Law of Evidence at Kenya
Kenya's law of evidence is primarily governed by the Evidence Act (Cap. 80), which outlines the rules for admissibility, evaluation, and presentation of evidence in both civil and criminal proceedings. The Act has undergone several amendments to adapt to evolving legal standards and technological advancements.
📘 Overview of the Evidence Act (Cap. 80)
Assented to on December 9, 1963, and commenced on December 8, 1963, the Evidence Act provides a comprehensive framework for the legal handling of evidence in Kenya. It has been amended multiple times to address emerging legal challenges and to incorporate modern practices. (Evidence Act - Kenya Law)
⚖️ Key Provisions of the Evidence Act
1. General Rules of Admissibility
Section 5 – General restriction of admissibility of evidence: This section outlines the general restrictions on the admissibility of evidence, emphasizing the need for relevance and legality in the presentation of evidence. (Section 5 of Evidence Act CAP 80 Kenya: General restriction of admissibility of evidence)
Section 8 – Facts relating to motive, preparation, and conduct: Allows the introduction of evidence concerning a person's motive, preparation, or conduct related to the matter in question. (Section 8 of Evidence Act CAP 80 Kenya: Facts relating to motive, preparation and conduct)
2. Oral Evidence
Section 62 – Oral evidence: All facts, except the contents of documents, may be proved by oral evidence. (CAP. 80)
Section 63 – Oral evidence must be direct: Oral evidence must be direct, meaning it should come from a witness who directly perceived the fact. (CAP. 80)
3. Documentary Evidence
Section 64 – Proof of contents of documents: The contents of documents may be proved either by primary or secondary evidence. (Section 25 of Evidence Act CAP 80 Kenya: Confession defined)
Section 65 – Primary evidence: Primary evidence means the document itself produced for the inspection of the court. (Section 25 of Evidence Act CAP 80 Kenya: Confession defined)
Section 66 – Secondary evidence: Secondary evidence includes certified copies or copies made from the original by mechanical processes. (Section 25 of Evidence Act CAP 80 Kenya: Confession defined)
4. Confessions and Admissions
Section 25 – Confession defined: A confession comprises words or conduct from which an inference may reasonably be drawn that the person making it has committed an offence. (Evidence Act Cap 80)
Section 25A – Confessions generally inadmissible: A confession made by an accused person is not admissible unless it is made in court before a judge, magistrate, or police officer (other than the investigating officer). (Evidence Act Cap 80)
Section 26 – Confessions and admissions caused by inducement, threat, or promise: A confession made under inducement, threat, or promise is inadmissible unless the impression caused by such inducement has been fully removed. (Section 5 of Evidence Act CAP 80 Kenya: General restriction of admissibility of evidence)
5. Expert and Digital Evidence
Section 48 – Opinions of experts: Allows the court to form an opinion upon a point of foreign law, science, or art, or as to identity or genuineness of handwriting or finger impressions. (Section 8 of Evidence Act CAP 80 Kenya: Facts relating to motive, preparation and conduct)
Section 78A – Admissibility of electronic and digital evidence: Electronic messages and digital material are admissible as evidence, provided certain conditions regarding reliability and integrity are met. (CAP. 80)
🧬 Recent Amendments to the Evidence Act
The Evidence (Amendment) Act, 2023 introduced several significant changes to modernize the law: (What are the amendments to the Evidence Act in Kenya? - Quanswer)
Section 60: Allows for the admissibility of DNA evidence in criminal cases. (What are the amendments to the Evidence Act in Kenya? - Quanswer)
Section 60A: Provides for the admissibility of expert evidence on DNA testing. (What are the amendments to the Evidence Act in Kenya? - Quanswer)
Section 78: Allows for the admissibility of hearsay evidence in certain circumstances. (What are the amendments to the Evidence Act in Kenya? - Quanswer)
Section 80A: Provides for the admissibility of confessions made to religious leaders. (What are the amendments to the Evidence Act in Kenya? - Quanswer)
Section 107: Allows for the admissibility of electronic records in criminal cases. (What are the amendments to the Evidence Act in Kenya? - Quanswer)
Section 112: Allows for the admissibility of transcripts of intercepted communications in criminal cases. (What are the amendments to the Evidence Act in Kenya? - Quanswer)
📚 Accessing the Full Text
For a detailed understanding, you can access the full text of the Evidence Act (Cap. 80) on the official Kenya Law website: (Evidence Act - Kenya Law)
👉 Evidence Act – Kenya Law
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