- Commenced on 1 July 1967
- [This is the version of this document at 30 November 2019.]
1. Short titleThis Act may be cited as the Evidence Act.
2. ApplicationExcept as otherwise provided in any other law this Act shall apply to judicial proceedings in all courts, other than primary courts, in which evidence is or may be given but shall not apply to affidavits presented to any court or officer not to arbitration proceedings.
4. Permissible inferencesWhenever it is provided by this Act or any other written law that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or the court may call for proof of it.
5. PresumptionsWherever it is provided by this Act or any other written law that the court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.
6. Conclusive proofWhen one fact is declared by this Act or any other written law to be conclusive proof of another, the court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.
The relevancy facts
Part I – General
7. Evidence may be given of facts in issue and relevant factsSubject to the provisions of any other law, evidence may be given in any suit or proceeding of the existence or nonexistence of every fact in issue, and of such other facts as are hereinafter declared to be relevant, and of no others.
8. Relevancy of facts forming part of same transactionFacts 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.
9. Facts which are the occasion, cause or effect of facts in issueFacts which are the occasion, cause or effect, immediate or otherwise, of relevant facts or facts in issue or which or constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transactions, are relevant.
10. Motive, preparation and previous or subsequent conduct
11. Facts necessary to explain or introduce relevant factsFacts necessary to explain or introduce a fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of anything 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.
12. Things said or done by conspirator in reference to common designWhere 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 referring to or in execution or furtherance of 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.
13. When facts not otherwise relevant become relevantFacts not otherwise relevant are relevant—
14. In suits for damages, facts tending to enable court to determine amount which are relevantIn 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.
15. Facts affecting existence of right or customWhere the existence of any right or custom is in question, the following facts are relevant—
16. Facts showing existence of state of mind or of body, or of bodily feeling
17. Facts bearing on question whether act was accidental or intentionalWhen 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.
18. Existence of course of business when relevantWhen 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 a relevant fact.
Part II – Admissions
19. Admission definedAn admission is a statement, oral, electronic 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.[Act No. 13 of 2015 s. 43]
20. Statements by party to suit or agent or interested party
21. Admissions by persons whose position must be proved as against party to suitStatements made by persons whose position or liability it is necessary to prove as against any party to the suit are admissions if such statements would be relevant 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.
22. Admissions by persons expressly referred to by party to suitStatements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute, are admissions.
23. Proof of admissions against persons making them, and by or on their behalfAdmissions are relevant and may be proved as against the person who makes them or his representative in interest, but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases—
24. Oral admissions regarding contents of documentsOral admissions as to the contents of a document are not relevant, 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 rules hereinafter contained, or unless the genuineness of a document produced is in question.
25. Admissions made without prejudice in civil cases
26. Admissions not conclusive proof, but may estopAdmissions are not conclusive proof of the matters admitted, but they may operate as estoppel under the provisions of this Act.
Part III – Confessions
27. Admissibility of confessions to police officers
28. Confessions before magistrateA confession which is freely and voluntarily made by a person accused of an offence in the immediate presence of a magistrate as defined in the Magistrates’ Courts Act, or a justice of the peace under that Act, may be proved as against that person.[Act No. 19 of 1980 s. 5; Cap. 11]
29. Confession caused by inducement, threat or promiseNo confession which is tendered in evidence shall be rejected on the ground that a promise or a threat has been held out to the person confessing unless the court is of the opinion that the inducement was made in such circumstances and was of such a nature as was likely to cause an untrue admission of guilt to be made.
30. Confession made after removal of impression caused by inducement, threat or promiseWhere an inducement has been made to a person accused of an offence in such circumstances and of such a nature as are referred to in section 29 and a confession is made after the impression caused by the inducement has, in the opinion of the court, been fully removed, the confession is relevant and need not be rejected.
31. Relevance of information received from accused in police custodyWhen any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, is relevant.
32. Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc.Where a confession referred to in section 29 is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practised on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever may have been the form of those questions, or because he was not warned that he was not bound to make such confession, and that evidence of it might be given against him.[Cap. 4 s. 8]
33. Confession may be taken into consideration against co-accused
Part IV – Statements by persons who cannot be called as witnesses
34. Statement of persons who cannot be called as witnessesStatements, written, electronic or oral, of relevant facts made by a person who is dead or unknown, or who cannot be found, or who cannot be summoned owing to his entitlement to diplomatic immunity, privilege or other similar reason, or who can be summoned but refuses voluntarily to appear before the court as a witness, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court to be unreasonable, are themselves admissible in the following cases—
34A. Admissibility of certain trade or business records, etc
34B. Proof by written statements in criminal proceedings
34C. Proof by written statements in civil proceedings
35. Relevancy of evidence given in previous proceedings
Part V – Statements under special circumstances
36. Entries in books of accountEntries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the court has to inquire, but such statement shall not alone be sufficient evidence to charge any person with liability.
37. Entries in public recordsAny entry in any public or other official book, register or record, stating a fact in issue or 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 a relevant fact.
38. Statements, etc., in maps, charts and plansStatements 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 Government, as to matters usually represented or stated in such maps, charts or plans, are themselves relevant facts.
39. Statement of fact in laws, Gazettes, etcWhen a court has to form an opinion as to the existence of any fact of a public nature, any statement of it, made in a recital contained in any Act, or in any law of the United Republic duly promulgated, or in a notification of the Government appearing in the Gazette is a relevant fact.
40. Statements regarding law contained in booksWhen a court has to form an opinion regarding 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 that country and to contain that law, and any report of the ruling of the courts of that country contained in a book purporting to be a report of the rulings, are relevant.
40A. Evidence obtained undercover operationsIn any criminal proceedings—
Part VI – Extent to which statement is to be proved
41. What evidence to be given when statement forms part of a conversation, document, book, series of letters or papersWhen any statement of which evidence is given forms part of a longer statement, or of a conversation or part of an isolated document, or is contained in a document which forms part of a book, or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, book or series of letters or papers as the court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of the circumstances in which it was made.
Part VII – Relevancy of judgements
42. Previous judgements relevant to bar a second suit or trialThe existence of any judgement, order or decree which by law prevents any court from taking cognizance of a suit or holding a trial is a relevant fact when the question is whether such court ought to take cognizance of such suit or to hold such trial.
43. Relevancy of certain judgements in probate and other jurisdictions
43A. Relevancy of judgements in criminal proceedingsA final judgement of a court in any criminal proceedings shall, after the expiry of the time limit for an appeal against that judgement or after the date of the decision of an appeal in those proceedings, whichever is the later, be taken as conclusive evidence that the person convicted or acquitted was guilty or innocent of the offence to which the judgement relates.[Act No. 19 of 1980 s. 9]
44. Relevancy and effect of judgements, orders or decrees, other than those mentioned in section 43Judgements, orders or decrees other than those mentioned in section 43 are relevant if they relate to matters of a public nature relevant to the inquiry, but such judgements, orders or decrees are not conclusive proof of that which they state.
45. Relevancy of judgements, etc., other than those mentioned in sections 42 to 44Judgements, orders or decrees, other than those mentioned in sections 42, 43, and 44 are irrelevant unless the existence of such judgement, order or decree is a fact in issue, or is relevant under some other provision so this Act.
46. Fraud or collusion in obtaining judgement, or incompetency of court, may be provedAny party to a suit or other proceedings may show that any judgement, order or decree which is relevant under sections 42, 43 or 44, and which has been proved by the adverse party, was delivered by a court not competent to deliver it, or was obtained by fraud or collusion.
Part VIII – Relevancy of opinions of third person
47. Opinions of expertsWhen a court has to form an opinion upon a point of foreign law, or of science or art, or as to identity of handwriting or finger or other impressions, the opinion, upon that point of persons (generally called experts) possessing special knowledge, skill, experience or training in such foreign law, science or art or question as to identity of handwriting or finger or other impressions are relevant facts.
48. Facts bearing upon opinions of expertsFacts, not otherwise relevant, are relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant.
