Evidence Act

Section 1. Short title. Section This Act may be cited as the Evidence Act.

Section 2. Application. Section 2(1) This Act shall apply to all judicial proceedings in or before any court other than a Kadhi’s court, but not to proceedings before an arbitrator. Section 2(2) Subject to the provisions of any other Act or of any rules of court, this Act shall apply to affidavits presented to any court.[ActNo. 17 of 1967, 1st Sch., ActNo. 10 of 1969, Sch.]

Section 3. Interpretation. Section 3(1) In this Act, unless the context otherwise requires—"admissible" means admissible in evidence;"advocate" has the meaning ascribed to that expression in the Advocates Act (Cap. 16), and includes any person entitled, pursuant to section 9 of that Act, to act as an advocate, whilst so acting in connection with the duties of his office;"bank" means a person or company or other body of persons carrying on, whether on his or their own behalf or as agent for another, any banking business (as defined in section 2 of the Banking Act (Cap. 488), and includes— Section 3(1)(a) a financial institution within the meaning of section 2 of the Banking Act (Cap. 488); Section 3(1)(b) the Kenya Post Office Savings Bank established by the Kenya Post Office Savings Bank Act (Cap. 493B); Section 3(1)(c) the Co-operative Bank of Kenya Limited; and Section 3(1)(d) for the purposes of subsections 176 and 177, any person or company or other body of persons carrying on banking business in Tanzania or Uganda; Section 3(1)(a) any thing, state of things, or relation of things, capable of being perceived by the senses; and Section 3(1)(b) any mental condition of which any p...

Section 4. Presumptions of fact. Section 4(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. Section 4(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. Section 4(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.

Section 175. Effect of improper admission or rejection. Section The improper admission or rejection of evidence shall not of itself be ground for a new trial or for reversal of any decision in a case if it shall appear to the court before which the objection is taken that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that if the rejected evidence had been received it ought not to have varied the decision.

Section 176. Mode of proof of entries in bankers’ books. Section Subject to the provisions of this Chapter of this Act, a copy of any entry in a banker’s book shall in all legal proceedings be received asprima facieevidence of such entry, and of the matters, transaction and accounts therein recorded.

Section 177. Proof and verification of copy. Section 177(1) A copy of an entry in a banker’s book shall not be received in evidence undersection 176of this Act unless it be first proved that— Section 177(1)(a) the book was, at the time of making the entry, one of the ordinary books of the bank; and Section 177(1)(b) the book is in the custody and control of the bank; and Section 177(1)(c) the entry was made in the usual and ordinary course of banking business; and Section 177(1)(d) the copy has been examined with the original entry, and is correct. Section 177(2) Such proof may be given by an officer of the bank, or, in the case of the proof required under paragraph (d) of subsection (1), by the person who has performed the examination, and may be given either orally or by an affidavit sworn before a commissioner for oaths or a person authorised to take affidavits.

Section 178. Restriction on compelling production of banker’s book. Section A banker or officer of a bank shall not, in any proceedings to which the bank is not a party, be compellable to produce any banker’s book the contents of which can be proved under this Chapter of this Act, or to appear as a witness to prove the matters, transactions and accounts therein recorded, unless by order of the court made for special cause.

Section 179. Inspection of bankers’ books. Section 179(1) On the application of any party to proceedings a court may order that such party be at liberty to inspect and take copies of any entries in a banker’s book for any of the purposes, of such proceedings. Section 179(2) An order made under this section may be made either with or without summoning the bank or any other party, and shall be served on the bank three clear days before it is to be obeyed, unless the court otherwise directs. Section 179(3) For the purposes of subsection (1), "proceedings" includes any proceedings in Tanzania or Uganda.[L.N. 22 of 1965.]

Section 180. Warrant to investigate. Section 180(1) Where it is proved on oath to a judge or magistrate that in fact, or according to reasonable suspicion, the inspection of any banker’s book is necessary or desirable for the purpose of any investigation into the commission of an offence, the judge or magistrate may by warrant authorize a police officer or other person named therein to investigate the account of any specified person in any banker’s book, and such warrant shall be sufficient authority for the production of any such banker’s book as may be required for scrutiny by the officer or person named in the warrant, and such officer or person may take copies of any relevant entry or matter in such banker’s book. Section 180(2) Any person who fails to produce any such banker’s book to the police officer or other person executing a warrant issued under this section or to permit such officer or person to scrutinize the book or to take copies of any relevant entry or matter therein shall be guilty of an offence and liable to imprisonment for a term not exceeding one year or to a fine not exceeding two thousand shillings or to both such imprisonment and fine.

