Presumptions Brief Notes

8/16/2019 Presumptions Brief Notes

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PRESUMPTIONS

Defnition

The Evidence Act does not defne the term “Presumption”. Presumption maybe defned as:

(a) Assumption that a act exists based on the !no"n or provenexistence o some other act or #roup o acts.(b) An inerence as to the existence o one act rom the existence o some other act ounded upon a previous experience o theirconnection.

A presumption imp$ies that some acts are to be ta!en and deemed to be sota!en "ithout proo un$ess the court insists on proo. %ost presumptions areru$es o evidence "hich ca$$ or certain resu$t in a #iven case un$ess theadverse$y a&ected party rebuts it "ith other evidence. 'n some cases apresumption mere$y shits the burden o producin# evidence or persuasion tothe opposite party "ho 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 theestablishment 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 aninvitation to the court to draw a certain inference. !ection " of the #vidence $ct dealswith such.

%. REBUTTABLE PRESUMPTIONS OF LAW They are inferences that must be drawnin the absence of conclusive evidence to the contrary. $ good example is the

presumption of innocence that every person accused of a crime is innocent until provedguilty. &ntil there is conclusive evidence dispelling the innocence of the accusedperson. #ssentially 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 howmuch evidence exists to the contrary. 'nce you establish the basic fact pertaining tothe presumption then you have to draw the inference that will dispel that presumption.They will usually be drawn from statutory provisions. They are public policypronouncements which decree that in the interest of public certain matters are decreedto be a certain way e.g. an ( year old boy is not criminally culpable.

Section 4 of the #vidence $ct defines presumptions of facts and rebuttablepresumptions of law

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!W"ene#e$ it is %$o#i&e& 'y a) t"at t"e cou$t may %$esume a *act+ it may eit"e$$e,a$& suc" *act as %$o#e&+ uness an& unti it is &is%$o#e&+ o$ may ca *o$ %$oo*o* it-.


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W"ene#e$ it is &i$ecte& 'y a) t"at t"e cou$t s"a %$esume a *act+ it s"a $e,a$&suc" *act as %$o#e&+ uness an& unti it is &is%$o#e&-.

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W"en one *act is &eca$e& 'y a) to 'e concusi#e %$oo* o* anot"e$+ t"e cou$ts"a+ on %$oo* o* t"e one *act+ $e,a$& t"e ot"e$ as %$o#e&+ an& s"a not ao)e#i&ence to 'e ,i#en *o$ t"e %u$%ose o* &is%$o#in, it-

I PRESUMPTIONS OF FACTS (2ISCRETIONAR3 PRESUMPTIONS!ection " )1*.

'ther sections of the #vidence $ct are:

Section (/- The court may presume that the signature to any such document isgenuine and that the person signing it held the office and +ualifications which heprofessed to hold at the time when he signed it., The court is allowed to presume and itis incumbent on the person who argues otherwise to prove their case.

Section 5/. The court may presume that any document purporting to be a copy of a -udgment or -udicial record of any country not forming part of the ommonwealth isgenuine and accurate and that such -udgment or record was pronounced or recordedby a court of competent -urisdiction if the document purports to be certified in anymanner which is certified by a /enya consular officer or diplomatic representative in orfor such country to be the manner commonly in use in that country for the certification of copies of -udgments or -udicial records.Section 50. The court may presume that any boo0 to which it may refer for informationon matters of public or general interest and that any published map or chart thestatements of which are admissible facts and which is produced for its inspection waswritten 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 noncontestable and one should not waste the courtstime trying to prove them.Section 115. The ourt may presume the existence of any fact which it thin0s li0ely tohave happened regard being had to the common course of natural events humanconduct and public and private business in their relation to the facts of the particularcase. &nder this section there can be a number of presumptions:

a PRESUMPTION OF LI6EL3 FACTS (IMMUTABILIT3 OF T7IN8S $ thing or state of things which has been shown to exist within a period shorter than thatwithin which such things or state of things usually cease to exist is presumed to be stillin existence. $n example is given in the case of6an9i : 6an9i ;- R- 15


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some form of fence at the 8actory when the accident occurred in 145. This barrier wasnot found to be in place in !eptember when 6r. 7er0ins did his inspection. The ourtheld that the 6agistrate was correct in presuming that the machine was in the samecondition in $pril as it was in !eptember 145. 2t is unli0ely that there was a barrier in

