Evidence Act

7. Evidence may be given of facts in issue and relevant facts

Subject 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 transaction

Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant whether they occurred at the same time and place or at different times and places.

9. Facts which are the occasion, cause or effect of facts in issue

Facts 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 facts

Facts 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 design

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 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 relevant

Facts not otherwise relevant are relevant—(a)if they are inconsistent with any become fact in issue or relevant fact; or(b)if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.

14. In suits for damages, facts tending to enable court to determine amount which are relevant

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.

15. Facts affecting existence of right or custom

Where the existence of any right or custom is in question, the following facts are relevant—(a)any transaction by which the right or custom in question was created, claimed, modified, recognised, asserted or denied, or which was inconsistent with its existence;(b)particular instances in which the right or custom was claimed, recognised or exercised, or in which its exercise was disputed, asserted or departed from.

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 intentional

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

18. Existence of course of business when relevant

When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact.

19. Admission defined

An 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 suit

Statements 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 suit

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

23. Proof of admissions against persons making them, and by or on their behalf

Admissions 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—(a)an admission may be proved by or on behalf of the person making it when it is of such a nature that, if the person making it were dead, it would be relevant as between third parties under section 34;(b)an admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable; and(c)an admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission.

24. Oral admissions regarding contents of documents

Oral 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 estop

Admissions are not conclusive proof of the matters admitted, but they may operate as estoppel under the provisions of this Act.

27. Admissibility of confessions to police officers

28. Confessions before magistrate

A 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 promise

No 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 promise

Where 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 custody

When 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

34. Statement of persons who cannot be called as witnesses

Statements, 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—(a)when the statement is made by a person as to the cause of his death 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, whether the person who made them was or was not, at the time when they were made under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question;(b)when the statement was made by such person in the ordinary course of business, and in particular when it consists of an entry or memorandum made by him in books or records kept in the ordinary course of business or the discharge of professional duty, or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind, or of the date of a letter or other document usually dated, written or signed by him;(c)when the statement is against the pecuniary or proprietary interest of the person making it or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages;(d)when the statement gives the opinion of any such person as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen;(e)when the statement relates to the existence of any relationship by blood, marriage, or adoption between persons as to whose relationship by blood, marriage, or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised;(f)when the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised;(g)when the statement is contained in any deed or other document which relates to any such transaction as is mentioned in paragraph (a) of section 15; or(h)when the statement was made by expressed feelings or impressions on their part relevant to the matter in question.[Acts Nos. 19 of 1980 s. 4; 13 of 2015 s. 44]

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

36. Entries in books of account

Entries 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 records

Any 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 plans

Statements 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, etc

When 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 books

When 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 operations

In any criminal proceedings—(a)an information retrieved from computer systems, networks or servers;(b)the records obtained through surveillance of means of preservation of information including facsimile machines, electronic transmission and communication facilities; or(c)the audio or video recording of acts or behaviours or conversation of persons charged,shall be admissible in evidence.[Act No. 2 of 2007 s. 33]

41. What evidence to be given when statement forms part of a conversation, document, book, series of letters or papers

When 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.

42. Previous judgements relevant to bar a second suit or trial

The 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 proceedings

A 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 43

Judgements, 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 44

Judgements, 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 proved

Any 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.

47. Opinions of experts

When 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 experts

Facts, 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—(a)the usages and tenets of any body of persons or family; or(b)the constitution and government of any religious or charitable foundation; or(c)the meaning of words or terms used in particular districts or by particular classes of people, the opinion of persons having special means of knowledge thereon are relevant facts.

52. Relevancy of opinion on relationship

When 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 opinion

Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant.

54. Character in civil cases

55. Good character in criminal cases

In 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.

58. Facts judicially noticed

No 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 proved

No fact need be proved in any civil proceeding which the parties thereto or their agents agree to admit at the hearing or which, before the hearing, they agree 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.

