, nonetheless it is dangerous to convict in the absence of corroboration unless there are exceptional circumstanes which provide strong reasons for doing so. b. Where the child has given unsworn evidence I now warn myself that in as much as the evidence of A ( the child) has been admitted in accordance, with s.19 of the Oaths and Statutory Delarations Act, under s.124 K.E.A. the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof. 5. The magistrate then proceeds to examine the records to determine whether there is corroboration for the evidence of the child. (see discussion of corroboration, pg. 75 et sec.). 6

If there is evidence corroborating the evidence of the child, it must be set forth in the

judgment, and hte evidence of the child will then be considered in reaching a decision. 7. If there is no corroborating evidence the lack of corroboration should be stated in hte judgment, The magistrate will then:(a) if the child’s evidence was give on oath, 1. acquit the accused if the sole evidence implicating him in the commission of the crime is that of the child, or

2. convict the accused even though the sole evidence implicating him is that of the child, but only after discussing on the case record the reasons of the fact that he is aware of the dangers of The reasons should be clearly

for doing so, in view

convicting on uncorroborated evidence.

stated, and they must be strong and convincing reasons.

(b) if the child’s evidence was unsworn as provided for in s.19 Oaths and Statutory Declarations Act, 1. acquit the accused if the evidence of the child is the sole evidence implicating the accused in the commission of the offence, or 2. If there is evidence in addition to that of the child which is, in itself, sufficient to convict the accused, the accused may be convicted, but the fact that the evidence of hte child is not being taken into account in reaching the decision should be clearly stated in the judgement. c. Compellability of ordinary witnesses All witnesses, in order to give testimony, must be competent, hbt all competent witnesses are not compellable; i.e. not all witnesses may be forced go give evidence if they do not wish to do so. Similarly, in the case of husband and wife, and institutions involving privilege, witnesses may not be allowed to give evidence even though they may wish to do so. Compellability means that a witness shall not be excused from answering any question as to any matter relevant to the facts in issue in the suit or criminal proceeding. Compellable witnesses must answer relevant questions whether or not he has the consent of the defendant (in a criminal case) or the party who summoned him as a witness (in a civil suit). The question arises only when the witness himself, or the party for whom he has been called to give evidence, objects to the answer being given. The general rule on the compellability of ordinary witnesses is set forth in s.128:-

128. a witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will incriminate, or may tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind, but no such answer which a witness is compelled to given shall subject him to any arrest or prosecution or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer. ................................. “ A common sense meaning should be given to the word ‘compelled’.

It is

impossible to deny that in the case of ordinary laymen unacquainted with the technical terms of this section, that they are compelled to answer on oath questions put either by the Court or by the counsel, especially when the question is relevant to the case. an answer given by a witness under such circumstances is protect by this section. Whether or not a witness is ‘compelled’ within the meaning of this section to answer

any particular

questions put to him while in the witness box is in each case a question of fact. “ RATANLAL p. 292. Section 152 C.P.C. deals with the procedure to be followed in the case of refractory witnesses, i.e. those who are subborn, obstinate, etc. 152. (1) Whenever any person, appearing either in obedience to a summons or by virtue of a warrant, or being present in court and being verbally required by the court to give evidence.(a) refuses to be sworn; or (b) having been sworn, refuses to answer any question put to him; or (c) refuses or neglects to produce any document or thing which he is required to produce; or

(d) refuses to sign his deposition, without in any such case offering any sufficient excuse for such refusal or neglect, the court may adjourn the case... Thus the discretion leis with the magistrate to determine whether the witness has, in the words of the seciton, “any sufficinet excuse”. Enquiry should be made and a ruling made. The remainder of the section sets forth the procedure to be followed if the witness still refuses to do that which is required hi. s. 128 sets forth what is not a sufficient excuse. In civil, as well as in criminal cases, a witness may feel that if he answers a particular question or questions he will be incriminated either directly or indirectly, i.e. that he may, by his answer, leave himself open to the laing of a criminal charge against him, or be liable to pay some forfeiture or penalty to which he would not be subjected if he does not answer. This fear of self-incrimination is, however, not a sufficient rason or excuse for failure to answer, owing to the protection which s.128 gives to the witness if he answers. No answer which the witness may give subject him to any arrest or any prosecution, nor may it be proved against him in any criminal proceeding, except in the case where the charge laid against him is one of perjury contra s.108 P.C. Privilege, of course, is a sufficient excuse, see infra. the questions must be relevant to the matter in issue, and if refusal to answer is based upon an objection of irrelevancy, a determination must be made before the witness is required to answer; see discussion as. 6 - 16 K.E.A., Chapter 1. If a witness voluntarily answers a question put to him without seeking hte protection of the section he is not, according to the Indian authorities, entitled to that protection, which extends only to those answers which the witness is compelled to give, presumably after objection or refusal to answer. See RATANLAL, pp. 291-2 and quotation above.

d. The husband-wife exception. Owing to the nature of the marriage relationship, a group of special rules of evidence have evolved in cases where one spouse is accused of an offence and the other is a potential witness, either for the prosecution or the defence. These rules involve both competency and compellability, as well as the privilege relating to the non-disclosure of communications during marriage. The relevant section is s.127 K.E.A. The definition of “husband” and “wife” in questions of competency and compellability in criminal cases is the same as in civil cases (see pp. 95-96, supra) as set forth in subs. (4).. The rules as set forth in s.127 concern situations where the husband or wife of the person charged is called as a witness (a) for the defence, (b) for the prosecution, and (c) is compellable for either the prosecution or defence without the consent of the accusedspouse. Subs.(2) and (3) read:(2) In criminal proceedings every person charged with an offence, and the wife or husband of the person charged, shall be a competent witness for the defence at every stage of the proceedings, whether such person is charged alone o jointly with any other person: (I) ... (ii)

save as provided in subsection 3 of this section, the wife or husband of

the person charged shall no be called as a witness except upon hte application of the person charged; (iii)

the failure of.. the wife or husband of (the person charged) to give evidence shall not be made the subject of any comment by the

prosecution. (3)

In criminal proceedings the wife or husband of the person charged shall be a

competent and comparable witness for the prosecution or defence without the consent of such person, in any case here such person is charged -

(a)

with the offence of bigamy; or

(b)

with an offence under Chapter XV of the Penal Code (which relates to certain offences against morality; or

(c)

in respect of an act or omission affecting the person or property of the wife or husband of such person or the children of either of them, and

not otherwise. 1Competency as a witness for the defence. The husband or wife of the person charged is a competent witness for the defence at any stage of the proceedings, provided that he or she is called as a witness on the application of the defendant- spouse. Failure to call the spouse as a witness shall not be the subject of any comment by the prosecution, save, it is submitted, as set forth on pp.88 and 93 in connection with the presumption contained in illustration (g) to s.119. Strangely enough, the setting contains nothing concerning the compellability of a spouse as a witness for the defence, and at present it appears that the husband or wife of the defendant cannot be compelled to give evidence on behalf of hte accused.

