PROOF OF FACTS

OTHERWISE THAN BY
EVIDENCE
15 – 16TH JANUARY 2025
OUTLINE

• Presumptions
• Judicial Notice
• Admissions
• Estoppel
INTRODUCTION

• Facts in issue are treated as established by the

courts only insofar as they are proved by evidence.
• However, we have a number of exceptions:
i. Presumptions
ii. Judicial notice
iii. Admissions
iv. Estoppel
 PRESUMPTIONS

• Where a presumption exists, a conclusion may or must be drawn by the

court in absence of evidence in rebuttal.
• Inferences/ Conclusions that a court is legally empowered to make
based on the existence or non-existence of a fact upon the proof or
admission of another fact.
• They are based on considerations of public policy and common sense.
• What is the effect of a presumption? To lower/ extinguish the burden of
proof a party benefiting from a presumption would have had.
• Types: 1) Rebuttable presumptions 2) Irrebuttable presumptions 3)
Presumptions of fact
 REBUTTABLE PRESUMPTIONS

• On proof or admission of the primary/ basic fact, another fact

referred to as the presumed fact, must be presumed.
• The party relying on the presumption bears the burden of
establishing the basic fact. Once this is done, the adversary
bears the burden (legal or evidential) of disproving the presumed
fact.
• Example
i. A person under the age of 12 years is not criminally
responsible for an act or omission, unless it is proved that at
the time of doing the act or making the omission he had the
capacity to know that he ought not to do the act or make the
omission– section 14 (2) PC
 IRREBUTTABLE PRESUMPTIONS

• Also referred to as conclusive presumptions.

• Once the basic fact has been proved/ admitted, another fact must be
conclusively presumed.
• The party against whom the presumption operates is barred from
adducing any evidence in rebuttal.
• Examples
i. A person under the age of 8 years is not criminally responsible for
any act or omission – s. 14 (1) PC
ii. A male person under the age of 12 is presumed to be incapable of
having carnal knowledge – s. 14 (3) PC
 PRESUMPTION OF FACT

• On proof of a basic fact, another fact may be presumed in absence of

sufficient evidence to the contrary.
• Some apply as circumstantial evidence. Examples:

i. Presumption of intention – a person intends the natural consequences

of his acts/ omissions.
ii. Presumption of guilty knowledge – where you are in possession of
recently stolen goods.
• Some presumptions are not dependent on the proof of any basic fact.
Examples
i. Presumption of innocence
ii. Presumption of sanity – s. 11 of the PC
PRESUMPTION OF MARRIAGE

i. Presumption of formal validity

• Formal validity of a marriage depends on the local law of the place
where the marriage was celebrated. Failure to comply with these
formal requirements may make a marriage void.
• Presumption of formal validity indicates that on proof of the basic
fact that a marriage was celebrated between the persons who
intend to marry, the formal validity of the marriage will be
presumed in absence of evidence to the contrary.
• See Piers v Piers (1849) 2 HL Cas 331
PRESUMPTION OF MARRIAGE

ii. Presumption of essential validity

• A marriage may be void on the grounds that the parties lacked
the capacity to marry.
• This may be due to age (s. 4 of the Marriage Act) or the degree
of consanguinity (s. 10 of the Marriage Act)
• However, on proof of the basic fact that a formally valid
marriage was celebrated, the essential validity of the marriage
will be presumed in absence of sufficient evidence to the
contrary.
PRESUMPTION OF MARRIAGE

iii. Presumption of marriage arising from cohabitation

• On proof that a man and woman have cohabited as if man and
wife, it is presumed, in absence of sufficient evidence to the
contrary, that they were living together in consequence of a
valid marriage.
• See Hottensiah Wanjiku Yawe v Public Trustee [1976] eKLR
OTHER PRESUMPTIONS

i. Presumption of legitimacy – on proof that a child was conceived

during lawful wedlock, it is presumed that the child is legitimate,
unless the contrary is proven.
ii. Presumption of death – where there is no affirmative evidence that
a person was alive at some time for a continuous period of 7 years
or more, on proof of the basic that 1) there are person who would
have likely heard of him 2) those people have not heard of him 3)
all enquiries have been made, that person will be deemed to have
died within that period – Prudential Assurance Co v Edmonds (1877)
2 App Cas 487. See also s. 118A of EA
iii. Presumption of negligence (res ipsa loquitor) – what are the
conditions that have to be proved for the presumption to hold?
PRESUMPTIONS – PROVISIONS FROM
THE EVIDENCE ACT
• Where directed by law that the court shall presume a fact, it shall
regard that fact as proved, unless and until it is disproved – s. 4
(2) – what category of presumptions does this relate to?
• Where one fact is declared by law to be conclusive proof of
another, the court shall, on proof of the one fact, regard the
other as proved and shall not allow evidence to be given for the
purpose of disproving it – s. 4(3) - what category of presumptions
does this relate to?
• Presumptions as to documents – s. 83-96
JUDICIAL NOTICE