$pril which disappeared by !eptember but the factory owners were welcome to bring in

evidence to prove that there had been a barrier in $pril.' PRESUMPTION OF RE8ULARIT32t is based on sound public policy which imputes good faith on official and -udicialconduct. The burden is on he9she who alleges irregularity to bring the evidence todisprove or establish the irregularity. oo0ing at how our courts run this might not bethe way to go. 8or instance if your file gets lost will you allege that the file got lost bythe court.

c T7E COMMON COURSE OF BUSINESS 7AS BEEN FOLLOWE2The basis of this presumption is business practice. 2f some business has been carriedout pursuant to this common course it is going to be presumed to be so unless theperson alleging otherwise brings evidence to the contrary. 2f you have a +uarrel with the

common course of business it is incumbent on you to prove that the common course ofbusiness was not followed.& ACCOMPLICES ARE UNWOR7T3 OF CRE2IT : T7EIR E;I2ENCE S7OUL2

NOT BE USE2 TO CON;ICT UNLESS IT IS CORROBORATE2There are certain witnesses who are held suspect and accomplices are some of thesewitnesses. The reasons for the unworthiness of the evidence are that an accomplice isa participant in the offence and such a person would be highly tempted to pass thebuc0. ;aving participated in the commission of the offence an accomplice is generallyan immoral person and their word should not be ta0en without corroboration. $naccomplice is li0ely to favour the state in hope for a pardon thus t is necessary to getindependent testimony on material particulars.2a#ies #- 2PP 15=4 AC 0>The $ppellant together with other youths attac0ed another group with fists. 'ne of themembers of the other group subse+uently died of stab wounds inflicted by a 0nife. !ixyouths including the $ppellant and one were charged with murder but finally the

$ppellant alone was convicted. and the others were convicted of common assault. $tthe $ppellant’s trial gave evidence for the prosecution.


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8rom experience we can infer that a woman who is in possession of stolen goods afterthe theft and cannot give account of those goods is either the thief or has received them0nowing them to be stolenthe doctrine of recent possession was formulated in the caseof < v Loughlin 3> r $pp. < 4 .2n ?us ;- U,an&a the $ppeal court refused to apply the doctrine of recent possession

after the accused was found in possession of a stolen bicycle ? months after it had beenrecorded lost. The trial court had actually applied that doctrine to convict the thief ofboth the theft and receiving stolen goods because the accused had not given anyreasonable explanation by how he had come upon the bicycle. The $ppeal ourt heldthat ? months cannot be described as recent and conse+uently the ourt of $ppeal+uashed the conviction for theft while upholding the conviction for receiving stolengoods.

II REBUTTABLE PRESUMPTIONS OF LAW

To rebut this presumption you need conclusive evidence. These are presumptions thatare decreed by law. $ good example is the presumption of genuineness in a documentpurporting to be the /enya @aAette. There is also the presumption that a personbetween ( and 1% is not criminally liable unless it can be shown that he 0new that hisaction was morally and legally wrong. 'nce you establish the basic fact then theperson could not be exposed to criminal liability unless you bring evidence to show thathe 0new that what he did was legally and morally wrong.

Section >0- P$esum%tions as to &ocumentsB)1* The court shall presume to be genuine every document purporting to be a

certificate certified copy or other document which isC)a*

declared by law to beadmissible as evidence of any particular factD and )b*

!ubstantially in the form andpurporting to be executed in the manner directed by law in that behalfD and )c* 7urporting to be duly certified by a public officer.)%* The court shall also presume that any officer by whom any such document purportsto be signed or certified held when he signed it the official character which he claims insuch document. To be able to disprove documents under this act you have to bringevidence.Reco$&s o* E#i&enceSection >4 Whenever any document is produced before any court purporting to be arecord or memorandum of any evidence given in a -udicial proceeding or before anyofficer authoriAed by law to ta0e such evidence and purporting to be signed by a =udgeor magistrate or any such officer as aforesaid the court shall presumeC)a*

that thedocument is genuineD )b* that any statements as to the circumstances in which it wasta0en purporting to be made by the person signing it are trueD and )c* that suchevidence was duly ta0en.Ey the use of the word ‘shall’ documents are presumed to be genuine.Section >=. The production of a copy of any written law or of a copy of the @aAettecontaining any written law or any notice purporting to be made in pursuance of a written


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law where such law or notice )as the case may be* purports to be printed by the@overnment 7rinter shall be prima facie evidence in all courts and for all purposeswhatsoever of the due ma0ing and tenor of such written law or notice.There is a public policy that such a documents shall be genuine unless there isconclusive evidence to the contrary.

