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Law of Contract (Mount Kenya University)
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LAW OF EVIDENCE 
 
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 
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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, 
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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. 
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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 
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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 
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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 partof 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. 
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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 
because 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 
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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. 
 
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 
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exist, and if so, to what extent. 
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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. 
 
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 
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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 tobe 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 courts, (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 
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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 
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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. 
 
 ‘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 is an exception to the hearsay rule. 
 
 
R V. BEDINGFIELD [1879] Vol. 14 Cox C.C. 341 (BAD LAW) 
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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 whoseattendance 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. 
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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. 
 
TEPER 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 
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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. 
 
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.” 
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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 thecause 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 
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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. 
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 symptoms, 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 occasion or opportunity, (b) of facts 
constituting an effect of a transaction (as the marks would be the effect of the struggle, and (c) of 
facts constituting the state of things under which an alleged fact happened. See John Makindi v 
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R. [1961], 332 (C.A) 
 
 
8. Any fact is relevant which shows or constitutes a motive or preparation for any 
fact in issue or relevant fact.” 
SECTION 8: 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. 
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 
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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 
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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? 
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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. 
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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. 
 
Section 9: Facts, which explain or introduce facts in issue, are relevant. 
 
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. 
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; 
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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. 
 
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SECTION 10: 
 
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 entertainedby 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. 
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 
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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 
 
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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 
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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 
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29 | P a g e 
 
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 inpursuance 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.” 
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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 
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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 
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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. 
 
 
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. 
 
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 
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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. 
 
An example which illustrates (a) above is the situation where an accused puts forthan 
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. 
 
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.” 
 
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:- 
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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. 
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.” 
 
 
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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. 
SIMILAR FACTS EVIDENCE: 
Section 14 and 15 deal with similar facts evidence. 
 
 
Section 14 and 15. 
 
 
13. (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. 
14. 
(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. 
 
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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. 
 
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The locus classicus 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