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    This document provides an overview of key concepts in evidence law, including definitions of evidence, facts, facts in issue, proof, and the three tests on evidence: relevance, admissibility, and weight. It discusses the nature, scope, and sources of evidence law. It also addresses witness testimony, different types of evidence, direct and circumstantial evidence, relevance, admissibility, weight, and instances where proof can be made other than by evidence, such as admission of facts.

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    Lesson 1

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    This document provides an overview of key concepts in evidence law, including definitions of evidence, facts, facts in issue, proof, and the three tests on evidence: relevance, admissibility, and weight. It discusses the nature, scope, and sources of evidence law. It also addresses witness testimony, different types of evidence, direct and circumstantial evidence, relevance, admissibility, weight, and instances where proof can be made other than by evidence, such as admission of facts.

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    Evidence law lecture notes

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    LESSON 1

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    This document provides an overview of key concepts in evidence law, including definitions of evidence, facts, facts in issue, proof, and the three tests on evidence: relevance, admissibility, and weight. It discusses the nature, scope, and sources of evidence law. It also addresses witness testimony, different types of evidence, direct and circumstantial evidence, relevance, admissibility, weight, and instances where proof can be made other than by evidence, such as admission of facts.

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    31 views19 pages

    Lesson 1

    Uploaded by

    ndungucharlesgp
    This document provides an overview of key concepts in evidence law, including definitions of evidence, facts, facts in issue, proof, and the three tests on evidence: relevance, admissibility, and weight. It discusses the nature, scope, and sources of evidence law. It also addresses witness testimony, different types of evidence, direct and circumstantial evidence, relevance, admissibility, weight, and instances where proof can be made other than by evidence, such as admission of facts.

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    of 19

    EVIDENCE LAW

    GPR 215
    LESSON 1: Introduction

    1
    Key Definitions & Concepts
    Definitions
    ● Evidence
    ● Facts
    ● Facts in issue
    ● Proof
    Tests on Evidence
    1. Test of Relevance
    2. Test of Admissibility
    3. Test of Weight
    ● Nature, Scope and Sources of Evidence Law
    ● Proof other than by evidence 2
    Evidence
    Section 3 (1) of the Evidence Act defines “evidence” in the following terms:

    “evidence” denotes a means by which an alleged matter of fact, the truth of which is
    submitted to investigation, is proved or disproved….”

    The word “ evidence” is originated from a Latin term “evidentia” which means to
    show clearly, to make clear to the sight to discover clearly certain, to ascertain or to
    prove

    Evidence may be presented or taken in various forms including – Oral testimony,


    affidavits, written statements, documents, observation by trier of facts, real evidence,
    electronic forms
    Witness Testimony

    ● Evidence does not adduce itself.

    ● A witness is a person called to adduce evidence. (Consider


    emergence of robotics and AI).

    ● Testimony is the oral statement of a witness.

    ● Affidavits and Written Statements are now becoming more


    frequently used in place of testimony.
    Facts

    Section 3 (1) of the Evidence Act defines “fact” as including-

    “(a) any thing, state of things, or relation of things, capable of


    being perceived by the senses; and
    (b) any mental condition of which any person is conscious”

    Generally witnesses in adducing evidence are supposed to


    present facts, not opinions or inference
    Facts in Issue

    “Facts in issue” refers to those facts whose proof is necessary in order to establish
    a valid cause of action or defence to a cause of action, and the existence of which
    is asserted by one party and denied by one or more of the parties to legal
    proceedings.

    The determination of facts in issue depends on:


    (i) the substantive law on which a case is based (say, the law of tort or the law of
    contract); and

    (ii) the allegations made by the parties in their pleadings in civil matters and in
    charge sheet in criminal matters
    Facts in Issue

    Section 3 (1) of the Evidence Act defines “facts in issue” as:


    “any fact from which, either by itself or in connexion with
    other facts, the existence, non-existence, nature or extent of
    any right, liability or disability, asserted or denied in any suit
    or proceeding, necessarily follows.”
    Proof and Disproof

    Proof and Disproof refers to the establishment or refutation


    of an alleged fact. Proof or disproof is that which leads to a
    conclusion as to the truth or falsity of alleged facts that are
    the subject of inquiry.