See

discussion, para. (d) (4) pg. 104. 2. No general competency as a witness for the prosecution. With the exception of those specific instances et forth in subs.(3) , a spouse is not a competent witness for the prosecution. This is borne out by the inclusion of the words “and not otherwise” which conclude the subsection.

The fact that the spouse is also not

compellable is inherent. 3. Competency and compellability for the prosecution in certain specified

cases:-

The only items when a spouse may give evidence for the prosecution - an in these cases the spouse is both competent and compellable - are when the defendant-spouse is charge with:-

(a)

bigamy conta s. 171 P.C.)

(b)

an offence contra one of the sections in Chapter XV P.C., sec 139-163

P.C, which deal with offences against morality. (c)

an offence affecting the person of the spouse (e.g. ASSAULT),, or the

property of the spouse (e.g conversion of the property of a wife by her husband, contara s. 273 P.C.); (d)

an offence against the person or property of the children of either husband or wife, whether born of the marriage or not.

The compellability of the wife is subject to the rules regarding the privilege concerning non-disclosure of communications made during marriage, s.130, infra. 4. Recommendations of the Commission on the Law of Marriage and Divorce As enacted, s. 127 is poorly arranged and every-complex, and the commission recommendation redressing into a number of shorter, more concise sections, so hte at all doubt as tot he competency and compellability of husband and wife as witnesses should be removed. The Commission also recommended that in such criminal cases where the spouse is both competent and compellable for the prosecution, since there will inevitably be ill-will, the accused-spouse should not be convicted on the uncorroborted evidence of the witness for the defence, and a competent, though not compellable witness for the prosecution at every stage of the proceedings where the defendant-spouse is charged with adultery or enticement, although the question of compellability will be of little significance if, as recommended, no prosecution for these offences could be instituted except on the complaint of hte spouse.

(Para.225).

as redrafted and renumbered, the section would read as

follows:Competency of spouses in civil suits. 127. In civil proceedings, hte parties to the suit and their spouses shall be competent an compellable witnesses: provided that no person shall be compelled to give evidence that he or she did or did not have marital intercourse with his or her spouse during any period of time.

Competency of accused in criminal proceedings. 127A. (10 In criminal proceedings, an accused person shall be a competent witness for hte defence at every stage of the proceedings, whether such person is charge alone or jointly with any other person: Provided that an accused person shall not be called as a witness except on his own application. (2) The failure of an accused person to give evidence shall not be made the subject of any comment by the prosecution. Competency of spouse as witness for the defence 127B (1) in criminal proceedings, the spouse of an accused person shall be a competent and compellable witness for hte defence at every stage of the proceedings: Provided that the spouse of an accused person shall not be called as a witness except on the application of that person. (2) The failure of the spouse of an accused person to give evidence shall not be made the subject of any comment by the prosecution. Competency of spouse as witness for the prosecution. 127C. 91) In criminal proceedings, the spouse of an accused person shall, subject to the provisions of subsections 92) and (3), not b competent on compellable as a witness for hte prosecution. (2) The spouse of an accused person shall be a competent and compellable witness for the prosecution at every stage of the proceedings where that person is charged(a) with the offence of bigamy; or any similar offence; or (b) with an offence under Chapter IV of the penal Code; or (c) in respect of an act or omission affecting the person or property of his or her spouse or the children of either of them. (3) The spouse of an accused person shall be a competent, but shall not be compellable, witness for the prosecution at every stage of the proceedings where that person is charge with adultery or enticement.

(4) An accused person shall not be liable to be convicted on evidence admitted under sub-section (2) or sub-section (3) unless it is corroborated by other material evidence in support thereof implicating him. c. Privileged communications during marriage A “privileged statement” is a statement which is made in such circumstances s to be protected form disclosure in court by a witness. Sections 129-139 deal with various types of privileged statements. In so far as husband-wife testimony is concerned, s.130 applies:130(1) No person shall be compelled to disclose any communication made to him or her during marriage, by the other spouse; nor shall a person be permitted to disclose such communication without the consent of the person who made it, or of his

or her

representative in interest, except in suits between the parties to the marriage or in any of the cases referred to in paragraphs (a) Ib) and (c) of section 127(3) of this Act. (2) In this section “marriage” means a marriage, whether or not monogamous, which is by law binding during the lifetime of the parties thereto unless dissolved according to law and includes a marriage under native or tribal custom. ...................... prior to the enactment of s.130(2) the dictate of HAMILTON, C.J. in the High Court of East Africa case R. v. Amkeyo, (1917), 7 E.A.L.R. 14, which drew a distinction between monogamous and polygamous marriages in cases involving he disclosure of a communication made during “marriage:, was binding. The result of this notorious case was. in effect, that the protections of the law with regard to privileged communication which has been extended to monogamous marriages made under statutory law was held not to extend to marriages which were polygamous, or even potentially polygamous, on the ground that polygamous marriages were not “marriages” in the tradition of one man-one woman, for life, to the exclusion of all others.

As a result not only were wives of

polygamous marriages held to be competent witnesses, but hte communications made during hte polygamous marriage were held to be admissible. See Robin v. R.,, (1929) 12 K.L.R. 134, R.v. Mwakio Asani s/o Mwanguku, 91932), 14 K.L.R. 133, R.v. toya s/o Kagure, (1932),

14

K.L.R.

145

R.

v. ..................................................................................................................wherein it was held that in Zanzibar a wife married acceding to native law or custom which rendered the marriage potentially polygamous was a competent witness against her husband on a charge of murder even though the marriage was, in fact, monogamous.

In Tanganyika the

distinction was incorporated in legislation in the C.P.C., see Laila Jhire Mawji and Another v. R., (1956), 23 E.A.C.A 609, 611 development

of

the

law

to

case provides a comprehensive review of the 1963

including

the

reasoning

in

the

various

cases............................................................ .......................................................... ............................................................................................................................................................ ............................................................................................................................................................ ............................................................................................................................................................ ......................... (a) In no instance may the...........................................be compelled to disclose any communication made during marriage. (b) The spouse without will be permitted to disclose communications made during marriage only 1. if permission to disclose is given by the defendant spouse in any case 2.without the permission of the defendant-spouse in:a. suits between the parties to the marriage, and b. where the defendant-spouse is charged with bigamy, an offence under Chapter XV P.C., or in respects of an act or omission affecting the person or property of the wife of husband of the defendant-spouse or the children of either of them referring to para. (a), (b) and (c) of s.127 (3) 1. “during marriage” The use of the words “during marriage” in s.130 is a phrase of limitation, therefore the following would apply:-

(a) If a man and a woman are not legally married as defined in subs.(2) the one may be compelled to disclose communicants and is a competent witness under the general rules of competency, since the privilege of non-disclosure extends only to the parties of a valid marriage. (b) If there is a valid marriage, any communications between the parties are privilege if made during the marriage, even though the marriage has been dissolved before hte former spouse is called upon to disclose a communication. (c) A communication made between the parteis to the marriage before the marriage took place is not privileged, and the witness-spouse may be compelled to disclose it even though there is a valid marriage subsisting at the item of the trial. It does not appear from the Act, however, whether this is subject to the wife being a competent witness at the time of the trial. Suppose, for example, in a case involving a charge of murder, the prosecution wishes to call the wife of the defendant to give evidence only about communication made before the marriage. Is there here an exception to the rule that a wife is not a competent witness against her husband in a case of this type since the only evidence which the prosecution seeks to elicit concerns non-privileged communications?

