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LAWS OF KENYA
EVIDENCE ACT
CAP. 80
- Assented to on 9 December 1963
- Commenced on 8 December 1963
- [Amended by Constitution (Amendment of Laws) (Miscellaneous Amendments) Order, 1964 (Legal Notice 22 of 1965) on 12 December 1964]
- [Amended by Magistrate's Courts Act (Act No. 17 of 1967) on 1 August 1967]
- [Amended by Statute Law (Miscellaneous Amendments) Act, 1968 (Act No. 8 of 1968) on 16 February 1968]
- [Amended by Statute Law (Miscellaneous Amendments) Act, 1969 (Act No. 10 of 1969) on 27 June 1969]
- [Amended by Statute Law (Miscellaneous Amendments) Act, 1972 (Act No. 13 of 1972) on 17 November 1972]
- [Amended by Law of Succession Act (Cap. 160) on 1 July 1981]
- [Amended by Statute Law (Miscellaneous Amendments) Act, 1985 (Act No. 19 of 1985) on 27 December 1985]
- [Amended by Statute Law (Repealed and Miscellaneous Amendments) Act, 1990 (Act No. 7 of 1990) on 22 June 1990]
- [Amended by Statute Law (Repeal and Miscellaneous Amendments) Act, 1991 (Act No. 14 of 1991) on 27 December 1991]
- [Amended by Finance Act, 2000 (Act No. 9 of 2000) on 15 June 2000]
- [Amended by Criminal Law Amendment Act, 2003 (Act No. 5 of 2003) on 25 July 2003]
- [Amended by Sexual Offences Act (Cap. 63A) on 21 July 2006]
- [Amended by Statute Law (Miscellaneous Amendments) Act, 2007 (Act No. 7 of 2007) on 15 October 2007]
- [Amended by Kenya Communications (Amendment) Act, 2008 (Act No. 1 of 2009) on 2 January 2009]
- [Amended by Statute Law (Miscellaneous Amendments) Act, 2012 (Act No. 12 of 2012) on 12 July 2012]
- [Amended by Security Laws (Amendment) Act, 2014 (Act No. 19 of 2014) on 22 December 2014]
- [Amended by Finance Act, 2022 (Act No. 22 of 2022) on 1 July 2022]
- [Revised by 24th Annual Supplement (Legal Notice 221 of 2023) on 31 December 2022]
- [Amended by Statute Law (Miscellaneous Amendment) Act, 2023 (Act No. 19 of 2023) on 11 December 2023]
Chapter I
PRELIMINARY
1. Short title.
This Act may be cited as the Evidence Act.2. Application.
3. Interpretation.
4. Presumptions of fact.
Chapter II
ADMISSIBILITY AND RELEVANCY
Part I – GENERAL
5. General restriction of admissibility of evidence.
Subject to the provisions of this Act and of any other law, no evidence shall be given in any suit or proceeding except evidence of the existence or non-existence of a fact in issue, and of any other fact declared by any provision of this Act to be relevant.6. Facts forming part of the 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.7. Facts causing or caused by other facts.
Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts or facts in issue, or which constitute the state of things under which they happened or which afforded an opportunity for their occurrence or transaction are relevant.8. Facts relating to motive, preparation and conduct.
9. Explanatory or introductory facts, etc.
Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by such a fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.10. Statements and actions referring to common intention.
Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.11. Facts inconsistent with, or affecting probability of, other facts.
Facts not otherwise relevant are relevant—12. Facts affecting quantum of damages.
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.13. Facts affecting existence of right or custom.
Where the existence of any right or custom is in question, the following facts are relevant—14. Facts showing state of mind or feeling.
15. Facts showing system.
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.16. Facts showing course of business.
When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is relevant.Part II – ADMISSIONS
17. Admissions defined generally.
An admission is a statement, oral or documentary, which suggests any inference as to a fact in issue or relevant fact, and which is made by any of the persons and in the circumstances hereinafter mentioned.18. Statements by party to suit or agent or interested person.
19. Statements by persons whose position or liability 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 a suit, are admissions if such statements would be admissible as against such persons in relation to such position or liability in a suit brought by or against them, and if they are made whilst the person making them occupies such position or is subject to such liability.20. Statements 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.20A. Proof of written statement by consent.