49. Relevancy of opinion regarding handwriting
50. Relevancy of opinion regarding existence of right or custom
51. Relevancy of opinion regarding usages, tenets, etc.When the court has to form an opinions as to—
52. Relevancy of opinion on relationshipWhen a court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:Provided that, such opinion shall not be sufficient to prove a marriage in any proceedings, whether civil, matrimonial or criminal under the Law of Marriage Act.[Cap. 29][Act No. 5 of 1971 2nd Sch.]
53. Grounds of opinionWhenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant.
Part IX – Relevancy of character
54. Character in civil cases
55. Good character in criminal casesIn criminal proceedings the fact that the person accused is of good character is relevant.
56. Bad character in criminal cases
57. Definition of "character"In this Part the word "character" includes both reputation and disposition but, except as provided in sections 54 and 56, evidence may be given only of general reputation and general disposition, and not of particular acts by which reputation or disposition were shown.
Part I – Facts requiring no proof
58. Facts judicially noticedNo fact of which a court takes judicial notice need be proved.
59. Facts of which court shall take judicial notice
60. Facts admitted in civil proceedings need not be provedNo fact need be proved in any civil proceeding which the parties thereto or their agents agree to admit at the hearing or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:Provided that, the court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.
Part II – Oral evidence
61. Oral evidenceAll facts, except the contents of documents, may be proved by oral evidence.
62. Oral evidence must be direct
Part III – Documentary evidence
63. Proof of contents of documentsThe contents of documents may be proved either by primary or by secondary evidence.
64. Primary evidence
64A. Admissibility of electronic evidence
65. Secondary evidenceSecondary evidence includes—
66. Proof of documents by primary evidenceDocuments must be proved by primary evidence except as otherwise provided in this Act.
67. Proof of documents by secondary evidence
68. Rules as to notice to produceSecondary evidence of the contents of the documents referred to in paragraph (a) of subsection (1) of section 67 shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his advocate, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as a court considers reasonable in the circumstance of the case:Provided that, the notice shall not be required in order to render secondary evidence admissible in any of the following cases—
69. Proof of signature or handwriting of person alleged to have signed or written documentIf a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.
70. Proof of execution of document required by law to be attestedIf a document is required by law to be attested, it shall not be used as evidence until one attesting witness has been called for the purpose of proving its execution, if there is an attesting witness alive and, subject to the process of the court, capable of giving evidence.
71. Proof where no attesting witness foundIf no attesting witness can be found or when the witness is not subject to the process of the court or is incapable of giving evidence, it must be proved that the attestation of one attesting witness is in his handwriting and that the signature of the person executing the document is in the handwriting of that person.
72. Admission of execution by party to attested documentThe admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it might be a document required by law to be attested.
73. Proof when attesting witness denies the executionIf the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.
74. Proof of document not required by law to be attestedAn attested document not required by law to be attested may be proved as if it were unattested.
75. Comparison of signature, writing or seal with others admitted or proved
Part IV – Bankers’ books
76. Definitions of Part IVFor the purposes of this Part—"bank" or "banker" means any person carrying on the business of banking in the United Republic, and for the purpose of sections 77, and 78, 79 and 80 includes any person carrying on the business of banking in any country, if his business as a banker is a relevant fact or is connected to a fact which is relevant in any proceedings;"Banker’s books" include ledgers, cash books, account books and any other records used in the ordinary business of the bank or financial institution, whether the records are in written form or a data message or kept on an information system including, but not limited to computers and storage devices, magnetic tape, micro-film, video or computer display screen or any other form of mechanical or electronic data retrieval mechanism;"court" means the court, judge, arbitrator or person or persons before whom legal proceedings are held or taken;"legal proceedings" means any civil or criminal proceedings or inquiry, including an arbitration, in which evidence is or may be given in the United Republic, and for the purposes of section 81 includes any such proceedings or inquiry in Kenya or in Uganda.[Act Nos. 19 of 1980 s. 10; 2 of 2007 s. 34]
77. Mode of proof of entries in banker’s booksSubject to this Act, a copy of any entry in a banker’s book shall in all legal proceedings be received as prima facie evidence of such entry and of the matters, transactions and accounts therein recorded.