2. Communications in the hands of third parteis. A document, even though it contains a communication form spouse to spouse which is in hte hands of a third person is admissible in evidence when produced by the third party, for in producing it there is no compulsion on the spouse. Similarly, in R. v. Manga s/o Muleci, (1948), 15 E.A.C.A. 69, it was held that a communication made in public in the presence of other persons is not in he nature of a communication between spouse, and is not privileged. 3. Conditions precedent to admission of evidence of communications There is no provision in the K.E.A. similar to s.130(2) T.E.A. which reads:-

(2) where a person whom he court has reason to believe is the husband or wife of a person charged with an offence is called as a witness for the prosecution, the court shall, except in the cases specified in the proviso to subsection (1), ensure that such such person is before giving evidence of such person shall not be admissible unless the court has recorded in the proceedings that this subsection has been complied with. (Subs.(1) deals with general competency and compellabilty of spouses in criminal cases, see p.106). Despite specific statutory direction in the K.E.A., where the spouse is called as a witness for hte defence, the magistrate should take similar safeguards, not only to ensure under s.127(20 that the witness knows that while she is a competent witness, she is not compellable, and under s.130 to ensure that he witness knows that communications during marriage may not be disclosed except with the permission of the defendant-spouse unless the case is one under s.12(3), para. (a), (b) and (c). This permission should not be implied, but should be specifically given, and such permission should be recorded on the case record. 4. The Commission Report. If enacted, the Law of matrimony act, 196-will, by virtue of the second Schedule:1. Delete subs.(2) of s.130 defining “marriage” for the purposes of the section. marriage will thereafter be as defined in s.3(1) of he Interpretation and General Provisions act, i.e. a marriage contracted in accordance with or recognised as valid by the new Act. 2. Subs.(1) of s.130 will be renumbered s.130 and the words “paragraphs (a), (b) and (c) of section 127(3)” will be replaced with the words “subsection (2) or (3) of section 127C”. 5. Procedure during trial involving husband-wife testimony.

a) Criminal case - spouse a witness for the prosecution. (Assumed H is hte accused, W the witness).

1. magistrate becomes aware that witness, either offered or in the witness box, is or may be married to defendant. 2. If the charge is laid under cases listed in para, (a), (b) or (c) or s.127, witness is both competent and compellable

(a) in all other cases the witness will not be allowed to take the oath or give evidence, being neither competent nor compellable. (s.127(3) 3. If charge paid as sated in (2) , magistrate ensures that marriage is valid as defined in s.127(4) and notes on case record that Pw is the wife of the accused. 4. If wife refuses to answer a relevant question, magistrate warns witness that she must answer in accordance with s.128. If witness still refuses, magistrate follows procedures set forth in s.152 C.P.C. 5. If witness is asked by prosecutor to disclose communication made during marriage, or begins to disclose such communication:

a) magistrate stops witness form giving he answer, and b) warns the witness that while she is permitted to answer he question or disclose he communication without the consent of the defendant-spouse, she will not be compelled to o so. c) fact of warning under s.130 and witness’s answer recorded on case record. d0 If witness wishes to answer the question or disclose the communication, she is allowed to do so. If she does not wish to do so, the trial proceeds without the question having been answered or communication disclosed. recorded on the case record.

The fact that hte witness declined should be

6. If the communication was made before the parties were married the witness may be compelled to answer the question or disclose the communication. 7. If the communication was made after the marriage was dissolved, the witness, being both competent and compellable, may be compelled to answer the question.

Responsibility for determining when the communication was made rests with the magistrate. ................... b.Criminal case - spouse a witness for the defence If he charge is laid under cases listed in para. (a), (b) or (c) of s.127(3), the procedure above applies. In all other cases:-

1. magistrate becomes aware that witness, either offered or in the witness box, is or may be married to defendant.

2. Magistrate ensures that marriage is valid as defined in s.127(4) sad notes on case record that DW is wife of the accused.

3. magistrate ensures that witness was called upon the application of the defendant, and notes this fact on the case record. 4. The witness is not compellable and need not answer any questions which she does not wish to. The provisions of s.152 C.P.C. are not applicable.

5. If witness is asked by the defendant or his counsel to disclose a communication made during marriage, permission to do so has been given by the asking of the question. The witness, however, while permitted to disclose the communication, cannot be compelled to do so if she does not then wish to do so. 6. If the witness starts to disclose a communication made during marriage without having been asked to do so:-

a) magistrate stops witness from giving the answer, b) Enquires of the defendant or his representative in interest whether he objects to the communication being disclosed. 1.

If defendant does not object, this permission is recorded on the

case record and the witness is permitted to disclose the communication. 2.

if defendant objects, the witness is not permitted to disclose the communication and the trial proceeds.

In neither case may the

witness be compelled to disclose the communication if she decides then that she does not wish to do so. 6. The rules concerning when the communication was made, set forth in para.(6) - (8) in the witness for the prosecution section, apply.

...................... c. Civil case-husband and wife parties. 1. Both parties are competent, but not compellable.

2. parties may be permitted to disclose communications made during marriage without the consent of the other party-spouse, but may not be compelled to do so. .......................... d Civil case - spouse a witness whether for party-spouse or other party. 1. Witness - spouse is competent, but not comparable.

2. Witness-spouse may not disclose communicants made during marriage without the consent of the other spouse; query: does this cover all communications made during marriage even if the other spouse is not a witness or a party or the defendant/ 3. If permission is given, the witness-spouse may still not be compelled to disclose hte communication if she then chooses not to do so. f. Other privileges set forth in the K.E.A.. In addition to the privilege of non-disclosure of communions made during marriage, there are a number of other privileges set forth in the K.E.A.. The presumption set forth in illustration (g) under s.119 (see p.88) that evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it, does not apply to these situations, for there the privilege of withholding the information is a privilege specifically conferred by statue. These privileges arise for different reason:a) the source of the information sought, ie. where the information comes from and the relationship between the source and the interest of society as a whole: for example, privileges related to official records and communications, information concerning commission of offences, Bankers’ Books, tc. b) the position which the source of the information occupies; for example, the privileges of a court.