21. Proof of admissions against persons making them, and by or on their behalf.
Subject to the provisions of this Act, an admission may be proved as against the person who makes it or his representative in interest; but an admission cannot be proved by or on behalf of the person who makes it or by his representative in interest, except in the following cases—22. Oral admissions as to contents of documents.
Oral admissions as to the contents of a document may not be proved unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the provisions of this Act or unless the genuineness of a document produced is in question.23. Admissions made without prejudice in civil cases.
24. Effect of admissions.
Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions hereinafter contained.Part III – CONFESSIONS
25. Confession defined.
A confession comprises words or conduct, or a combination of words and conduct, from which, whether taken alone or in conjunction with other facts proved, an inference may reasonably be drawn that the person making it has committed an offence.25A. Confessions generally inadmissible.
26. Confessions and admissions caused by inducement, threat or promise.
A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible in a criminal proceeding if the making of the confession or admission appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.27. Confession made after removal of impression caused by inducement, threat or promise.
If such a confession as is referred to in section 26 of this Act is made after the impression caused by any such inducement, threat or promise has, in the opinion of the court, been fully removed, it is admissible.28. [Repealed by Act No. 5 of 2003, s. 100.]
29. Confessions to police officers.
No confession made to a police officer shall be proved against a person accused of any offence unless such police officer is—30. [Repealed by Act No. 5 of 2003, s. 101.]
31. [Repealed by Act No. 5 of 2003, s. 102.]
32. Confession implicating co-accused.
Part IV – STATEMENTS BY PERSONS WHO CANNOT BE CALLED AS WITNESSES
33. Statement by deceased person, etc., when.
Statements, written or oral or electronically recorded, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured, without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases—34. Admissibility of evidence given in previous proceedings.
Part V – STATEMENTS IN DOCUMENTS PRODUCED IN CIVIL PROCEEDINGS
35. Admissibility of documentary evidence as to facts in issue.
36. Weight to be attached to statement admissible under section 35.
Part VI – STATEMENTS UNDER SPECIAL CIRCUMSTANCES
37. Entries in books of account.
Entries in books of account regularly kept in the course of business are admissible whenever they refer to a matter into which the court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.38. Entries in public records.
An entry in any public or other official book, register or record, stating a fact in issue or a relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself admissible.39. Statements, etc., in maps, charts and plans.
Statements and representations of facts in issue or relevant facts made in published maps or charts generally offered for public sale, or in maps or plans made under the authority of any Government in the Commonwealth, as to matters usually stated or represented in such maps, charts or plans, are themselves admissible.40. Statements of fact contained in laws and official gazettes, etc.
When the court has to form an opinion as to the existence of any fact of a public nature, any statement of it shall be admissible which is made—41. Statements as to law contained in books.
When the court has to form an opinion as to a law of any country, any statement of such law contained in a book purporting to be printed or published under the authority of the Government of such country and to contain any such law, and any report of a ruling of the courts of such country contained in a book purporting to be a report of such rulings, is admissible.Part VII – EXTENT TO WHICH STATEMENT IS ADMISSIBLE
42. Extent of admissibility.
When any statement of which evidence is given forms part of a longer statement, or of a conversation, or 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 such longer statement, or of such conversation, document, book or series, as the court considers necessary in the particular case to a full understanding of the nature and effect of the statement, and of the circumstances in which it was made.Part VIII – JUDGMENTS
43. Judgments, etc., excluding jurisdiction.
The existence of any judgment, order or decree which by law prevents any court from taking cognizance of a suit or holding a trial, may be proved when the question is whether such court ought to take cognizance of such suit or to hold such trial.44. Judgments in rem.
45. Other judgments of a public nature.
Judgments, orders or decrees, other than those mentioned in section 44 of this Act, are admissible if they relate to matters of a public nature relevant to the inquiry, but such judgments, orders or decrees are not conclusive proof of that which they state.46. Inadmissible judgments.