Section 181. Costs. Section 181(1) The costs of any application to a court under or for the purposes of this Chapter of this Act and the costs of anything done or to be done under an order of a court made under or for the purposes of this Chapter, shall be in the discretion of the court, which may order them, or any part thereof, to be paid to any party by the bank where the costs were occasioned by any default or delay on the part of the bank. Section 181(2) An order under subsection (1) of this section may be enforced as if the bank was a party to the proceedings.

Section 182. Saving for other laws. Section Save as otherwise expressly provided in this Act, nothing in this Act shall be deemed to derogate from the provisions of any other written law which relate to matters of evidence.

Section 183. Cessation of application of Indian Evidence Act. Section 183(1) From and after the commencement of this Act the Evidence Act, 1872 (No. 1 of 1872) of India shall cease to extend or apply to Kenya. Section 183(2) For the purposes of sections 21 and 23 of the Interpretation and General Provisions Act (Cap. 2), the Evidence Act, 1872, of India, as it applied to Kenya prior to the commencement of this Act, shall be deemed to be a written law which has been repealed by, and re-enacted in, this Act.

Section 5. General restriction of admissibility of evidence. Section 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.

Section 6. Facts forming part of the same transaction. Section 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 occurred at the same time and place or at different times and places.

Section 7. Facts causing or caused by other facts. Section 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.

Section 8. Facts relating to motive, preparation and conduct. Section 8(1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. Section 8(2) 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. Section 8(3) 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. Section 8(4) The word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements.

Section 9. Explanatory or introductory facts, etc. Section 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 in so far as they are necessary for that purpose.

Section 10. Statements and actions referring to common intention. Section 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.

Section 11. Facts inconsistent with, or affecting probability of, other facts. Section if they are inconsistent with any fact in issue or relevant fact; or

Section 12. Facts affecting quantum of damages. Section 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 13. Facts affecting existence of right or custom. Section any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted or denied, or which was inconsistent with its existence; or

Section 14. Facts showing state of mind or feeling. Section 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. Section 14(2) A fact relevant within the meaning of subsection (1) of this section 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. Section 14(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) of this section, the previous conviction of such person is also relevant.

Section 15. Facts showing system. Section 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.

Section 16. Facts showing course of business. Section 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.

Section 17. Admissions defined generally. Section An admission is a statement, oral or documentary, which suggests any inference as to a fact in issue or relevant fact, and which is made by any of the persons and in the circumstances hereinafter mentioned.

Section 18. Statements by party to suit or agent or interested person. Section 18(1) Statements made by a party to the proceeding, or by an agent to any such party, whom the court regards in the circumstances of the case as expressly or impliedly authorized by him to make them, are admissions. Section 18(2) Statements made by parties to suits, suing or sued in a representative character, are not admissions unless they were made while the party making them held that character. Section 18(3) Statements made by— Section 18(3)(a) persons who have any proprietary or pecuniary interest in the subject- matter of the proceeding, and who make the statement in the character of persons so interested; or Section 18(3)(b) persons from whom the parties to a suit have derived their interest in the subject-matter of the suit,

Section 19. Statements by persons whose position or liability must be proved as against party to suit. Section Statements made by persons whose position or liability it is necessary to prove as against any party to a suit, are admissions if such statements would be admissible as against such persons in relation to such position or liability in a suit brought by or against them, and if they are made whilst the person making them occupies such position or is subject to such liability.

Section 20. Statements by persons expressly referred to by party to suit. Section Statements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions.

Section 21. Proof of admissions against persons making them, and by or on their behalf. Section when it is of such a nature that, if the person making it were dead, it would be admissible as between third persons undersection 33of this Act;

Section 22. Oral admissions as to contents of documents. Section Oral admissions as to the contents of a document may not be proved unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the provisions of this Act or unless the genuineness of a document produced is in question.

Section 23. Admissions made without prejudice in civil cases. Section 23(1) In civil cases no admission may be proved if it is made either upon an express condition that evidence of it is not to be given or in circumstances from which the court can infer that the parties agreed together that evidence of it should not be given. Section 23(2) Nothing in subsection (1) of this section shall be taken to exempt any advocate from giving evidence of any matter of which he may be compelled to give evidence undersection 134of this Act.

