PRESUMPTIONS

Definition
The Evidence Act does not define the term Presumption. Presumption may
be defined as:
(a) Assumption that a fact exists, based on the known or proven
existence of some other fact or group of facts.
(b) An inference as to the existence of one fact from the existence of
some other fact founded upon a previous experience of their
connection.
A presumption implies that some facts are to be taken and deemed to be so
taken without proof unless the court insists on proof. Most presumptions are
rules of evidence which call for certain result in a given case unless the
adversely affected party rebuts it with other evidence. In some cases, a
presumption merely shifts the burden of producing evidence or persuasion to
the opposite party, who can then attempt to overcome the presumption.
There are 3 categories of presumptions:
1.

PRESUMPTIONS OF FACTS these are inferences that may be drawn upon the
establishment of a basic fact. The operative word in these presumptions is may.
When you find a basic fact to exist, you are invited to come to court. There is an
invitation to the court to draw a certain inference. Section 4 of the Evidence Act deals
with such.

2.

REBUTTABLE PRESUMPTIONS OF LAW They are inferences that must be drawn

in the absence of conclusive evidence to the contrary. A good example is the
presumption of innocence, that every person accused of a crime is innocent until proved
guilty. Until there is conclusive evidence dispelling the innocence of the accused
person. Essentially these presumptions are said to be mandatory until you have other
conclusive evidence to the contrary.

3.

IRREBUTTABLE PRESUMPTIONS OF LAW: These must be drawn no matter how

much evidence exists to the contrary. Once you establish the basic fact pertaining to
the presumption then you have to draw the inference that will dispel that presumption.
They will usually be drawn from statutory provisions. They are public policy
pronouncements, which decree that in the interest of public certain matters are decreed
to be a certain way e.g. an 8 year old boy is not criminally culpable.

(1)

Section 4 of the Evidence Act defines presumptions of facts and rebuttable

presumptions of law
Whenever it is provided by law that the court may presume a fact, it may either
regard such fact as proved, unless and until it is disproved, or may call for proof
of it.

(2)
(3)

Whenever it is directed by law that the court shall presume a fact, it shall regard
such fact as proved, unless and until it is disproved.
When 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.
I
PRESUMPTIONS OF FACTS:
Section 4 (1).

(DISCRETIONARY PRESUMPTIONS)

Other sections of the Evidence Act are:

Section 77(2). The court may presume that the signature to any such document is
genuine and that the person signing it held the office and qualifications which he
professed to hold at the time when he signed it. The court is allowed to presume and it
is incumbent on the person who argues otherwise to prove their case.
Section 92. 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.
Section 93. 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.
There are certain things that are non-contestable and one should not waste the courts
time trying to prove them.
Section 119. 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. Under this section there can be a number of presumptions:
a) PRESUMPTION OF LIKELY FACTS (IMMUTABILITY OF THINGS)
A thing or state of things which has been shown to exist within a period shorter than that
within which such things or state of things usually cease to exist is presumed to be still
in existence. An example is given in the case of
Kanji & Kanji V. R. 1961 E.A 411 C.A
In this case a sisal factory employees arm was amputated by a sisal decorticator in
April 1960. An examination done by a Mr. Perkin in September 1960 showed that there
was no barrier or fence to protect the employees when feeding the machine with sisal
leaves. The firm was held liable for failing to provide ample barriers to protect
employees from the machine and this finding was held on the basis of the presumption
of the immutability of things. On appeal the factory owner had argued that there was