78. Proof that book is banker’s book
78A. Electronic records
79. Verification of copy
80. Case in which banker, etc., not compellable to produce book, etcA banker or officer of a bank shall not, in any legal 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 Act, or to appear as a witness to prove the matters, transactions and accounts therein recorded, unless by order of a court made for special cause.
81. Court may order inspection, etc.On the application of any party to legal 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 and order 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 the same is to be obeyed unless the court otherwise directs.
82. CostsThe costs, under this Part, of any application to a court and the costs of anything done or to be done under an order of a court shall be in the discretion of the court which may order the same or any part thereof to be paid to any party by the bank where the same have been occasioned by any default or delay on the part of the bank and an order against a bank may be enforced as if the bank was a party to the proceedings.
Part V – Public documents
83. Public documentsThe following documents are public documents—
84. Private documentsAll documents other than public documents are private.
85. Certified copies of public documents
86. Proof of documents by production of certified copiesCertified copies of public documents may be produced in proof of the contents of the documents or parts of the documents of which they purport to be copies.
87. Proof of other official documentsThe following public documents may be proved as follows—
Part VI – Presumptions as to documents
88. Presumption regarding genuineness of certified copies
89. Presumption regarding documents produced as record of evidence
90. Presumption regarding Gazettes, newspapers, private Acts of National Assembly and other documents
91. Presumption regarding maps or plans made by authority of GovernmentA court shall presume that maps or plans purporting to be made by the authority of Government were so made and are accurate; but maps or plans made for the purposes of any legal proceedings must be proved to be accurate.
92. Presumption regarding collections of laws and reports of decisionsA court shall presume the genuineness of every book purporting to be printed or published under the authority of the Government of any country, and to contain any of the laws of that country, and of every book purporting to contain reports of decisions of the courts of any country.
93. Presumption regarding private documents executed outside the United RepublicA court shall presume that a private document purporting to be executed outside the United Republic was duly executed and the execution duly authenticated if—
94. Presumption regarding powers of attorneyA court shall presume that every document purporting to be a power of attorney and to have been executed before and authenticated by a notary public, or commissioner for oaths, any court, judge, magistrate, registrar, foreign service officer or diplomatic representative of a Commonwealth country, was so executed and authenticated.
95. Presumption regarding certified copies of foreign judicial recordsA court may presume that a document purporting to be a certified copy of any judicial record of a foreign country is genuine and accurate, if the document purports to be certified in any manner which is certified by a foreign service officer or diplomatic representative of a Commonwealth country to be the manner commonly in use in that country for the certification of copies of judicial records.
96. Presumption regarding books, maps and chartsA court may presume that a book to which it may refer for information on matters of public or general interest and that a published map or chart, the statements of which are relevant facts and which is produced for its inspection was written and published by the person, and at the time and place, by whom or at which it purports to have been written or published.
97. Presumption regarding telecommunications messagesA court may presume that message, forwarded from a telecommunications office to the person to whom the message purports to be addressed, corresponds with a message delivered for transmission at the office from which the message purports to be sent; but the court shall not make any presumption as to the person by whom such message was delivered for transmission.
98. Presumption regarding due execution, etc., of document not producedThe court shall presume that every document called for but not produced after notice to produce was attested, stamped and executed in the manner required by law.
99. Presumption regarding documents less than twenty years old
Part VII – The exclusion of oral by documentary evidence
100. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document
101. Exclusion of evidence of oral agreementWhen the terms of a contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to section 100, no evidence of any oral agreement or statement shall be admitted, as between the parties to that instrument or their representatives in interest, for the purpose of contradicting, varying, adding to or subtracting from its terms:Provided that—
102. Exclusion of evidence to explain patent ambiguityWhen the language used in a document is, on its face, ambiguous or defective, evidence may not be given of facts which would show meaning or supply its defects.
103. Exclusion of evidence against application of document to existing factsWhen language used in a document is plain in itself, and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such fact.