c) the nature of the relationship which gives rise to the privilege; for example the privilege concerning communications made to advocates. The subject of privilege is related to the question as to who may give evidence in the sense that the subject includes the question as to who may withhold evidence on the grounds of privilege. 1. Privilege of court 129. No judge or magistrate shall, except upon the special order of some court to which he is subordinate, be compelled to answer any questions as to his own conduct, in court as such judge or magistrate, or as to anything which came to his knowledge in court as such judge or magistrate, but he may be examined as to other matters which occurred in his presence while so acting. ...................... The basis of this rule appear to be that cross-examination or comment on judicial conduct, may be incompatible with the prestige of office; see NOKES,. p.192. This is one of the instances where the privilege is given to hte witness unless the appropriate order is given, hence the privilege could probably be waived. Judicial privilege extends only to the court’s own conduct while in court, and anything which came into his knowledge while he was acting as judge or magistrate, again in court. For example:On a trial in the High Court the defendant claims that a deposition taken before magistrate x was taken improperly. magistrate x cannot be compelled to answer any questions concerning the false evidence, since it involves something which came to his knowledge in court when acting as a magistrate, except upon special order of a court to which he is subordinate. If the matters about which the judge or magistrate is to be examined concern occurrences in his presence while acting as judge or magistrate, there is no privilege. For example:-

The defendant is on trial in the high Court of attempting to assault a Police Officer during a trial before magistrate S. s may be examined as to what occurred.

2 privilege relating to official records and communications. 131. Whenever it is stated on oath (whether by affidavit or otherwise) by a Minister, or by the Secretary-General of the Organization, that he has examined the contents of any document forming part of any unpublished official records, the production of which document has been called for in any proceedings, and that he is of the opinion that such production would be prejudicial to the public service, either by reason of the content thereof or of the fact that it belong to a class which, on grounds of public policy, should be withheld form such production, the document shall not be admissible.(*) This privilege is one given to one who is not called as a witness, and extends to a class of documents, unpublished official records. “the principle underlying this Crown privilege is that disclosure of some official information would be injurious to the interests of the State. Clearly the disclosure of a plan to meet an invasion n time of war would fall within this principle, as involving danger to the realm. But there are many less obvious injuries to the State, including the disclosure of matters relating to internationals diplomacy. Further, it has been asserted that an injury toe public service may be cased by the prospect of disclosure which hampers the freedom of officials to communicate unreservedly with each other.” NOKES, P. 185 The term “ Minister” is defined in s.3 of the Interpretation and General provisions Act (Cap.2) as substituted in the Schedule to the Statute Law (Miscellaneous Amendments) Act, 1967.

“ Minister” means a person appointed as a Minister of the Government of Kenya under the Constitution, or the President, Vice-President or the Attorney-General; ‘Minister” means the Minister for hte time being responsible for the matter in question. Also in s.3 of hte Interpretation and General provisions act is found:“the Organisation” means the East African Common Service Organisation established by Article 1 of the agreement set out in the schedule to the East African Common Service Organisation act;

The Act, Cap.4, has been repealed by the act establishing the East African Community (No.31 of 1967), but the definitions remain in the Interpretation and General Provisions Act under the new legislation. Example:A party to a suit or proceeding has called for hte production of a document which forms part of unpublished official record. The document will not be admissible in evidence provided: -that there is presented to the court a statement on oath, by affidavit or otherwise -signed by the Minister concerned or the Secretary-General of the Organization (if the document is a part of their unpublished official records) -which states that he has:1. examined the contents of the document; 2. that the document forms part of the unpublished official records of the Ministry (or Organisation);

3. that he is of the opinion that production of the document would be prejudicial to the public service by reason of a. the contents of the document, or b. the fact that the document belongs to the class of documents which, on the grounds of public policy, should be withheld form production. The court is bound to accept without question the decision of the Minister or SecretaryGeneral of the Organization. Last there be confusion as to the reason for the non-deletion of the definition of “the Organisation” since there is no longer an East African Common Services Organization in being, s.5 of the Treaty for East African Co-operation (No. 31 of 1967 provides for he transfer of offices and officers of the Common Services Organization to the east African Community, hence the Secretary-General of the Organisation is now hte Secretary-General of the E.A. Community. Amendment of s.131 to reflect this new legislation has been recommended

to

the

Attorney-General.

(NOTE

“Community”

substituted

for

“Organisation” Act NO. 20 of 1969.

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

3.Privilege of official communication.s 132. No public officer shall be compelled to disclose communications made to him in the course of his duty, when he considers that the public interest would suffer by hte disclosure. ............. Note that subs.(2) of S. 144 C.P..C sets forth that nothing in the section, dealing with compelling attendance of witnesses “shall affect the provision of sections 132 and 133 of the Evidence Act....” Therefore a witness in the position to make a claim of privilege under one

of these sections cannot be compelled to produce for the purpose of evidence documents and writings in his possession or power which are describes in hte summons so long as hte privilege is invoked. The recent case of Raishuma Ltd, v. Sondhi, [1967] e.a. 624 (C.A.) considered in detail the extent of the privilege granted to public officers under s.132.

The goods

deposited with a warehouseman under written terms which included an exemption clause were apparently stolen. A police officer giving evidence for hte warehouseman stated as his conclusion that the goods were stolen without the complicity of the defendant or his servants but, claiming privilege under the section, refused to state the facts upon which he reached his conclusion. The President of the Court stated the issue, which he described as “ a mater of the very greatest importance...’ in respect generally of hte administration of justice...” as follows:- (pp. 626-7)

“It was submitted that though s.132 of the Evidence Act (Cap.80) appears to be worried in the widest terms nevertheless some restriction must be placed on its ambit. It was urged that unless this was done the proper administration of justice would be undermined in two important aspects. First, a party to litigation would be precluded form placing before hte court relevant evidence where a claim of privilege is made without any examination of the justification for such claim. Secondly, where a claim of privilege is made the judge would be put in the position, as he was in this case, either of accept the conclusion of the witness without knowing hte facts upon which that conclusion is based, thus abrogating the judge’s duty of coming to a conclusion on the facts, or of discarding the evidence of the witness for hte very reason that to accept it would abrogate the judge’s functions.” After setting forth sections 131-133 with marginal notes and noting the present status of English case law on the subject, the Court discussed the distinction between ss.131 and 132:-

“It is to be noted that very broadly s.131 deals with what may be regarded as affairs of state and requires the claim to be made on oath by a Minister, or a person of equivalent status, that is by a person who would obviously be in a position to state whether or not the disclosure of any particular document would be prejudicial to the public interest, while s.133 deals with the non-disclosure of the names of informants and channels or information in relation to the detection of crime. Section 132 is, however, on the face of it extremely wide and would appear to give any public officer- a phrase which would include, having regard to the definition in the Interpretation and General Provisions Act (Ch.2), any person holding office, permanent or temporary, paid or unpaid, in the service of Kenya no matter how humble the office may be - the right to refuse to disclose information given to him in the course of his duty, if he considers that such disclosure would be contrary to the public interest.