some form of fence at the Factory when the accident occurred in 1960. This barrier was
not found to be in place in September when Mr. Perkins did his inspection. The Court
held that the Magistrate was correct in presuming that the machine was in the same
condition in April as it was in September 1960. It is unlikely that there was a barrier in
April which disappeared by September but the factory owners were welcome to bring in
evidence to prove that there had been a barrier in April.
b) PRESUMPTION OF REGULARITY
It is based on sound public policy which imputes good faith on official and judicial
conduct. The burden is on he/she who alleges irregularity to bring the evidence to
disprove or establish the irregularity. Looking at how our courts run, this might not be
the way to go. For instance if your file gets lost, will you allege that the file got lost by
the court.
c) THE COMMON COURSE OF BUSINESS HAS BEEN FOLLOWED
The basis of this presumption is business practice. If some business has been carried
out pursuant to this common course, it is going to be presumed to be so unless the
person alleging otherwise brings evidence to the contrary. If you have a quarrel with the
common course of business, it is incumbent on you to prove that the common course of
business was not followed.
d) ACCOMPLICES ARE UNWORHTY OF CREDIT & THEIR EVIDENCE SHOULD
NOT BE USED TO CONVICT UNLESS IT IS CORROBORATED
There are certain witnesses who are held suspect and accomplices are some of these
witnesses. The reasons for the unworthiness of the evidence are that an accomplice is
a participant in the offence and such a person would be highly tempted to pass the
buck. Having participated in the commission of the offence an accomplice is generally
an immoral person and their word should not be taken without corroboration. An
accomplice is likely to favour the state in hope for a pardon thus t is necessary to get
independent testimony on material particulars.
Davies v. DPP 1954 AC 378
The Appellant together with other youths attacked another group with fists. One of the
members of the other group subsequently died of stab wounds inflicted by a knife. Six
youths including the Appellant and one L were charged with murder but finally the
Appellant alone was convicted. L and the others were convicted of common assault. At
the Appellants trial, L gave evidence for the prosecution. Referring to an admission by
the Appellant of the use of a knife by him. The Judge in this case did not warn the Jury
on the danger of accepting Ls evidence without corroboration. On Appeal the Appellant
was saying that he was wrongly convicted because of lack of this warning on the part of
the judge. The court held that there was no good reason for quashing the conviction
because L did not know before the murder that any of his companions had a knife.
Essentially the court held that L was not an accomplice in the crime of murder. The
court here defined accomplices as persons who are Participes Criminis in respect of the
actual crime charged whether as principal participants before or after the fact. It
included people who procured, aided or abetted in the commission of the crime. The
Court was trying to exonerate L from being a participant. He did not participate in the
stabbing because he was not aware that his colleague had a knife.
e) PRESUMPTION OF GUILTY KNOWLEDGE.

From experience we can infer that a woman who is in possession of stolen goods after
the theft and cannot give account of those goods is either the thief or has received them
knowing them to be stolen-the doctrine of recent possession was formulated in the case
of R v Loughlin 35 Cr App. R 69 .
In Zus V. Uganda the Appeal court refused to apply the doctrine of recent possession
after the accused was found in possession of a stolen bicycle 7 months after it had been
recorded lost. The trial court had actually applied that doctrine to convict the thief of
both the theft and receiving stolen goods because the accused had not given any
reasonable explanation by how he had come upon the bicycle. The Appeal Court held
that 7 months cannot be described as recent and consequently the Court of Appeal
quashed the conviction for theft while upholding the conviction for receiving stolen
goods.

II

REBUTTABLE PRESUMPTIONS OF LAW

To rebut this presumption you need conclusive evidence. These are presumptions that
are decreed by law. A good example is the presumption of genuineness in a document
purporting to be the Kenya Gazette. There is also the presumption that a person
between 8 and 12 is not criminally liable unless it can be shown that he knew that his
action was morally and legally wrong. Once you establish the basic fact, then the
person could not be exposed to criminal liability unless you bring evidence to show that
he knew that what he did was legally and morally wrong.
Section 83. Presumptions as to documents
(1) The court shall presume to be genuine every document purporting to be a
certificate, certified copy or other document which is(a) declared by law to be
admissible as evidence of any particular fact; and (b) Substantially in the form, and
purporting to be executed in the manner, directed by law in that behalf; and (c)
Purporting to be duly certified by a public officer.
(2) The court shall also presume that any officer by whom any such document purports
to be signed or certified held, when he signed it, the official character which he claims in
such document. To be able to disprove documents under this act you have to bring
evidence.
Records of Evidence
Section 84 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(a) that the
document is genuine; (b) that any statements as to the circumstances in which it was
taken, purporting to be made by the person signing it, are true; and (c) that such
evidence was duly taken.
By the use of the word shall, documents are presumed to be genuine.
Section 85. 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.
There is a public policy that such a documents shall be genuine unless there is
conclusive evidence to the contrary.
Sections 86, 87 and 88,
Section 86: (1)
The court shall presume the genuineness of every document
purporting to be(a) London Gazette, the Edinburgh Gazette, or the official Gazette of
any country in the Commonwealth. (b) A newspaper or journal; (c) A document directed
by any law to be kept by any person, if such document is kept substantially in the form
required by law and is produced from proper custody.
(2) Documents are said to be in proper custody if they are in the place in which and under
the care of the person with whom they would naturally be; but no custody is improper if
it is proved to have had a legitimate origin, or if the circumstances of the particular case
are such as to render such an origin probable.
Section 87. Where any publication or part thereof indicates or purports to indicate the
name of any person by or on behalf or under sponsorship of whom, or the place at
which or date on which, such publication 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
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.
Use of the word shall all publications will be deemed to have been published, edited,
printed in the place that they are said to have been published unless you can bring
evidence to the contrary.
Section 88: When any document is produced before any court, purporting to be a
document which, by the law if 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(a) the court shall presume that such seal,
stamp or signature is genuine, and that the person signing it held, at the time when he
signed it, the judicial or official character which he claims in such document; and (b)
the document shall be admissible for the same purpose for which it would be admissible
in England.
Section 89: (1) The court shall presume that maps or plans purporting to be made or
published by the authority of the Government, or any department of the Government, of
any country in the Commonwealth were so made or published and are accurate.
(2)
Maps or plans specially made for the purposes of any cause or other
proceeding, civil or criminal, must be proved to be accurate.
Section 90. 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.
Laws and Judicial Reports are presumed to be accurate.
Section 91. 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.
Section 92. 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.
Section 93. 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.
Section 94. 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.
Section 95 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.