61. Oral evidence

All facts, except the contents of documents, may be proved by oral evidence.

62. Oral evidence must be direct

63. Proof of contents of documents

The contents of documents may be proved either by primary or by secondary evidence.

64. Primary evidence

64A. Admissibility of electronic evidence

65. Secondary evidence

Secondary evidence includes—(a)certified copies in accordance with the provisions of this Act;(b)copies made from the original by mechanical process which in themselves ensure the accuracy of the copy and copies compared with such copies;(c)copies made from or compared with the original;(d)counterparts of documents as against the parties who did not execute them;(e)oral accounts of the contents of a document given by some person who has himself seen it.

66. Proof of documents by primary evidence

Documents 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 produce

Secondary 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—(a)when the document to be proved is itself a notice;(b)when, from the nature of the case, the adverse party must know that he will be required to produce it;(c)when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;(d)when the adverse party or his agent has the original in court;(e)when the adverse party or his agent has admitted the loss of the document;(f)when the person in possession of the document is out of reach of, or not subject to, the process of the court;(g)in any other case in which the court thinks fit to dispense with the requirement.

69. Proof of signature or handwriting of person alleged to have signed or written document

If 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 attested

If 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 found

If 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 document

The 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 execution

If 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 attested

An 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

76. Definitions of Part IV

For 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 books

Subject 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, etc

A 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. Costs

The 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.

83. Public documents

The following documents are public documents—(a)documents forming the acts or records of the acts of—(i)the President of the United Republic;(ii)official bodies and tribunals; and(iii)public officers, whether legislative, judicial or executive;(b)public records kept in the United Republic of private documents.

84. Private documents

All documents other than public documents are private.

85. Certified copies of public documents

86. Proof of documents by production of certified copies

Certified 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 documents

The following public documents may be proved as follows—(a)Acts, orders or notifications of the Government of the United Republic, the Executive for Zanzibar, or any local government authority or of a Ministry or department of any of them—(i)by the records of the service, authority, Ministry, or department certified by the head thereof; or(ii)by any document purporting to be printed or published by order of the Government or other body concerned;(b)the proceedings of the legislatures in the United Republic, by the journals of those bodies respectively, or by published Acts or abstracts, or by copies, purporting to be printed by order of Government;(c)proclamations, orders or regulations issued by the President of the United Republic or of Zanzibar or by any department of the Government of the United Republic of the Executive for Zanzibar, by copies or extracts contained in the Gazette or purporting to be printed by the Government Printer;(d)the acts of the executive or the proceedings of the legislature of a foreign country, by journals published by their authority, or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in some written law;(e)proceedings of a municipal body in the United Republic, by a copy of such proceedings certified by the legal keeper thereof, or by a printed book purporting to be published by the authority of such body;(f)public documents of any other class in a foreign country, by the original or by a copy certified by the legal keeper thereof, with a certificate under the seal of a foreign service officer or diplomatic representative of a Commonwealth country that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the documents according to the law of the foreign country.

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 Government

A 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 decisions

A 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 Republic

A court shall presume that a private document purporting to be executed outside the United Republic was duly executed and the execution duly authenticated if—(a)in the case of a document executed in Uganda, Kenya, Malawi or Zambia, it purports to be authenticated by a magistrate, registrar or judge under the seal of the court or by a notary public under his signature and seal of office;(b)in the case of a document executed in Uganda, Kenya, Malawi or Zambia which affects or relates to property not exceeding an amount or value of five thousand shillings, there purports to be appended to or endorsed on such document a statement signed by a magistrate or a justice of the peace—(i)that the person executing the document is a person known to him; or(ii)that two other persons known to him have separately testified before him that the person executing the document is known to each of them;(c)in the case of a document executed in any other place outside the United Republic, if it purports to be authenticated by the signature and seal of office—(i)of a foreign service officer of the United Republic or a diplomatic representative of a Commonwealth country in that place; or(ii)of any Secretary of State, Minister, Undersecretary of State or any other person in such foreign place, who shall be shown by the certificate of the foreign service officer of the United Republic or a diplomatic representative of a Commonwealth country in that place, to be duly authorized under the law of that place to authenticate the document.