Sections > an& >>+!ection (4: )1* The court shall presume the genuineness of every documentpurporting to beC)a* ondon @aAette the #dinburgh @aAette or the official @aAette ofany country in the ommonwealth. )b* $ newspaper or -ournalD )c* $ document directedby any law to be 0ept by any person if such document is 0ept substantially in the formre+uired by law and is produced from proper custody.

)%* Focuments are said to be in proper custody if they are in the place in which and underthe care of the person with whom they would naturally beD but no custody is improper ifit is proved to have had a legitimate origin or if the circumstances of the particular caseare such as to render such an origin probable.Section >- 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 atwhich or date on which such publication or any part thereof was contributed it shall inany proceedings for an offence under any written law or for contempt of any court bepresumed until the contrary is proved that such publication or part thereof wascontributed by or on behalf or under the sponsorship of such person or at such placeor on such date as the case may be. &se of the word ‘shall’ all publications will be deemed to have been published editedprinted in the place that they are said to have been published unless you can bringevidence to the contrary.Section >>: When any document is produced before any court purporting to be adocument which by the law if force for the time being in #ngland would be admissible

in proof of any particular in any ourt of =ustice in #ngland without proof of the seal orstamp or signature authenticating it or of the -udicial or official character claimed by theperson by whom it purports to be signedC)a* the court shall presume that such sealstamp or signature is genuine and that the person signing it held at the time when hesigned it the -udicial or official character which he claims in such documentD and )b* the document shall be admissible for the same purpose for which it would be admissiblein #ngland.Section >5 )1* The court shall presume that maps or plans purporting to be made orpublished by the authority of the @overnment or any department of the @overnment ofany country in the ommonwealth were so made or published and are accurate.)%* 6aps or plans specially made for the purposes of any cause or otherproceeding civil or criminal must be proved to be accurate.Section 5@- The court shall presume the genuineness of every boo0 purporting to beprinted or published under the authority of the @overnment of any country and tocontain any of the laws of that country and of every boo0 purporting to contain reportsof decisions of the courts of any country.aws and =udicial


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commissioner for oaths or any court -udge magistrate or /enya consular officer ordiplomatic agent was so executed and authenticated.Section 5/- The court may presume that any document purporting to be a copy of a

-udgment or -udicial record of any country not forming part of the ommonwealth isgenuine and accurate and that such -udgment or record was pronounced or recorded

by a court of competent -urisdiction if the document purports to be certified in anymanner which is certified by a /enya consular officer or diplomatic representative in orfor such country to be the manner commonly in use in that country for the certification of copies of -udgments or -udicial records.Section 50- The court may presume that any boo0 to which it may refer forinformation on matters of public or general interest and that any published map orchart the statements of which are admissible facts and which is produced for itsinspection was written and published by the person and at the time and place by whomor at which it purports to have been written or published.Section 54- The court may presume that a message forwarded from a telegraph officeto 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 besentD but the court shall not ma0e any presumption as to the person by whom suchmessage was delivered for transmission.Section 5= the court shall presume that every document called for and not producedafter notice to produce was attested stamped and executed in the manner re+uired bythe law.

PRESUMPTION OF 2EAT7

!ection 11( )a* Where it is proved that a person has not been heard of for sevenyears by those who might be expected to have heard of him if he were alive there shallbe a rebuttable presumption that he is dead.

2f a person has not been heard of for ? years by people who would have heard from himhe is presumed dead. 2t is a rebuttable presumption of law premised on length of timeof absence of a person.8or the presumption to hold the persons have to be

1. There are people who would li0ely to have heard from that person in that period.%. That those persons have not heard from the personD3. $ll due en+uiries have been made as appropriate in the circumstances.

C"a$& ;- C"a$& (15=


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court held that there was no evidence of a person who would have been li0ely to haveheard of the first wife between 11? and 133 and conse+uently the presumption ofdeath was inapplicable in which case the nullity would not go through but they wouldhave to bring in more evidence.P$u&entia Assu$ance ;- E&mon&s

This was an action based on life insurance. The issue was whether the defendant wasdead or alive. The defence was that the defendant was not dead. The family gaveevidence of not having heard from the man for more than ? years. ;owever his niecehad written to her mother from $ustralia stating to have seen him in the street in6elbourne but that he was lost in the crowds before she could spea0 to him. The courthere held that the presumption of death could not hold in the light of this evidence bythe niece.