If this section means what it appears to say then the most

extraordinary results will follow, results which I am sure the legislature never intended. (Giving examples)... A section which is designed to protect the interest of the State should not be construed in a manner which would endanger the interest of he State. That it is not the law is shown by the very existence of s.131 and 133 on each side of s.132. This being so it is clear that s.132 requires to be construed in a restrictive manner.” The Court then interpreted the word “official” in the marginal note to s.132:“In s.131 the word obviously means, in relation to a document, one which forms part of the records of an office, that is a department, of the State. Similarly in s.132 in relation to a communication, whether it be oral or written, I consider it means one which emanated internally form an office or department of state. It is wellknown that within government departments there are constant communications between public officers, come of which communications are secret and some of which are confidential. It is communications, whether oral or written, of this nature which hte section is designed to protect. I do not wish to la down any inflexible rule but I consider that broadly the privilege relates to official communications made to a public officer, whether orally or in writing, by (his) fellow public officers or by

persons holding political office in the State. Certainly I do not consider that the section means that a police officer may refuse to give evidence of any factual evidence in his possession arising from inquiries in respect of an ordinary crime unless some very good reason for claiming privilege exists.” (emphasis added). On the question as to what was means by the words “he considers that the public interest would suffer by the disclosure”, the Court said on p.629:“... although it must e hte public officer who decides t make the claim of privilege, having made it the judge may require that he be informed of the circumstances in which the claim is made so that he can determine whether the claim comes within the ambit of the section. if such is not broadly the construction to be given to this section then the course might, as regards the evidence of a public officer, be forever required to perform their functions in the dark. Such a position I could not but regard as being deplorable, contrary to public policy and contrary to the basic interests of the State, one of which interests is the proper administration of justice.” (emphasis added) SPRY, J.A.A agreed that the judge is entitled to make enquiries to satisfy himself that s.132 is being properly invoke, but in hi view this would not extend to considering whether the communication is in fact one the disclosure of which ought not to be compelled. The position, the, is summed up in the headnote, omitting reference to authors of opinions and dissenting opinion: “(a) ‘communications made to the official in the course of his duty’ read without the marginal note ‘privilege of official communications’ ordinarily relates to official communications made to a public officer form an official source; (b) if privilege is claimed the witness may be required by the court to explain the circumstances in which he privilege is claimed to enable the court to decide whether the public interest would suffer by the disclosure, but not to the extent of considering whether the communication is in fact one of which disclosure ought not to be compelled.’

.......................... 4. privilege relating to information of commission of offence 133.(1) No judge, magistrate or police officer shall be compelled to say whence he got any information as to hte commission of any offence, an no revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the law relating to the public revenue or to income tax or excise. (2) For the purposes of this section, “revenue officer” means any officer employed in or about the business of any branch of hte public revenue, inkling any branch of the income tax, customs or excise departments. ..................... Again the privilege lies with the witness. RATANLAL says at p. 285:-

“Although this section does not in express terms prohibit a witness, if he be willing, from saying whence he got his information, the protection afforded by this section does not depend upon a claim of privilege being made, but it is the duty of the Court, apart from objection taken, to exclude such evidence, If objection is taken, it cannot, since the law allows it, be made the ground of adverse inferences against the witness. (see also SARKAR P.1165)

The public policy involved in this instance is that the names of persons who assist in the detection of crimes through giving information should not be unnecessarily disclosed, for if they were disclosed they would soon either cease to give information or become useless to the police because they would become known to criminals. SARKAR on p.1166 notes certain limitation on the rule:

(1) It applies only to the Identity of the informant, not to the contents of his statement as such, for, by hypothesis the contents of the communication are to be used and published in the course of prosecution. Much less does the privilege apply to prevent merely the proof of contents which have already been de factoe disclosed, as in an action against the informer for libel. In this regard, note however the case of Bishen Chand Mohindra v. Mathra Dass, (1941), 19 K.L.R. (2) 67, wherein the plaintiff brought a case for criminal libel against the defendant, alleging that he had made certain defamatory remarks in a writen statement made to the Superintendent of Police.

At the trial the Superintendant objected to

producing the file in which the statement was contained, alleging that he was acting in accordance with the instructions of the Commissioner of Police. The Court distinguished the instant situation from that in majju v. lachman, 46 A. 671 which SARKAR cites as the authority for the limitation, saying on p.69 that Majju’s case was one. “in which it was held that statements contained in a report of an alleged offence made to a police officer were prima facie privileged but the privilege was qualified and not absolute. The case was a civil suit for damages for defamation and the defendants pleased justification admitting the correctness of the report. This is sufficient to distinguish the case form he present one, where the issue is whether a police officer can be compelled to produce a report without which it would seem that the applicant could not prove his case,... To put it another way, it is one thing to contend in a libel action that a defendant said certain words on a privileged occasion, and something completely different to ask that a public officer should disclose an official communication. Whether or not the communication was made to the police officer who was not summoned it must be regard as disclosed to any police officer into whose hands it came officially as disclosed to him in official confidence.” Thus the information was not only privileged under what is now s. 132, but under s.133(se.124 and 125 I.B.A)

(2) If the identity of the informer is admitted or known, then there is no reason for pretended concealment, and the privilege of secrecy would be merely an artificial obstacle to proof. (3) The privilege applies to communications to such officers only as have a responsibility or duty to investigate or prevent public wrongs, and not to officials in general. This ordinarily signifies the police, and officials of criminal justice generally. But it may also include admimistrative officials

having a duty of inspection or of law-

enforcement in their particular spheres. (i.e. revenue officers). Limitation (4) reads “ Even where the privilege is strictly applicable, the trial court may compel disclosure, if it appears necessary in order to avoid the risk of false testimony or to secure useful testimony”. This rule is not applicable in East Africa, as laid down in Kapoor Singh s/o Harnam Singh v. r., (1951) 18 E.A.C.A. 283 where counsel attempted to discover the name of hte person who had given information relating to the defendant’s possession of gold. Counsel cited in support of the proposition not only English cases but sections of the Tanganyika C.P.C. and s.17(2) of the Tanganyika Orer in Council, 1920, the general effect of which were that the practice and procedure of the criminal courts in England should be followed in the High Court, submitting that these authorities overrode the particular provisions of s.125 I.E.A... The Court, however, said on p.285:“ In our view, however, this proposition is unsound.