94. Presumption regarding powers of attorney

A 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 records

A 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 charts

A 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 messages

A 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 produced

The 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

100. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document

101. Exclusion of evidence of oral agreement

When 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—(a)any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration or mistake in fact or law;(b)the existence of any separate oral agreement as to any matter on which a document is silent and which is not inconsistent with its terms may be proved and in considering whether or not this paragraph of this provision applies, the court shall have regard to the degree of formality of the document;(c)the existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under the contract, grant or disposition of property, may be proved;(d)the existence of any distinct subsequent oral agreement to rescind or modify the contract, grant or disposition of property may be proved, except in cases in which the contract, grant or disposition of property is by law required to be in writing or has been registered according to the law in force for the time being as to the registration of documents;(e)any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description may be proved, if the annexing of such incident would not be repugnant to or inconsistent with the express terms of the contract;(f)any fact may be proved which shows in what manner the language of a document is related to existing facts.

102. Exclusion of evidence to explain patent ambiguity

When 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 facts

When 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 ambiguity

When 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 things

When 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 facts

When 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, etc

Evidence 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 parties

Persons 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, etc

Nothing 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.

110. Burden of proof

111. On whom burden of proof lies

The 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 fact

The 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 admissible

The 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 proceedings

In 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 years

When 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 years

When 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 117

The 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 agent

When the question is whether persons are partners, landlord and tenant, or principal and agent and it has been shown that they have been acting as such, the burden of proving 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 ownership

When 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 confidence

When 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 legitimacy

The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution the mother remaining unmarried, shall raise a rebuttable presumption that such person is the legitimate son or daughter of that man.

122. Court may presume existence of certain facts

A 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.

123. Estoppel

When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon 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 possession

No tenant of immovable property or person claiming through such tenant shall, during the continuance of the tenancy, be permitted to deny that the landlord of 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 exchange

No 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 licensee

No 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.

127. Who may testify

128. Dumb witnesses

129. Privilege of court

No judge or magistrate shall, except upon the special order of some court to which he is subordinate, be compelled to answer any questions as to his own conduct in court as 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 proceedings

In 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 records

Whenever 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’ clerks

The 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 advisers

No 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 party

No 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 documents

No 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 produce

No 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 incriminate

A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal 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 witness

An 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 witnesses

Subject 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.

144. Order of production and examination of witnesses

The 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

148. Cross-examination of person called to produce document

A 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 character

Witnesses to character may be cross-examined.

150. Meaning of leading question

Any 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-examination

Leading questions may be asked in cross-examination.

153. Evidence as to matters in writing

Any 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 writing

A 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-examination

When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend—(a)to test his veracity;(b)to discover who he is and what is his position in life;or(c)to shake his credit, by injuring his character,although the answer to such questions might tend directly or indirectly to incriminate him, or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.

156. When witness to be compelled to answer

If 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 person

A 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 grounds

No 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 questions

The 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 annoy

The 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 veracity

When 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—(a)if a witness is asked whether he has been previously convicted of any crime and denies it, evidence may be given of his previous convictions; and(b)if a witness is asked any question tending to impeach his impartiality and answers it by denying the facts suggested, evidence may be given of the facts.

163. Discretion to allow cross-examination of own witness

The 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 admissible

When 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 fact

In 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 35

Whenever 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.

168. Refreshing memory

169. When witness may use copy of document to refresh memory

Whenever 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 memory

An expert may refresh his memory by reference to professional treatises.

171. Testimony to facts stated in document although facts themselves not specifically recalled

A 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 memory

Any 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 notice

When 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 refused

When 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

177. Power of assessors to put questions

In 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.