104. Evidence as to latent ambiguityWhen language used in a document is plain in itself, but is unmeaningful in reference to existing facts, evidence may be given to show that it was used in a peculiar sense.
105. Evidence regarding application of language which can apply to one only of several persons or thingsWhen the facts are such that the language used might have been meant to apply to any one, and could not have been meant to apply to more than one, of several persons or things, evidence may be given of facts which show which of those persons or things it was intended to apply to.
106. Evidence regarding application of language to one of two sets of factsWhen the language used in a document applies partly to one set of existing facts and partly to another set of existing facts but the whole of it does not apply correctly to either, evidence may be given to show to which of the two it was meant to apply.
107. Evidence regarding meaning of illegible characters, etcEvidence may be given to show the meaning of illegible or not commonly intelligible characters of foreign, obsolete, technical, local and regional expressions, of abbreviations and of words used in a peculiar sense.
108. Evidence of variation given by third partiesPersons who are not parties to a document or their representatives in interest may give evidence of any facts tending to show a contemporaneous agreement varying the terms of the document.
109. Saving of provisions of written law as to construction of wills, etcNothing in this Part shall be taken to affect the provisions of any other written law as to the construction of wills or other testamentary dispositions.
Production and effect of evidence
Part I – Burden of proof
110. Burden of proof
111. On whom burden of proof liesThe burden of proof in a suit proceeding lies on that person who would fail if no evidence at all were given on either side.
112. Burden of proof of particular factThe burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by law that the proof of that fact shall lie on any other person.
113. Burden of proving fact to be proved to make evidence admissibleThe burden of proving any fact necessary to be proved in order to enable a person to give evidence of any other fact is on the person who wishes to give such evidence.
114. Extent of burden of proof on accused
115. Burden of proving fact especially within knowledge in civil proceedingsIn civil proceedings when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
116. Burden of proving death of person known to have been alive within thirty yearsWhen the question is whether a man is alive or dead and it is shown that he was alive within the preceding thirty years, the burden of proving that he is dead is on the person who asserts it.
117. Burden of proving that person is alive who has not been heard of for five yearsWhen the question is whether a man is alive or dead and it is proved that he has not been heard of within the preceding five years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is on the person who asserts it.[Cap. 29 Sch.]
117A. Restriction of application of sections 116 and 117The provisions of sections 116 and 117 shall not apply to any proceeding under the Law of Marriage Act.[Cap. 29]
118. Burden of proof regarding relationship in the cases of partners, landlord and tenant, principal and agentWhen the question is whether persons are partners, landlord and tenant, or principal and agent and it has been shown that they have been acting as such, the burden of proving that they do not stand or have ceased to stand, to each other in those relationships respectively, is on the person who asserts it.
119. Burden of proof regarding ownershipWhen the question is whether any person is owner of anything to which he is shown to be in possession, the burden of proving that he is not the owner is on the person who asserts that he is not the owner.
120. Proof of good faith in transactions where one party is in a position of active confidenceWhen there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.
121. Birth during marriage and rebuttable presumption of legitimacyThe fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution the mother remaining unmarried, shall raise a rebuttable presumption that such person is the legitimate son or daughter of that man.
122. Court may presume existence of certain factsA court may infer the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Part II – Estoppel
123. EstoppelWhen one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon that belief, neither he nor his representative shall be allowed, in any suit or proceedings between himself and that person or his representative, to deny the truth of that thing.
124. Estoppel of tenant or of licensee or person in possessionNo tenant of immovable property or person claiming through such tenant shall, during the continuance of the tenancy, be permitted to deny that the landlord of the tenant had, at the beginning of the tenancy, a title to the immovable property; and no person who comes upon any immovable property by the licence of the person in possession thereof shall during the continuance of such licence be permitted to deny that such person had a title to such possession at the time when such licence was given.
125. Estoppel of acceptor of bill of exchangeNo acceptor of a bill of exchange shall be permitted to deny that the drawer had authority to draw the bill or to endorse it:Provided that, the acceptor of a bill of exchange may deny that the bill was actually drawn or endorsed by the person by whom it purports to have been drawn or endorsed.