    According to section 3 (2) of the Evidence Act,


    a fact is proved when, after considering the matters before it, the
    court either believes it to exist, or considers its existence so
    probable that a prudent man ought, in the circumstances of the
    particular case, to act upon the supposition that it exists.
    Proof and Disproof

    section 3 (3) of the Evidence Act states that

    a fact is disproved when, after considering the matters before


    it, the court either believes that it does not exist, or considers its
    non-existence so probable that a prudent man ought, in the
    circumstances of the particular case, to act upon the supposition
    that it does not exist.
    Relevance of Facts Evidence

    Generally a fact will be relevant if it is a fact in issue

    Consequently evidence necessary for the purposes of proving or


    disproving that fact will also be relevant

    In DPP v Kilbourne [1973] A.C. 729 at 756 it was stated that


    “evidence is relevant if it is logically probative or disprobative of some
    matter which requires proof.”
    1
    0
    Circumstantial Evidence

    Sometimes described as indirect evidence and are strictly speaking from


    a logic perspective evidence of facts which are not relevant

    They refer to evidence of facts which are not in issue but which when
    considered may lead to inferences necessary for determining facts in
    issue

    They are used sparingly and cautiously because of the fear that such
    evidence may be manufactured to cast suspicion on another
    Circumstantial Evidence

    The general rule (in criminal proceedings) is that a conclusion of guilt should
    not be drawn exclusively from circumstantial evidence unless the
    circumstantial evidence is incompatible with the accused’s innocence.

    In James Mwangi v Republic [1983] KLR 327, the appellants were convicted
    of robbery with violence in respect of a raid on a bank in Naivasha. The
    prosecution case depended entirely upon evidence that the appellants had
    been found in possession of “ a lot of money” whose source they could not
    explain. None of the five accused persons was identified by anyone at the
    scene of crime, and the money could not positively be identified as that stolen
    from the bank
    Circumstantial Evidence

    The Court stated that in a case depending on circumstantial


    evidence, in order to justify the inference of guilt:
    (1) the incriminating facts must be incompatible with the innocence of
    the accused, the guilt of any other person and incapable of
    explanation upon any other reasonable hypothesis than that of guilt.

    (2) there must be no other coexisting circumstances which would weaken


    or destroy the inference.
    Admissibility of Evidence

    Admissibility refers to the permissibility in law i.e. does the


    law allow the particular material of evidence to be relied
    on?

    The test is one of law and is mostly informed by the


    rationale of prejudice or sometimes public policy
    consideration
    Weight of Evidence

    Refers to the probative value of Evidence and connotes


    “believability” or “necessity”

    When one must ask themselves whether it is necessary or


    preferable to adduce the evidence or other, one is said to
    be testing the weight of evidence.
    Nature, scope and Sources of Evidence Law

    Evidence Law is the body of law that informs the process of proof and disproof of facts in legal
    proceedings. It therefore falls under procedural/adjectival category of laws.

    The Rules discussed in this unit do not apply universally to proceedings other than courts.

    Tribunal Rules will often exempt proceedings before those proceedings from the strict rules if
    evidence. The Act, for instance, exempts Arbitration.

    In light of Article 159(2)(d) of the Constitution, some rules of evidence may be deemed to be
    undue technicalities in courts as well.

    Law of Evidence is highly exclusionary in nature based on the need to protect people who might
    be adversely affected by allegations hence majority of the rules of evidence to be discussed tend
    to start off from a point of general exclusion.
    Nature and Sources of Evidence Law

    Evidence Law as discussed in this unit is primarily sourced from the Evidence
    Act and common law.

    The Constitution of Kenya, 2010 has increasingly become instrumental in


    prescribing admissibility of evidence, burden of proof and extent of disclosure
    of evidence. It is also a good source of guidance on issues of law reform.

    Civil Procedure Rules (CPR) and the Criminal Procedure Code (CPC) also
    contain important procedural prescriptions on the processes of adduction and
    disclosure of evidence.

    We will also make extensive reference to the Oaths and Statutory Declarations
    Act, Cap 15 Laws of Kenya
    Proof other than by Evidence

    Adduction of evidence is not mandatory in all cases and scenarios


    There are instances where a party can prove its case or fact
    without adducing evidence
    The obvious instance is where a fact is admitted
    Facts may also be presumed to exist where a primary fact is either
    admitted or is already proven
    Facts may also be presumed to where a party is estopped from
    disputing the fact
    Courts are also deemed to know certain facts
    Reading List

    1. Section 3 of the Evidence Act, Cap 80 Laws of Kenya

    2. Article 50(2) of the Constitution of Kenya, 2010

    3. Brian Sites “Machines Ascendant: Robots And The Rules Of Evidence” 3 GEO. L.
    TECH. REV. 1 (2018)

    4. Andrea Roth , “Machine Testimony”, Yale Law Journal 2017

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