Secitn 125 of he Indian

Evidence act is clear and mandatory and in our view leaves no discretion to the Court. We were referred to a passage in Sarkar’s Commentary o the Indian Evidence Act, 7th edition. page 1203. Under the heading ‘Limitations of the ?Rule (4)’ appears the following comment:(quotation as above) But the authority cited for this is Marks v. Beyfus (189) 25 Q.B.D. 494) and in our view this is inconsistent with

the specific provisions of the section. se think that the effect of the sections is more correctly stated in Woodroffe and Ameer Ali on the Law of Evidence applicable to British India, 9th edition, page 934, as follows:`The court has under this section apparently no discretion to compel an answer even if it consider disclosure necessary to show the innocence of the accused.!" The remainder of Limitation (4) reads: "The source of information as to the commission of an offence is only prohibited and not the custody of any document or other material objects that might have been seized and tendered in evidence." In certain situation the privilege hinders, rather than assists, the prosecuton, for if the informer is not called as a witnesss, the evidence will not be admissible, being hearsay. An example is Njunga v. R., [1965] E.A. 773 (K), in which the appellant, driving a disguised car, was successfully chased by the police, acting on information received. Under the driver's seat was a simi, and the appellant was charged with the offence of being armed by day with intent to commit a felony contra s. 308(1)(d) P.C... Witnesses gave evidence saying that they had been told by a police informer that there was a plot to use the disguised car to commit an armed robbery, but the informer was not called to give evidence, nor was his name revealed. The Court said (p.774):"In this case the informer, whoever he was, may very well have given true information. Very possibly this disguised car was to be used to commit the felony of robbery. The driver of the car, the appellant, very possibly was a party to that felonious enterprise. Very possibly the simi which was under his seat was there to play its part in the robbery. But the knowledge which the court below had of this felonious enterprise was derived from what a Sergeant of Police told the court an uncalled, unnamed and unsworn individual had told him. Without that hearsay evidence the court below very clearly would have found it difficult, if not impossible, to have determined whether the applicant had the intent to commirt a felony and if so what felony." The difficulty which faces the prosecution was summed up:Informers play a useful part no doubt in the detection and prevention of crime, and if they become known as informers to that class of society among whom they work their usefulness will diminish and their very lives may be in danger. But if the prosecution desire

the courts to hear the details of the information an informer has given to the police, clearly the informer must be called as a witness." 5. Privilege of advocates If a legal advisor is to defend and represent his client to the best of his ability, he must have all the facts concerning the case, including those which are most damaging. It istherefore essential that clients feel secure in the knowledge that those admissions which he makes to his advisor are not to be revealed in court. Sections134 through 137 arebbasedupon this principle: that if communications to a legal advisor were not privileged, a man would be deterred from revealing his case completely, and would be denied the proper professional aid. (a) general privilege of advocates and their servants. 134.(1) No advocate shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purose of his employment and such advcate, by or on behalf of his client, or to state the contents or condition of ny documentwith whichhe has becmeacquainted inthecourse and for the purpose ofhis professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment. Providedthat nohing in his section shall protect from disclosure(a) any communication made in furtherance of any ilegal purpose; (b) any fact observed by any advocate in the course of his employment showing that any crime or fraud had been coomitted since his employment, whetherthe attention of such the fact by or on behalf of his

as such,

the commencement of

advocate was or was not directed to

client,

(2) The protection given by subsection (1) of this section shall continue

after the

emloyment of the advocate has ceased. ......... 135. The provisions of section 134 of this Act shall apply to interpreters, and the clerks or servants of advocates. ......... Note that the: 1. Communications to the advocate,

2. Contents or conditions of documents with which the Advocate has become acquainted, or 3. Advice given by the advocate to his client is privileged only if in the course of, and for the purpose of the advocate's professional employment in or on behalf of the client. No advocate is permitted to disclose any of the above wihout the express consent of the client, andbreaches of this professional conduct is strongly deprecated by the courts. For example, in Omari s/o Hassani v. R., (1956), 23 H.A.C.A. 580 the appellant had been convicted on two statements by the deceased that he was one of the persons who attacked him, and the judge, knowing that they should be accepted with caution, found corroboration in the appellant's refusal to give evidenceon oath, particularly asthe defending advocate informedthe Court that such refusal was against his advice. In discussing this (p. 582) the Court said:"Moreover the learnedJudge was undoubtedly strongly influenced by the assurance made to the Court by defending counsel that he had advisedthe accused to give evidence on oath. Secion 126 of the (Indian) evidence Act is to the effect, that no advocateshall be permited, unless with his client's consent, to disclose any advice given by him to his client in the course of his employment. it was we think quite wrong and a breach of professional confidencefor (counsel) to disclose to the Court that his client had refused to take his advice on this very difficult question, and the learned Judge should not have allowed this disclosure to affect his mind." Note that the proviso does not protect communicationsmade in furtherance of an illegal purpose, or certain facts observed. Examples:a. X and his Advocate, acting together, plan to falsify X's income tax returns. This is an illegfal purpose, and Y,, the advocate, could be compelled to disclose any communications between himself and X in this connection. b. X hires Y to assit him in preparation of his income taxreturns. In the course of preparing the necessary papers, X reveals that he made false entries in books of account after he employed Y. Y may be compelled to disclosethe fact in court.

c. Same facts as in (b), but Y learns of the false entries made from Z, the head bookkeeper employed by X. Y may be compelled to reveal the fact in court. d. Same facts, but in conversation with X, advocate Y learns that X has falsfied certain entries on customs forms, which has no bearing on the completion of income tax returns. Y may be compelled to revealthe fact in court, whether he learned of the fact from X himself, or from someone acting on behalf of X, such as Z, the head bookkeeper. Note he distinction between the prtection from disclosure of information of this sort received by the advocate as to acts or omissions concurring before commencement of the employemnt, which are protected, and after commencement of the employment, which disclosuresare not protected. Interpreters, clerks, or other servants of the advocate, such asshorthand typists, are aso subject to the provisions of s. 134 byvirtue of s. 133. e. When does a client give consent to disclosure? The mere fact that the client gives evidence himself, either by choice or otherwise, does not mean that hehas given consent to disclosure of the items listed in s. 134(1) by his advocate. 136.(1) If any party to a suit or proceeding gives evidence therein at his own instance or otherwise, he shall not be deemed to have consentee thereby to such disclosure as is mentionedin section 134(1) of this Act. ............ Even, however, if the advocate, interpreter, etc. is called as a witnes by the client, consent to disclosure is granted only if questions are asked about these matters. (2) If any party to a suit or proceding calls any advocate, interpreter, clerk or servant as a witness, he shall be deemedto have consentee to such disclosure as is mentioned in section 134(1) of this act only if he questions such witness on matters which, but for such question, the witness would not be at liberty to disclose. ............. (c) Under what circumstances may the client himself be compelled to disclose confidential communications? Section 137 sets forth certain limited situations in which disclosure by the cient may be compelled:-