• This is the power of the court to accept, for purposes of convenience and
without requiring a party’s proof, of well-known and indisputable facts or
facts that may be noticed after inquiry (referring to works of reference or
other acceptable sources).
• Rationales

i. Certain facts are beyond serious dispute. They are so notorious or of

such common knowledge that they require no proof and are open to no
such evidence in rebuttal.
ii. To require proof of such facts could cause difficulty and would be a waste
of resources (both time and money). Also promotes consistency.
 • Some facts are so notorious in
themselves or of such public
knowledge & universal character that
JUDICIAL NOTICE the court is bound to recognise and
United India take notice of them. They do not
Insurance Co. Ltd v require proof. No exhaustive list has
East African been made or can be made for they
Underwriters (Kenya) are numerous.
Ltd (1985)
 JUDICIAL NOTICE

• No fact of which the court shall take judicial notice need to be proved – s.
59 of the Evidence Act
• Facts of which the court shall take judicial notice – s. 60 (1) of the
Evidence Act
• Facts judicially noticed –:

i. A fortnight is too short a duration for human gestation – R v Luffe

(1807)/ Preston-Jones v Preston-Jones (1951)
ii. There was an attempted military coup in Kenya on 1 st August 1982 –
Diego v R (1985)
iii. Election officials in Kenya are required to tally results under difficult
conditions – Dickson Mwenda Kithinji v Gatirau Peter Munya & 2
Others
ADMISSIONS

• An admission is a statement by a party to litigation that is

adverse to his/her case.
• Informal admissions – out-of-court admissions made before any
proceedings are anticipated or lodged eg confessions
• Formal admissions – admissions made during and in context of
specific legal proceedings.
• A fact may be formally admitted in the following ways: express
admissions in the pleadings, failure to traverse it in the
pleadings etc
ADMISSIONS

• Admissions save the adverse party the trouble and expense of

proving admitted facts. Facts admitted cease to be a facts in
issue.
• A formal admission is conclusive and binding upon the person
making it.
• Informal admissions are not conclusive and binding. They do
not bind their maker. They can be explained away.
WITHOUT PREJUDICE ADMISSIONS/
CORRESPONDENCE
• Admissions made on a ‘without prejudice’ basis cannot
subsequently be proved in court against the party making it –
s. 23 of the Evidence Act.
• ‘Without prejudice’ communications are admissible if the issue
is whether the negotiations resulted in an agreed settlement –
See Millicent Wambui v Nairobi Botanica Gardening Ltd (2013)
ADMISSIONS IN CIVIL PROCEEDINGS

• Facts admitted in civil proceedings – s. 61 of the Evidence Act

• A party to civil proceedings may by their pleadings admit part
or the whole of their adversary’s case. Unnecessary denial may
have an impact on the costs.
• Under Civil Procedure Rules, any allegation of fact that is not
specifically traversed is deemed to be admitted – Order 2 Rule
11
• Talk about Confessions – s. 25A – 32 of the EA & the Evidence
(Out of Court Confessions) Rules 2009
ESTOPPEL

• It means stopped – it has the effect of precluding a party from

denying a particular fact or assumption.
• Rationale: What a man has once alleged or represented, by his
conduct or words, he should not subsequently be allowed to
contradict.
• It prevents a party to litigation from asserting or denying
certain facts.
• See sections 120-123 of the Evidence Act
• Types of estoppel: estoppel by record, by deed, by conduct
ESTOPPEL BY RECORD

• It arises from court judgments.

• Rationale:

a) It is in public interest that there should be an end to litigation.

b) No one should be harassed or vexed twice for the same cause.
• Under estoppel by record, a final judgment of a court of competent
jurisdiction is conclusive; it estops a party to litigation from giving
evidence to contradict it – res judicata – See, section 7 of the Civil
Procedure Rules and Order 3 Rule 4 of Civil Procedure Rules
• Criminal proceedings – plea of autre foir acquit or convict.
ESTOPPEL BY CONDUCT

• Where a person by his word or conduct has represented a fact

with the intention of inducing another is subsequently
estopped from denying that such facts were represented.
• Promissory estoppel – Central London Property Trust Ltd v High
Trees House Ltd (1947)