126. Estoppel of a bailee or licenseeNo bailee or licensee shall be permitted to deny that his bailor or licensor had, at the time when bailment or licence commenced, authority to make such bailment or grant such licence:Provided that, if a bailee delivers the goods bailed to a person other than the bailor, he may prove that such person had a right to them as against the bailor.
Part I – Competency, compellability and privilege of witnesses
127. Who may testify
128. Dumb witnesses
129. Privilege of courtNo judge or magistrate shall, except upon the special order of some court to which he is subordinate, be compelled to answer any questions as to his own conduct in court as a judge or magistrate, or as to anything which came to his knowledge in court as a judge or magistrate, but he may be examined as to other matters which occurred in his presence whilst he was so acting.
130. Evidence of and by spouses
131. General competency of spouses in civil proceedingsIn all civil proceedings the parties to the suit and the husband and wife or wives of any party to the suit, shall be competent and compellable witnesses.[Act No. 19 of 1980 s. 13]
132. Privilege relating to official recordsWhenever it is stated on oath (whether by affidavit or otherwise) by a Minister, that he has examined the contents of a document forming part of any unpublished official records or communications received by a public officer in the course of his duty, the production of which document has been called for in any proceedings, and that he is of the opinion that the production would be prejudicial to the public interest either by reason of the contents thereof or of the fact that it belongs to a class which, on grounds of public policy, should be withheld from production, the document or a copy of it, shall not be admissible.[Act No. 19 of 1980 s. 14]
133. Information regarding commission of offences
134. Professional communication
135. Privilege of interpreters and advocates’ clerksThe provisions of section 134 shall apply to interpreters, and the clerks or servants of advocates.
136. Privilege not waived by volunteering evidence
137. Confidential communication with legal advisersNo person shall be compelled to disclose to a court any confidential communication which has taken place between him and his advocate or professional legal adviser, unless he offers himself as a witness, in which case he may be compelled to disclose any such communication as may appear to the court necessary to be known in order to explain any evidence which he has given, but no other communication.
138. Production of title-deeds of witness not a partyNo witness who is not a party to a suit shall be compelled to produce his title-deeds to any property or any document under which he holds any property as pledgee or mortgagee, unless he has agreed in writing with the person seeking the production of the title-deeds or another person through whom he claims to produce it.
139. Production of incriminating documentsNo witness who is not a party to a suit shall be compelled to produce a document, the production of which might tend to incriminate him, unless he has agreed in writing with the person seeking the production of that document or another person through whom he claims to produce it.
140. Production of documents which another person having possession could refuse to produceNo person shall be compelled to produce documents in his possession, which any other person would be entitled to refuse to produce if they were in his possession, unless such other person consents to their production.
141. Witness not excused from answering on ground that answer will incriminateA witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceedings, upon the ground that the answer to that question will incriminate, or may tend directly or indirectly to incriminate the witness, or that it will expose, or tend directly or indirectly to expose him to a penalty or forfeiture of any kind, or that it may establish or tend to establish that he owes a debt or is otherwise subject to a civil suit:Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any subsequent criminal proceedings, except to a prosecution for giving false evidence by such answer.
141A. Evidence in offences of receiving
142. Accomplice’s competence as witnessAn accomplice shall be a competent witness against an accused person; and conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
143. Number of witnessesSubject to the provisions of any other written law, no particular number of witnesses shall in any case be required for the proof of any fact.
Part II – Examination of witnesses
144. Order of production and examination of witnessesThe order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively and, in the absence of any such law, by the discretion of the court.
145. Court to decide on admissibility of evidence
146. Examination of witnesses
147. Order and direction of examinations
Part III – Questioning of witnesses
148. Cross-examination of person called to produce documentA person summoned to produce a document does not become a witness by the mere fact that he produces it and cannot be cross examined unless and until he is called as a witness.
149. Witnesses to characterWitnesses to character may be cross-examined.
150. Meaning of leading questionAny question suggesting the answer which the person putting it wishes or expects to receive is called a leading question.