Judgments, orders or decrees other than those mentioned in sections 43, 44 and 45 of this Act are inadmissible except where the existence of such judgment, order or decree is a fact in issue or is relevant under some other provision of this Act.47. Proof that judgment was incompetent or obtained by fraud or collusion.
Any party to a suit or other proceeding may show that any judgment, order or decree which is admissible under the provisions of this Act 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.47A. Proof of guilt.
A final judgment of a competent court in any criminal proceedings which declares any person to be guilty of a criminal offence shall, after the expiry of the time limited for an appeal against such judgment or after the date of the decision of any appeal therein, whichever is the latest, be taken as conclusive evidence that the person so convicted was guilty of that offence as charged.[Act No. 10 of 1969, Sch.]Part IX – OPINIONS
48. Opinions of experts.
49. Facts bearing upon opinions of experts.
Facts not otherwise admissible are admissible if they support or are inconsistent with the opinions of experts, when such opinions are admissible.50. Opinion as to handwriting.
51. Opinion relating to customs and rights.
52. Opinions of persons with special knowledge.
When the court has to form an opinion as to—53. Opinion on relationship.
When the 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 admissible:Provided that such an opinion shall not be sufficient to prove a marriage in a prosecution for bigamy or in proceedings for a divorce, or in any proceedings for damages against an adulterer.54. Grounds of opinion.
Whenever the opinion of any living person is admissible, the grounds on which such opinion is based are also admissible.Part X – CHARACTER
55. Character in civil cases.
56. Good character in criminal cases.
In criminal proceedings, the fact that the person accused is of a good character is admissible.57. Bad character in criminal cases.
58. Definition of "character".
In sections 55, 56 and 57 of this Act the word "character" includes both reputation and disposition; but, except as provided in section 57, evidence may be given only of general reputation and general disposition, and not of particular acts by which reputation or disposition were shown.Chapter III
PROOF
Part I – FACTS REQUIRING NO PROOF
59. Facts judicially noticed.
No fact of which the court shall take judicial notice need be proved.59A. Agreement on facts not in issue.
60. Facts of which court shall take judicial notice.
61. Facts admitted in civil proceedings.
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, by writing under their hands, to admit, 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
62. Oral evidence.
All facts, except the contents of documents, may be proved by oral evidence.63. Oral evidence must be direct.
63A. Teleconferencing and video conferencing
Part III – DOCUMENTARY EVIDENCE
64. Proof of contents of documents.
The contents of documents may be proved either by primary or by secondary evidence.65. Primary evidence.
66. Secondary evidence.
Secondary evidence includes—67. Proof of documents by primary evidence.
Documents must be proved by primary evidence except in the cases hereinafter mentioned.68. Proof of documents by secondary evidence.
69. Notice to produce a document.
Secondary evidence of the contents of the documents referred to in section 68(1)(a) of this Act 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 a notice to produce it as is required by law or such notice as the court considers reasonable in the circumstances of the case:Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases—70. Proof of allegation that persons signed or wrote a 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.71. 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 at least 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 and capable of giving evidence:Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document which has been registered in accordance with the provisions of any written law, unless its execution by the person by whom it purports to have been executed is specifically denied.72. Proof where no attesting witness found.
Where evidence is required of a document which is required by law to be attested, and none of the attesting witnesses can be found, or where such witness is incapable of giving evidence or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.73. Admission of execution of 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 be a document required by law to be attested.74. Proof where attesting witness denies execution.
If the attesting witness denies or does not recollect the execution of a document, its execution may be proved by other evidence.75. Proof of document not required to be attested.
An attested document not required by law to be attested may be proved as if it was unattested.76. Comparison of signatures, seals, etc.
77. Reports by Government analysts and geologists.
78. Photographic evidence—admissibility of certificate.
78A. Admissibility of electronic and digital evidence.
Part IV – PUBLIC DOCUMENTS
79. Distinction between public and private documents.
80. Certified copies of public documents.
81. Proof by 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.82. Proof of certain public documents.
Without prejudice to any other mode of proof, prima facie evidence of the following public documents may be given in the manner hereinafter shown, that is to say—Part V – PRESUMPTIONS AS TO DOCUMENTS
83. Certified documents.
84. Records of evidence.
Whenever any document is produced before any court, purporting to be a record or memorandum of any evidence given in a judicial proceeding or before any officer authorized by law to take such evidence, and purporting to be signed by a judge or magistrate or any such officer as aforesaid, the court shall presume—85. Gazette, etc., to be prima facie evidence.