PRESUMPTION OF MARRIA8E:

When does the presumption of marriage ariseG This arises in two situations

1.

Where there has been a ceremony of marriage and subse+uently cohabitated $HF ifthe parties had capacity to contract a marriage then the law presumes that they arevalidly married. Iou establish presumption of marriage through capacity to marryceremony and cohabitation. 'ne tal0s of formal validity of the marriage J this is the lawof the place where you purport to have gotten married )i.e. law of the locus or lex loci ofcelebration of the marriage* once it is admitted that a marriage was celebrated between% persons who intended to marry then the formal validity is presumed to exist.Pie$s ;- Pie$s the couple got married in a private dwelling house while the law re+uiredas a prere+uisite for the validity of such a marriage that a special licence be obtained.The 7iers’ did not get that 0ind of licence and when the marriage turned sour thevalidity of the marriage was +uestioned. 2t was held that the presumption of marriage in

favour of the legality of marriage is not to be lightly repelled. The evidence against it orevidence to rebut it must be strong distinct satisfactory and conclusive.Ma"e$&a#an ;- Ma"e$&a#anFeals with a marriage. Whether it was valid or not valid )formal validity or conforming tothe law of the land*#ssential validity: this essentially spea0s to people living together as man and wife.This will go to prove of the ceremony itself. The law here is liberal. There does nothave to have been a ceremony at the


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money from his allowance and send to her at campus. $fter their graduation they livedtogether at different places and then the deceased expired. H-o0i sought a share of thedeceased estate. This move was opposed by the deceased’s brothers who argued thatshe was not a wife. The court held that the presumption of marriage could not beupheld here. The -udges stressed the need for +uantitative and +ualitative

cohabitation. ong and having substance. They gave examples as in having childrentogether buying property together which would move a relationship from the realm ofconcubinage to marriage.

A$one,a$y ;- Sem'ecutty2t 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 livingtogether in conse+uence of a valid marriage and not in a state of concubinage.Case #- Ru,u$u 15@D E-A- ==Where the 7laintiff a white man was cohabitating with the defendant after a while therelationship became sour. 2t was alleged that the plaintiff sued for eviction of the

Fefendant on trespass and to his defence the 7laintiff called evidence that he hadactually been married to a white woman in 14 and the marriage had not beendissolved. ;e admitted having lived with the Fefendant for sometime and having paid/shs 35559K as dowry. #vidence showed that /shs 35559K was not dowry and that noram had been slaughtered as re+uired by customs. The court held that as a merelicensee the Fefendant was liable for eviction for trespass.

7OTTENSIA7 WANI6U 3AWE ;- PUBLIC TRUSTEE C- A- 10 o* <Iawe a person from &ganda resident in Hairobi was 0illed in a road accident in &gandain 1?%. ;e was a pilot with #ast $frican $irways and lived in Hairobi West. $fter hisdeath the $ppellant Wan-i0u claimed to be his widow and claimed that she had "

children. !ome &gandan claimants however denied that she was his wife and that thedeceased was not married. #vidence was called which showed that the deceased livedwith the $ppellant as a wife and also when he applied for a -ob he had named the

$ppellant as a wife and the two were reputed as man and wife and cohabited as manand wife for over years.The ourt held that long cohabitation as man and wife gives rise to presumption ofmarriage and only cogent evidence to the contrary could rebut such a presumption.

WANI6U ;- MAC7ARIA 15D

Wan-i0u petitioned for maintenance from 6acharia calling to her aid a marriagecertificate. The two had gotten married in 143 stayed together as husband and wifeuntil the relationship turned sour. !he had testified on oath that she had been married toanother man in 1>3 or thereabouts.The court held that they would not presume marriage because all that was re+uired torebut presumption of marriage by cohabitation was some evidence that leads the courtto doubt the validity of marriage. 2n the words of the court Wan-i0u had no validity ofmarriage.


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6I?ITO C7ARLES MORAA ;- MRS MAR3 ROSE ;ERNOUR ALIAS ROSEMAR3MORAA- C-A- NO- 4-

The $ppellant sued for trespass and various acts of nuisance and a declaration that the

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