PRESUMPTION OF DEATH
Section 118 (a) 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.

1.
2.
3.

If a person has not been heard of for 7 years by people who would have heard from him
he is presumed dead. It is a rebuttable presumption of law premised on length of time
of absence of a person.
For the presumption to hold the persons have to be,
There are people who would likely to have heard from that person in that period.
That those persons have not heard from the person;
All due enquiries have been made as appropriate in the circumstances.
Chard V. Chard (1956) 2 AER 259
In this case parties to a marriage celebrated in 1933 sought decrees of nullity on the
grounds that the husband had been through a marriage ceremony in 1909. The first
wife in respect of whom there was no evidence of ill health or registration of death was
last heard of in 1917 and would be aged 44 in 1933. There were reasons which might
have led her not to wish to be heard of by her husband or his family in that between
1917 and 1933 the husband was continually in prison. The question was whether one
could presume that she was dead and therefore hold this marriage of 1933 valid. The

court held that there was no evidence of a person who would have been likely to have
heard of the first wife between 1917 and 1933 and consequently the presumption of
death was inapplicable in which case the nullity would not go through but they would
have to bring in more evidence.
Prudential Assurance V. Edmonds
This was an action based on life insurance. The issue was whether the defendant was
dead or alive. The defence was that the defendant was not dead. The family gave
evidence of not having heard from the man for more than 7 years. However, his niece
had written to her mother from Australia stating to have seen him in the street in
Melbourne but that he was lost in the crowds before she could speak to him. The court
here held that the presumption of death could not hold in the light of this evidence by
the niece.
PRESUMPTION OF MARRIAGE:
1.

When does the presumption of marriage arise? This arises in two situations,
Where there has been a ceremony of marriage and subsequently cohabitated AND if
the parties had capacity to contract a marriage then the law presumes that they are
validly married. You establish presumption of marriage through capacity to marry,
ceremony and cohabitation. One talks of formal validity of the marriage this is the law
of the place where you purport to have gotten married (i.e. law of the locus or lex loci of
celebration of the marriage) once it is admitted that a marriage was celebrated between
2 persons who intended to marry then the formal validity is presumed to exist.
Piers V. Piers the couple got married in a private dwelling house while the law required
as a prerequisite for the validity of such a marriage that a special licence be obtained.
The Piers did not get that kind of licence and when the marriage turned sour, the
validity of the marriage was questioned. It was held that the presumption of marriage in
favour of the legality of marriage is not to be lightly repelled. The evidence against it or
evidence to rebut it must be strong, distinct, satisfactory and conclusive.
Maherdavan V. Maherdavan
Deals with a marriage. Whether it was valid or not valid (formal validity or conforming to
the law of the land)
Essential validity: this essentially speaks to people living together as man and wife.
This will go to prove of the ceremony itself. The law here is liberal. There does not
have to have been a ceremony at the Registrars office, it could have been a customary
law marriage.
R V. Shaw (1943) Times Law Report 344
This was a case of bigamy where there was proof of celebration of a prior marriage and
the accused did not give evidence to rebut this evidence. The man though he denied
did not bring evidence to rebut.
COHABITATION: This is where a man and woman live together and hold themselves
as man and wife to all whom they interact with. There is a presumption that they are
married.
Mary Njoki V. John Kinyanjui Mutheru & Others CA 71 OF 194
Mary Njoki was a girlfriend of the deceased since her university days and his at the
school of law. They were to be seen together during the holidays. He would save some