The production of a copy of any written law, or of a copy of the Gazette containing any written law or any notice purporting to be made in pursuance of a written law, where such law or notice (as the case may be) purports to be printed by the Government Printer, shall be prima facie evidence in all courts and for all purposes whatsoever of the due making and tenor of such written law or notice.86. Gazettes, newspapers and documents produced from proper custody.
87. Publications generally.
Where any publication or part thereof indicates or purports to indicate the name of any person by or on behalf or under the sponsorship of whom, or the place at which or date on which, such publication or any part thereof was edited, printed or published or any part thereof was contributed, it shall, in any proceedings for an offence under any written law or for contempt of any court, be presumed, until the contrary is proved, that such publication or part thereof was edited, printed or published, or that such part thereof was contributed, by or on behalf or under the sponsorship of such person, or at such place or on such date, as the case may be.88. Documents admissible in England.
When any document is produced before any court, purporting to be a document which, by the law in force for the time being in England, would be admissible in proof of any particular in any Court of Justice in England, without proof of the seal or stamp or signature authenticating it, or of the judicial or official character claimed by the person by whom it purports to be signed—89. Maps or plans.
90. Law and judicial reports.
The 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.91. Powers of attorney.
The 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 or any court, judge, magistrate, or Kenya consular officer or diplomatic agent, was so executed and authenticated.[L.N. 22 of 1965.]92. Certified copies of foreign judicial records.
The court may presume that any document purporting to be a copy of a judgment or judicial record of any country not forming part of the Commonwealth is genuine and accurate, and that such judgment or record was pronounced or recorded by a court of competent jurisdiction, if the document purports to be certified in any manner which is certified by a Kenya consular officer or diplomatic representative in or for such country to be the manner commonly in use in that country for the certification of copies of judgments or judicial records.[L.N. 22 of 1965.]93. Books, maps and charts.
The court may presume that any book, to which it may refer for information on matters of public or general interest, and that any published map or chart, the statements of which are admissible 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.94. Telegraphic messages.
The court may presume that a message forwarded from a telegraph office to the person to whom such 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.95. Presumption as to due execution, etc.
The court shall presume that every document called for and not produced after notice to produce was attested, stamped and executed in the manner required by the law.96. Documents twenty years old.
Part VI – EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE
97. Written contracts and grants.
98. Evidence of oral agreement.
When the terms of any contract or 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 97 of this Act, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to or subtracting from its terms:Provided that—99. Evidence to explain a patent ambiguity.
When the language used in a document is on the face of it ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its defects.100. Evidence to show inapplicability.
When language used in a document is plain, and it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts.101. Evidence to explain a latent ambiguity.
When language used in a document is plain, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense.102. Evidence of application to one of several subjects.
When the facts are such that the language used in a document 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 to which of those persons or things it was intended to apply.103. Evidence of application to one of several sets of facts.
When the language used in a document applies partly to one set of existing facts, and partly to another, 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.104. Evidence to explain special words.
Evidence may be given to show the meaning of illegible or not commonly intelligible characters, of foreign, obsolete, technical, local and, provincial expressions, of abbreviations and of words used in a peculiar sense.105. 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.106. Wills.
Nothing in this Part shall affect the law relating to the interpretation and construction of wills or other testamentary dispositions.Part VII – ELECTRONIC RECORDS
106A. Section 106B to apply in proof of electronic records.
The contents of electronic records may be proved in accordance with the provisions of section 106B.[Act No. 1 of 2009, s. 36.]106B. Admissibility of electronic records.
106C. Proof as to a electronic signature.
Except in the case of a secure signature, if the electronic signature of any subscriber is alleged to have been affixed to an electronic record, then the fact that such an electronic signature is the electronic signature of the subscriber must be proved.[Act No. 1 of 2009, s. 36.]106D. Proof as to the verification of electronic signature.
In order to ascertain whether an electronic signature is that of a person by whom it purports to have been affixed, the court may direct—106E. Presumption as to Gazette in electronic form.