137. No one shall be compelled to disclose to the court any confidential communication which has taken place between him andhis advocate unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may apear to the court necessary to be known in order to explain any evidence which he has given, but no others. ............... This section extends the privilege of non-disclosure to the client except in certainly narrowly defined instances which rest within the discretion of the court. It would appear from the plain language of the section that while the opposing party might argue that he disclosure is necessary for full explanation ofthe evidence which theclient has given after offering himself as a witness, the decision will rest with the court dependentupon the court's desire for further explanation. The seciton appears to exclude calling for disclosure when theclient is called as witness by the opposing party. Thescope of application is set forth in Munchershaw v. N. B. Co. 4 B. 576 as found in SARMAR, pp. 1183-4:"....it was contended that though a client could not, under this section, be compelled to disclose to the court a case, submitted by him to his counsel for opinion, yet the other party was entitled to demand inspection udner s.130 (of the C.P.C., 1882). WEST, J., however, declined to order the production of the paper and observed: `A compulsory disclosure of confidential communications is so opposed to the popular conscience on that point that it would lead to frequent falsehood as to whathad really taken place. The rule of protection seems to me to be one which should be construed in a sensemost favourable to bringing professional knowledge to bear effectively on the facts out of which legal rights and obligationsarise, and disclsuresmade under s. 129 should not be enforced in any cases except where they are plaintly necessary." Communications between the client and hird persons in preparation for litigation are not privileged under the seciton. RATANLAL on p. 289 summarizes:"Letters written by one of the defendant's servants to another, for the purpose of obtaining information with a view to possiblefuture litigation, are not rivileged, even though they might, under the circumstances, be required for the use of the defendant's

solicitor. In order that privilege may be claimed, it must beshown on the face of the affidavit that the documents were prepared or written merely for the use of the solicitor.

Reports made by defendant's servants to the defendant regarding the

subject-matter of the suit are not privileged." 6. Privelege as to title deeds and incriminating documents in the hands of a third party 138. No witness who is not a party to the suit shall be compeled to produce his title deeds to any propert, or any document in virtue of which he holdsany property as pledgee or martgagee, or any document the production of which might tend to to incriminate him, unless he has agreed in writing with the person seeking the production of such deeds or document, or with some person through whom he claims, to produce them. This privilege, arising out of the English law at a time when there was no registration of title deeds, protected witnesses who were not parties to the suit. The privilege has been severely criticized where registration procedureshave been incorporated into the law. SARKAR, p. 1187, says:"The titl-deeds to land were in England always a secret of extraordinary importance (before the modern system of title registration0. paramount object.

The safety of landed interests wasa

Now, under any title-system not founded on compulsory public

registration, the secrecy of the title-instruments comes to be a vital consideration for the occupants of the land. But under a system of compulsory public registration of titles or of conveyances there is in such pivilege neither necessity nor utility. Those who do not register their deeds are few in number, they voluntaily take the risk of loss; and their situation does not justify special protection. Those who do record or register their deeds have no need for such protection; their title, in general, stands or falls by what is publicly recorded, not by what they privately possess. Accordingly,, in the United states, this exceptional privilege has not been judicially sanctioned." As to documents which might tend to incriminate the witness, books of account cannot be withheld on this ground, nor does the section protect a witness when the production of the document might only make him liable for a civil action. 7. Privileged document in possession of another.

139. No one shall be compelled to produce documents in his possession, which any other person would be entitled to refuse to produce if they were in his possession, unless such other person consntsto their production. ............. This section given the same protection to those who are in the possession of documentswhich belong to others, attorneys, agents, mortgagees, etc., as s. 138 gives to witnesseswho are not parties to the suit. However the persn in possesson of the document may be allowed to produce the document if he wishes, even though others would be entitled to refuse to produce them if they themselves has possession; the privilege rests with the one in possession unless consent to production is given by the other person, in which case production may be compelled. It shouldbe noted that if a witness is entitled to refuse to produce a document, and cannot be compelled to poduce it, he will also not be cvompelled to give evidence as to its production, for then the privilege would be meaningless. 142. Np person who is entitled to refuse to produce a document shall be compelled to give oral evidence of its contents.

ILLEGALLY OBTAINED EVIDENCE Evidence which is obtained by means or acts which are illegal or against the law.

How does a court faced with illegally obtained evidence deal with the evidence, for example evidence obtained in violation of the constitution? It could also be evidence obtained in breach of other statutes A common way in which evidence is obtained illegally is through illegal searches and illegal seizures e.g. breaking into somebody’s house and obtaining evidence, through deception, threats, bribes inducement or trickery. The issue has to be looked at in two ways 1.

Section 20 of Police Act

2.

Section 118 of Criminal Procedure Code

S. 118 of the Criminal Procedure Code deals with the power that is given to search places. The power that a Magistrate or police officer may be permitted to search any place, building, ship, aircraft, vehicle, box or receptacle but they have to do this through a certain procedure i.e. Search warrant. Essentially if you search and find something you are allowed to seize it. It could be a thing or document. If you do not have a search warrant the search may be said to be illegal. Section 20 of the Police Act empowers police officers investigating offences to search any place that they believe has material necessary for the purposes of the investigation. The requirement to get a search warrant may be dispensed with in instances where a police officer believes that the process of getting the warrant is going to cause unreasonable delay. In these instances what is required is that the officer should record in writing the basis upon which they form the opinion that if they go looking for a search warrant there is going to be inordinate delay. There are two approaches to illegally obtained evidence 1.

Mandatory inclusion;

2.

Mandatory Exclusion

Under common law jurisprudence there is mandatory inclusion whereas under US Jurisprudence there is Mandatory Exclusion.

In common law the status is accurately represented by the following words “it matters not how you get it, if you steal it even, it would be admissible in evidence” statement by Justice Crompton in R V. Leatham The only exception that is entertained under common law is where the evidence consists of a confession which has been obtained in consequence of some inducement or oppression. Even though Crompton says it does not matter how you get it, it will matter if there is inducement or oppression. A confession that is obtained as a consequence of the deception or inducement of the person confessing is not admissible even though it be relevant. E.g. a confession made to a colleague to a person in jail has been held not to be confessed to a person in authority. In civil cases there is no discretion to exclude admissible evidence. But even in criminal cases there is a conflict between 2 positions i.e. where you admit all relevant evidence to ensure that the guilty are punished and then there is the view that to admit improperly obtained evidence condones and encourages impropriety on the part of the police. i.e. why go through proper channels if you can obtain evidence illegally. There is no provision in the Evidence Act to guide us. For instance if somebody got evidence through phone tapping is it admissible? We look to the constitution which protects persons against being subjected to the search of their person or property without their consent. It also protects against entry to your property by others without your consent. Under common law, there is the proposition that all relevant evidence is admissible regardless of the fact that it was obtained illegally. Is this a good way to view evidence in light of sometimes the excesses that police can be prone to? A person may be accused but they still have certain rights. It is better that 99 guilty people go free than one innocent person to be found guilty. It is much better that one occasional criminal go free than to condone illegal procuring of evidence. Evidence which is relevant to a fact in issue is relevant no matter how it was obtained.