money from his allowance and send to her at campus. After their graduation they lived
together at different places and then the deceased expired. Njoki sought a share of the
deceased estate. This move was opposed by the deceaseds brothers who argued that
she was not a wife. The court held that the presumption of marriage could not be
upheld here. The judges stressed the need for quantitative and qualitative
cohabitation. Long and having substance. They gave examples as in having children
together, buying property together which would move a relationship from the realm of
concubinage to marriage.
Aronegary V. Sembecutty
It was held that where it is proved that a man and a woman have gone through a form of
marriage, the law will presume unless the contrary be proved, that they were living
together in consequence of a valid marriage and not in a state of concubinage.
Case v. Ruguru [1970] E.A. 55
Where the Plaintiff a white man was cohabitating with the defendant after a while the
relationship became sour. It was alleged that the plaintiff sued for eviction of the
Defendant on trespass and to his defence the Plaintiff called evidence that he had
actually been married to a white woman in 1996 and the marriage had not been
dissolved. He admitted having lived with the Defendant for sometime and having paid
Kshs 3,000/= as dowry. Evidence showed that Kshs 3,000/= was not dowry and that no
ram had been slaughtered as required by customs. The court held that as a mere
licensee the Defendant was liable for eviction for trespass.
HOTTENSIAH WANJIKU YAWE V. PUBLIC TRUSTEE C. A. 13 of 76
Yawe, a person from Uganda resident in Nairobi was killed in a road accident in Uganda
in 1972. He was a pilot with East African Airways and lived in Nairobi West. After his
death, the Appellant Wanjiku claimed to be his widow and claimed that she had 4
children. Some Ugandan claimants however denied that she was his wife and that the
deceased was not married. Evidence was called which showed that the deceased lived
with the Appellant as a wife and also when he applied for a job he had named the
Appellant as a wife and the two were reputed as man and wife and cohabited as man
and wife for over 9 years.
The Court held that long cohabitation as man and wife gives rise to presumption of
marriage and only cogent evidence to the contrary could rebut such a presumption.
WANJIKU V. MACHARIA [1968]
Wanjiku petitioned for maintenance from Macharia calling to her aid a marriage
certificate. The two had gotten married in 1963, stayed together as husband and wife
until the relationship turned sour. She had testified on oath that she had been married to
another man in 1953 or thereabouts.
The court held that they would not presume marriage because all that was required to
rebut presumption of marriage by cohabitation was some evidence that leads the court
to doubt the validity of marriage. In the words of the court, Wanjiku had no validity of
marriage.

KIZITO CHARLES MORAA V. MRS MARY ROSE VERNOUR ALIAS ROSEMARY

MORAA. C.A. NO. 61 OF 1984.
The Appellant sued for trespass and various acts of nuisance and a declaration that the
Respondent was never his wife. The Respondent had been married to a Mr. Vernour
who had fathered one of her children and they had gotten married in a marriage of
convenience. She had been a headmistress and a pregnancy would have embarrassed
her. Mr Vernour left for England whereupon she moved to stay with the Appellant for 4
years and had 3 children. Trouble started when they had a mentally retarded child. It
was argued in court on her behalf that a presumption of marriage be held. The court
held that no marriage could be held and the marriage between her and Mr Vernour had
not been over, she had no capacity to marry and her cohabitation was adulterous which
had unfortunately brought forth children.

III

IRREBUTABLE PRESUMPTIONS OF THE LAW

Presumption of legitimacy
Section 118 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 (280)
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.
Gordon V. Gordon (1903) A C 141
The husband brought divorce proceedings against the wife on grounds of adultery.
Divorce was granted and the custody of the children was given to the husband. The
wife applied for variation on the grounds that one of the children was not the natural
child of the father but a son of the correspondent. The court held that sexual
intercourse between a man and wife must be presumed and nothing can bastardise a
child born in wedlock.
Age of criminal culpability
Under the Penal Code a child under 8 cannot commit a crime and a boy of under 12
years cannot know a person carnally.
STUDENTS MUST REFER TO THE HANDOUT FOR FURTHER READING