A court shall take recognizance of every electronic record purporting to be the official Gazette, or purporting to be electronic record directed by any law to be kept by any person, if such electronic record is kept substantially in the form required by law and is produced from its proper custody.[Act No. 1 of 2009, s. 36.]106F. Presumption as to electronic agreements
A court shall presume that every electronic record purporting to be an agreement containing the electronic signatures of the parties was concluded by affixing the digital signature of the parties.[Act No. 1 of 2009, s. 36.]106G. Presumption as to electronic records and electronic signatures.
106H. Presumption as to electronic signature certificates.
A court shall presume, unless the contrary is proved, that the information listed in an electronic signature certificate is correct, except for information, which has not been verified, if the certificate was accepted by the subscriber.[Act No. 1 of 2009, s. 36.]106I. Presumption as to electronic messages.
A court may presume that an electronic message forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission, but the court shall not make any presumption as to the person by whom such a message was sent.[Act No. 1 of 2009, s. 36.]Chapter IV
PRODUCTION AND EFFECT OF EVIDENCE
Part I – BURDEN OF PROOF
107. Burden of proof.
108. Incidence of burden.
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.109. Proof of particular fact.
The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.110. Proof of admissibility.
The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.111. Burden on accused in certain cases.
112. Proof of special knowledge in civil proceedings.
In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.113. [Repealed by Act No. 14 of 1972, Ninth Sch.]
114. [Repealed by Act No. 14 of 1972, Ninth Sch.]
115. Disproving apparent special relationship.
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 affirms it.116. Disproving ownership.
When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.117. Proof of good faith.
Where 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.118. Conclusive proof 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 be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.118A. Presumption of death.
Where it is proved that a person has not been heard of for seven years by those who might be expected to have heard of him if he were alive, there shall be a rebuttable presumption that he is dead.[Act No. 14 of 1972, Ninth Sch.]119. Presumption of likely facts.
The court may presume 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
120. General 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 such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.121. Estoppel of tenant or licensee.
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 such tenant had at the beginning of the tenancy a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that such person had a right to such possession at the time when the license was given.122. Estoppel of acceptor of a bill of exchange.
No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority to draw such bill or to endorse it:Provided that the acceptor of a bill of exchange may deny that the bill was in fact drawn or endorsed by the person by whom it purports to have been drawn or endorsed.123. Estoppel of a bailee, licensee or agent.
No bailee, agent or licensee shall be permitted to deny that the bailor, principal or licensor, by whom any goods were entrusted to any of them respectively, was entitled to those goods at the time when they were so entrusted:Provided that any such bailee, agent or licensee may show that he was compelled to deliver up any such goods to some person, who had a right to them as against his bailor, principal or licensor, wrongfully, and without notice to the bailee, agent or licensee, obtained the goods from a third person who has claimed them from such bailee, agent or licensee.Part III – EVIDENCE OF CHILDREN
124. Corroboration required in criminal cases.
Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.[Act No. 5 of 2003, s. 103, Act No. 3 of 2006, Second Sch.]Chapter V
WITNESSES
Part I – COMPETENCY OF WITNESSES
125. Competency generally.
126. Dumb witnesses.
127. Competency of parties and spouses.
Part II – COMPELLABILITY AND PRIVILEGES OF WITNESSES
128. Compellability of ordinary witnesses.
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 proceeding, upon the ground that the answer to such question will incriminate, or may tend directly or indirectly to incriminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind, but no such answer which a witness is compelled to give shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.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 such judge or magistrate, or as to anything which came to his knowledge in court as such judge or magistrate, but he may be examined as to other matters which occurred in his presence whilst he was so acting.130. Communications during marriage.
131. 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 any document forming part of any unpublished official records, the production of which document has been called for in any proceedings and that he is of the opinion that such production would be prejudicial to the public service, either by reason of the content thereof or of the fact that it belongs to a class which, on grounds of public policy, should be withheld from such production, the document shall not be admissible.[Act No. 10 of 1969, Sch., Act No. 7 of 1990, Sch.]132. Privilege of official communications.