Section 24. Effect of admissions. Section Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions hereinafter contained.

Section 25. Confession defined. Section A confession comprises words or conduct, or a combination of words and conduct, from which, whether taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person making it has committed an offence.

Section 26. Confessions and admissions caused by inducement, threat or promise. Section A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible in a criminal proceeding if the making of the confession or admission appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

Section 27. Confession made after removal of impression caused by inducement, threat or promise. Section If such a confession as is referred to insection 26of this Act is made after the impression caused by any such inducement, threat or promise has, in the opinion of the court, been fully removed, it is admissible.

Section 28.[Repealed by ActNo. 5 of 2003, s. 100.]

Section 29. Confessions to police officers. Section of or above the rank of, or a rank equivalent to, Inspector; or

Section 30.[Repealed by ActNo. 5 of 2003, s. 101.]

Section 31.[Repealed by ActNo. 5 of 2003, s. 102.]

Section 32. Confession implicating co-accused. Section 32(1) When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take the confession into consideration as against such other person as well as against the person who made the confession. Section 32(2) In this section "confession" means any words or conduct, or combination of words and conduct, which has the effect of admitting in terms either an offence or substantially all the facts which constitute an offence—"offence" includes the abetment of, or an attempt to commit, the offence.

Section 33. Statement by deceased person, etc., when. Section relating to cause of deathwhen 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 into question;

Section 34. Admissibility of evidence given in previous proceedings. Section 34(1) Evidence given by a witness in a judicial proceeding is admissible in a subsequent judicial proceeding or at a later stage in the same proceeding, for the purpose of proving the facts which it states, in the following circumstances— Section 34(1)(a) where the witness is dead, or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or where his presence cannot be obtained without an amount of delay or expense which in the circumstances of the case the court considers unreasonable;and where, in the case of a subsequent proceeding— Section 34(1)(b) the proceeding is between the same parties or their representatives in interest; and Section 34(1)(c) the adverse party in the first proceeding had the right and opportunity to cross-examine; and Section 34(1)(d) the questions in issue were substantially the same in the first as in the second proceeding. Section 34(2) For the purposes of this section— Section 34(2)(a) the expression "judicial proceeding" shall be deemed to include any proceeding in which evidence is taken by a person authorized by law to take th...

Section 35. Admissibility of documentary evidence as to facts in issue. Section 35(1) In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say— Section 35(1)(a) if the maker of the statement either— Section 35(1)(a) had personal knowledge of the matters dealt with by the statement; or Section 35(1)(a)(i) had personal knowledge of the matters dealt with by the statement; or Section 35(1)(a)(ii) where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; and Section 35(1)(b) if the maker of the statement is called as a witness in the proceedings: Section 35(2) In any civil proceedings, the court may at any stage of the proceedings, if ha...

Section 36. Weight to be attached to statement admissible undersection 35. Section 36(1) In estimating the weight, if any, to be attached to a statement rendered admissible bysection 35of this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts. Section 36(2) For the purpose of any rule of law or practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated, a statement rendered admissible bysection 35of this Act shall not be treated as corroboration of evidence given by the maker of the statement.

Section 37. Entries in books of account. Section Entries in books of account regularly kept in the course of business are admissible whenever they refer to a matter into which the court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.

Section 38. Entries in public records. Section An entry in any public or other official book, register or record, stating a fact in issue or a relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself admissible.

Section 39. Statements, etc., in maps, charts and plans. Section Statements and representations of facts in issue or relevant facts made in published maps or charts generally offered for public sale, or in maps or plans made under the authority of any Government in the Commonwealth, as to matters usually stated or represented in such maps, charts or plans, are themselves admissible.

Section 40. Statements of fact contained in laws and official gazettes, etc. Section in any written law of Kenya, or in any notice purporting to be made in pursuance of any such written law, where the law or notice (as the case may be) purports to be printed by the Government Printer; or

Section 41. Statements as to law contained in books. Section When the court has to form an opinion as to a law of any country, any statement of such law contained in a book purporting to be printed or published under the authority of the Government of such country and to contain any such law, and any report of a ruling of the courts of such country contained in a book purporting to be a report of such rulings, is admissible.