Lloyd V. Mostyn 1842 10 M&W 478 where Chief Justice Goddard says that the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained. This case was quoted with approval in the case of Kuruma s/o Kaniu v. R 1955 1 AELR 236 The Appellant was convicted with being in unlawful possession of two rounds of ammunition contrary to Regulation 8 of the emergency regulations of 1952. Under the Emergency Regulations only a police officer or an officer above the rank of assistant inspector was empowered to stop and search an individual. The appellant was an employee of a European settler farmer and had been granted leave of absence to go to his rural home in the reserve. He was stopped at a roadblock, a police constable stopped him and on searching him found him with the two rounds of ammunition and a penknife. 3 persons witnessed the search but were not called to testify. The accused was charged and convicted of this capital offence and sentenced to death. He appealed contending that the evidence used to convict him was illegally obtained. The court held that the evidence was properly obtained in line with Justice Crompton statement in Lloyd v. Mostyn.

King V. R 1969 1 AC 304 Police obtained a search warrant to search a house belonging to one Joyce Cohen looking for Ganja and this was under the Dangerous Drugs Act. They read the warrant to Joyce Cohen but apart from Joyce Cohen, there was the Appellant in Joyce Cohen’s House when the police came and they did not read the warrant to the visitor. The police however searched the appellant and another man in the house and they found the appellant with the drug. The Appellant was tried and convicted for possession of dangerous drugs and he appealed arguing that the warrant was not directly read to him and thus he was not legally searched. The court should have excluded the evidence found on his person because the evidence was unfair to him. The court held that there was no way of interfering with the way in which the court exercised its discretion and the court went further to say that this was not a case in which evidence had been obtained by conduct which was irreprehensible insinuating that if the conduct had been irreprehensible the court would have allowed the appeal. There was a bit of discussion about constitutional rights concerning illegal searches.

The court in R V. King referred to the case of R v Payne [1963] 1 AER 848 Where illegally obtained evidence was excluded but it refused to be guided by this case. The facts of this case are that the defendant was taken to a police station following a traffic accident. He was asked whether he wanted to see a doctor, he agreed to see a doctor. At no time had he been told that the results of the examination might be used in evidence against him. It was not made clear to him that the doctor would enquire on whether he was fit to drive. At the trial for drunk driving the doctor gave evidence that the driver was driving under the influence of alcohol and the defendant was convicted. He appealed. The appeal court quashed the conviction on the ground that even though the evidence was admissible, had the accused realised that the doctor would give evidence on the matter of driving under the influence of alcohol, he might have refused to submit himself for examination and in refusing to be guided by this case, the court in King v R stated that there was no evidence in the King’s case of oppressive conduct or trickery on the part of the police. The court essentially seems to be saying that illegality is graded, ie. That there is illegality that can be allowed to pass but there are cases when it is reprehensible. Jeffrey V. Black [1978] QB 490 The defendant was arrested by 2 police officers of the drug squad for stealing a sandwich from a public house. The officer improperly searched his home and found Cannabis and the defendant was subsequently charged with possession of drugs. The accused put up in his defence that his house was searched illegally. The first court ruled out the evidence of the search as inadmissible having been illegally obtained. The prosecution appealed and the appeal was allowed. The Appeal court held 1.

That the mere fact that evidence is obtained in an irregular fashion does not of itself prevent that evidence from being relevant and acceptable to court;

2.

Any court has the discretion to decline to allow any evidence brought by the prosecution if they think it will be unfair or oppressive to allow it.

R V. Sang [1979] 2 AER P 1222 The Appellant was charged with conspiracy to utter forged US Bank Notes. He pleaded not guilty before the case opened. Counsel for the Appellant applied for a trial within a trial to show

that the Appellant had been induced to commit the offence by a police informer acting on the instructions of the police. The appellant was averring that for the inducement, he would not have committed the offence. Counsel was hoping to persuade the judge to exercise his discretion to disallow the evidence of the commission of the offence. The Judge however ruled that he had no discretion to exclude the evidence. The appellant changed his plea to guilty and was convicted and sentenced. He appealed against the judgment and the appeal was allowed by the court of appeal and then the state appealed to the House of Lord. The House of Lord held that 1.

A Judge in a criminal trial always has discretion to refuse to admit evidence if its prejudicial effect outweighs its probative value;

2.

Except in the case of admissions, confessions and evidence obtained from an accused after the commission of an offence, a Judge has no discretion to refuse to admit relevant admissible evidence merely because it had been obtained by improper and unfair means.

3.

The use by the police of an agent provocateur or an informer to obtain evidence was not a ground on which the discretion should be exercised. Such a factor may however be considered in mitigating the sentence imposed on the accused.

4.

The defence of entrapment had no place in English Law and could not be accepted by a Judge as a ground for exercising the discretion to exclude the prosecution’s evidence of the commission of the crime.

It would appear that the R v. Sang articulates the common law stand succinctly if evidence is relevant to a fact in issue it is admissible provided it is not obtained under inducement, confession or after the commission of an offence. The common law position is almost the opposite of the position which exists in the US Today. The US Jurisprudence tries to run away from the law. The law that is used to exclude illegally obtained evidence is the 4 th Amendment which reads as follows:“the right of the people to be secure in their persons, houses, favours and effects against reasonable searches and seizures shall not be violated and no warrant shall issue but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.”

The question as to whether illegally obtained evidence is admissible in the US has been debatable.

Weeks V. United States 232 US 283 The police went to defendant’s house without warrant, they searched and took possession of various papers and articles that they found in that house and these were turned over to the courts. The police later went to the premises hoping to get more evidence and carried away more letters and this second search was also without a warrant. The whole question as to whether evidence obtained by the police and the prosecutor was admissible was discussed and the judges stated “if letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offence, the protection of the 4th Amendment is of no value.” This was a Supreme Court Decision .

In Wolfe V. Colorado it was suggested that there was need for a uniform rule, even after the Weeks case the courts had continued to apply common law rules and in this case of Wolfe the court decided to have a uniform rule.

In Map V. Ohio 367 US P 643 The defendant was convicted in an Ohio state court for possession of obscene literature. The conviction was affirmed by the Ohio Court of Appeal and later by Ohio state supreme court. The obscene materials were discovered during a search that was not subject to a warrant on the defendant’s house. The Ohio supreme court held that evidence obtained by an unlawful search and seizure is admissible in a criminal prosecution. The court continued to state that under the Supreme Court of United States in Wolfe v. Colorado a state was not prevented by federal constitution from adopting the rule as it prevailed in Ohio. On appeal to the US Supreme Court it was held that as a matter of due process evidence obtained by a search and seizure in violation of the 4 th amendment is inadmissible in a state court as it is in a federal court. If the supreme court holds evidence to be inadmissible it should apply across the board.

The US Courts have gone even further and held that even if the evidence is not obtained illegally, where such evidence is obtained in such a manner as to be reprehensible according to the spirit of the constitution, such evidence shall not be admissible.

Note the importance that

jurisprudence attaches to people’s rights.

In Kenya the reigning position is that in Kuruma s/o Kaniu v. R. This Case has been criticised in the context within which it was decided. It was decided during emergency regulation times not withstanding provisions of S. 76 of the Constitution. The position seems to be that the end justifies the means.