No public officer shall be compelled to disclose communications made by any person to him in the course of his duty, when he considers that the public interest would suffer by the disclosure.[Act No. 13 of 1972, Sch.]133. Privilege relating to information of commission of offences.
134. Privilege of advocates.
135. Privilege of interpreters, and advocates’ clerks and servants.
The provisions of section 134 of this Act shall apply to interpreters, and the clerks or servants of advocates.136. Waiving of privilege of advocates, etc.
137. Communications with an advocate.
No one shall be compelled to disclose to the court any confidential communication which has taken place between him and his advocate unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the court necessary to be known in order to explain any evidence which he has given, but no others.138. Title deeds and incriminating documents in hands of third party.
No witness who is not a party to the suit shall be compelled to produce his title deeds to any property, or any document in virtue of which he holds any property as pledgee or mortgagee, or any document the production of which might tend to incriminate him, unless he has agreed in writing with the person seeking the production of such deeds or document, or with some person through whom he claims, to produce them.139. Privileged document in possession of another.
No one 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.140. Bankers’ books.
141. Accomplices.
An accomplice shall be a competent witness against an accused person; and a conviction shall not be illegal merely because it proceeds upon the uncorroborated evidence of an accomplice.142. Privileges to exclude oral evidence of documents.
No person who is entitled to refuse to produce a document shall be compelled to give oral evidence of its contents.143. Number of witnesses.
No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.Part III – EXAMINATION OF WITNESSES
144. Court to decide as to the admissibility of evidence.
145. Type of examination of witnesses.
146. Order and direction of examinations.
Part IV – QUESTIONING OF WITNESSES
147. Person called to produce a document.
A person called 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.148. Witness to character.
A witness to character may be cross-examined and re-examined.149. Meaning of leading question.
Any question suggesting the answer which the person putting it wishes or expects to receive, or suggesting a disputed fact as to which the witness is to testify, is a leading question.150. Leading questions in examination-in-chief and re-examination.
151. Leading questions in cross-examination.
Leading questions may be asked in cross-examination.152. Examination as to whether certain formal matters are contained 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, but 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 such 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.153. Cross-examination as to previous written statements.
A witness may be cross-examined as to 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 a witness by a previous written statement, 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.154. Cross-examination as to credibility.
When a witness is cross-examined he may, in addition to the questions hereinbefore referred to, be asked any questions which tend—155. Compulsion to answer questions as to credit.
If any question asked under section 154(c) for the purpose of affecting the credit of the witness relates to a matter relevant to the suit or proceeding, the provisions of section 128 of this Act shall apply thereto.156. Cross-examination of accused person.
A person charged with an offence and 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.157. Discretion of court to compel witness to answer question as to credit.
158. Necessity for grounds before attacking character.
No such question as is referred to in section 157 of this Act ought to be asked unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well founded.159. Indecent or scandalous questions.
The court may forbid any questions or inquiries which it regards as indecent or scandalous, although such questions 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 existed.160. Insulting or annoying questions.
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.161. Discretion to allow cross-examination of own witness.
The court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.162. Exclusion of evidence to contradict a witness.
When a witness has been asked and has answered any question which is relevant to the proceedings 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. Evidence to impeach the credit of a witness.
164. Circumstantial questions to confirm evidence.
When a witness the truthfulness of whose evidence it is intended to confirm gives evidence of any fact, he may be questioned as to any other circumstances which he observed at or near the time or place at which the fact occurred, if the court is of opinion that such circumstances, if proved, would tend to confirm the testimony of the witness as to the fact to which he testifies.165. Proof of consistency by former statements.
In order to show that the testimony of a witness is consistent any former statement made by such witness, whether written or oral, relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.166. Evidence to test statement of person not available as witness.
Whenever any statement admissible under section 33 or section 34 of this Act is proved, all matters 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, may be proved either to contradict or to show consistency, or in order to impeach or confirm the credit of the person by whom it was made.Part V – REFRESHING OF MEMORY AND PRODUCTION OF DOCUMENTS
167. Refreshing memory by reference to contemporaneous writing.
168. Reference to accurate contemporaneous record though facts themselves not specifically recalled.
A witness may testify to facts mentioned in any such writing as is referred to in section 167 of this Act although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document.169. Rights of adverse party as to contemporaneous writing.