151. Leading questions in examination-in-chief and re-examination
152. Leading questions in cross-examinationLeading questions may be asked in cross-examination.
153. Evidence as to matters in writingAny witness may be asked, whilst under examination, whether any contract or grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the court, ought to be produced, the adverse party may object to that evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.
154. Cross-examination on previous statements in writingA witness may be cross-examined on previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him or being proved, but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
155. Questions lawful in cross-examinationWhen a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend—
156. When witness to be compelled to answerIf any question asked under section 155 relates to a matter relevant to the suit or proceeding, the provisions of section 141 shall apply thereto.
157. Cross-examination of accused personA person charged with an offence who is called as a witness for the defence may be asked any question in cross-examination, notwithstanding that the answer may tend to incriminate him as to the offence charged.
158. Court to decide when questions shall be asked and when witness compelled to answer
159. Question not to be asked without reasonable groundsNo such question as is referred to in section 158 shall be asked, unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well founded.
160. Indecent and scandalous questionsThe court may forbid any questions or inquiries which it regards as indecent or scandalous, although such question or inquiries may have some bearing on the questions before the court, unless they relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue exist.
161. Questions intended to insult or annoyThe court shall forbid any question which appears to it to be intended to insult or annoy or which, though proper in itself, appears to the court needlessly offensive in form.
162. Exclusion of evidence to contradict answers to questions testing veracityWhen a witness has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him, but if he answers falsely he may afterwards be charged with giving false evidence:Provided that—
163. Discretion to allow cross-examination of own witnessThe court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.
164. Impeaching the credit of witness
165. Evidence tending to corroborate evidence of relevant fact admissibleWhen a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred, if the court is of opinion that such circumstances, if proved, would corroborate his testimony as to the relevant fact about which he testifies.
166. Former statements of witness may be proved to corroborate later testimony as to same factIn order to corroborate the testimony of a witness, any former statement, written or oral, made by that witness relating to the same fact made either at or about the same time when the fact took place or before any authority legally competent to investigate the fact, may be proved.
167. What matters may be proved in connection with proved statement relevant under section 34 or 35Whenever any statement, relevant under section 34 or 35 is proved, all matters may be proved either in order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross examination the truth of the matter suggested.
Part IV – Refreshing memory and production of documents
168. Refreshing memory
169. When witness may use copy of document to refresh memoryWhenever a witness may refresh his memory by reference to any writing he may, if the court is satisfied that there is sufficient reason for the non-production of the original and with the permission of the court, refer to a copy of such writing.
170. Expert may refresh his memoryAn expert may refresh his memory by reference to professional treatises.
171. Testimony to facts stated in document although facts themselves not specifically recalledA witness may also testify to facts mentioned in any document referred to in section 168 or 169, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document.
172. Right of adverse party relating to writing used to refresh memoryAny writing referred to in section 168 or 169 shall be produced and shown to the adverse party if he requires it and that party may, if he so desires, cross-examine the witness thereupon.
173. Production of documents
174. Giving, as evidence, of document called for and produced on noticeWhen a party calls for a document which he has given the other party notice to produce and the document is produced and inspected by the party calling for its production, the other party is bound to give it as evidence if the party producing it requires him to do so.
175. Using as evidence of document production of which was refusedWhen a party refuses to produce a document which he has had notice to produce, he may not afterwards use the document as evidence without the consent of the other party or without the order of the court.
176. Power of court to put questions or order production
Part V – Questions by assessors
177. Power of assessors to put questionsIn cases tried with assessors, the assessors may put any questions to the witness, through or by leave of the court, which the court itself might put and which it considers proper.
Improper admission and rejection of evidence
178. No new trial for improper rejection of evidenceThe improper admission or rejection of evidence shall not, of itself, constitute grounds for a new trial or reversal of any decision in any case if it appears to the court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that the rejected evidence, had it been received, the court would not have varied the decision.
179. Construction of other lawsSave 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.
180. Repeal and savingsRepeal and saving of laws.
Historia ya hati hii
01 Julai 1967