Any writing referred to in section 167 or section 168 of this Act shall be produced and shown to the adverse party if he requires it, and such party may, if he pleases, cross-examine the witness thereupon.170. Production of documents of doubtful admissibility.
171. Document produced in answer to notice to be given as evidence if required.
When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so and if it is admissible.172. Consequence of refusal to produce document in answer to notice.
When a party refuses to produce a document for which he has had notice to produce, he cannot afterwards use the document as evidence without the consent of the other party or the order of the court.173. Extended powers of court for purpose of obtaining proper evidence.
Part VI – QUESTIONS BY ASSESSORS
174. [Deleted by Act No. 7 of 2007, Sch.]
Chapter VI
IMPROPER ADMISSION AND REJECTION OF EVIDENCE
175. Effect of improper admission or rejection.
The improper admission or rejection of evidence shall not of itself be ground for a new trial or for reversal of any decision in a case if it shall appear to the court before which the objection is taken that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that if the rejected evidence had been received it ought not to have varied the decision.Chapter VII
BANKERS’ BOOKS
176. Mode of proof of entries in bankers’ books.
Subject to the provisions of this Chapter of this Act, a copy of any entry in a banker’s book shall in all legal proceedings be received as prima facie evidence of such entry, and of the matters, transaction and accounts therein recorded.177. Proof and verification of copy.
178. Restriction on compelling production of banker’s book.
A banker or officer of a bank shall not, in any proceedings to which the bank is not a party, be compellable to produce any banker’s book the contents of which can be proved under this Chapter of this Act, or to appear as a witness to prove the matters, transactions and accounts therein recorded, unless by order of the court made for special cause.179. Inspection of bankers’ books.
180. Warrant to investigate.
181. Costs.
Chapter VIII
MISCELLANEOUS PROVISIONS
182. Saving for other laws.
Save as otherwise expressly provided in this Act, nothing in this Act shall be deemed to derogate from the provisions of any other written law which relate to matters of evidence.183. Cessation of application of Indian Evidence Act.
History of this document
11 December 2023 this version
31 December 2022
Revised by
24th Annual Supplement
Read this version
01 July 2022
Amended by
Finance Act, 2022
Read this version
22 December 2014
12 July 2012
02 January 2009
Amended by
Kenya Communications
(Amendment) Act, 2008
15 October 2007
21 July 2006
Amended by
Sexual Offences Act
25 July 2003
Amended by
Criminal Law Amendment Act, 2003
15 June 2000
Amended by
Finance Act, 2000
27 December 1991
22 June 1990
27 December 1985
01 July 1981
Amended by
Law of Succession Act
17 November 1972
27 June 1969
16 February 1968
01 August 1967
Amended by
Magistrate's Courts Act
12 December 1964
10 December 1963
Commenced
09 December 1963
Assented to
08 December 1963
Commenced
Cited documents 5
Act 5
| 1. | Sexual Offences Act | 6556 citations |
| 2. | Law of Succession Act | 4192 citations |
| 3. | Advocates Act | 1429 citations |
| 4. | Kenya Revenue Authority Act | 1098 citations |
| 5. | Banking Act | 348 citations |
Documents citing this one 9480
Judgment 9457
Act 17
| 1. | Civil Procedure Act | 19362 citations |
| 2. | Sexual Offences Act | 6556 citations |
| 3. | Criminal Procedure Code | 5099 citations |
| 4. | Advocates Act | 1429 citations |
| 5. | Environmental Management and Co-ordination Act | 1127 citations |
| 6. | Political Parties Act | 646 citations |
| 7. | Anti-Corruption and Economic Crimes Act | 571 citations |
| 8. | Auctioneers Act | 422 citations |
| 9. | Proceeds of Crime and Anti-Money Laundering Act | 315 citations |
| 10. | Kenya Defence Forces Act | 138 citations |
Legal Notice 6
Subsidiary legislation
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Title
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Date
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|---|---|---|
| The Evidence (Out of Court Confessions) Rules | Legal Notice 41 of 2009 | 31 December 2022 |