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Question One
a) The general rule in civil suits as regards to burden of proof is that the party who asserts the
affirmative of an issue bears the burden of proving it. Such is the position in Section 112 of
the Evidence Act. This principle was propounded in the leading of Joseph Constantine
Steamship Line, Ltd. v Imperial Smelting Corporation, Ltd. The House of Lords held that
where the plaintiffs wished to show that the frustration of the contract was due to the
defendants' negligence, the plaintiffs must allege and prove it. For the purpose of this section
it is also important to note the legal burden is the obligation placed on a party to prove a fact
in issue, whereas the evidential burden (the burden of passing the judge) is that placed on a
party to adduce sufficient evidence on a fact which is asserted for it to become an issue in the
Therefore in the case Sloane V CowBoys Ltd., the plaintiffs are seeking to sue for a breach
of contract therefore it is up to them to discharge a legal burden on the existence of the
contract itself. This is would be a legal burden as without a contract there would be no cause
of action. This burden is to be made on the balance of probabilities as is the general standard
in civil cases.
In the case of Zakayo Wanzala Makomere v West Kenya Sugar Co. Ltd , the
appellant seek to sue the respondent for damages resulting from an accident which occurs
during his alleged tenure as an employee with the company. The appeal judge held that he did
not discharge his legal burden in proving his employment at the company, hence this coupled
with other failures in proving caused him to lose the suit. The need to firstly prove his
employment relates to the facts in question as Sam Sloane is faced with the first important
issue of proving the existence of the contract.
Should CowBoys Ltd. chose to rebut this claim of a contract they bear an evidential burden
held on a balance of probabilities.
ii) The legal and evidential burden of proving the death of Diana falls on Sam Sloane. As he
is the one instituting the suit. That is, on the the general rule of asserting a claim and proving
it, Sloane must prove the death of the horse Diana. They also have the evidential burden in
the sense that they must put in some evidence to convince the court there is a case to answer.
This must be done on a balance of probabilities.

Zakayo Wanzala Makomere v West Kenya Sugar Co. Ltd [2013] eKLR
iii) The legal and evidential burden of proving absence of veterinary surgeons examination
falls on CowBoys Ltd. This would be in keeping with the general principle that, the party
who risks lose if a fact is not proven is to whom the burden of proof lies.
In the case of
Levison & Another v. Patent Steam Carpet Cleaning Co. [1978] QB 79 The
defendants were guilty of unexplained loss of a Chinese carpet which had been delivered to
them for cleaning and which belonged to the plaintiff. A clause in the contract signed by the
plaintiffs would have exempted the defendants from liability for negligence but not for any
fundamental breach. The plaintiff sued the cleaners for loss of carpet. The trial court gave
judgment against the cleaners. They appealed and it was held on appeal that in a bailment
contract when a bailee seeks to escape liability on the ground that he was not negligent, or
that he was excused by an exception or limitation clause, then he must prove what happened
to the goods. Having failed to satisfactorily explain the circumstances surrounding the loss of
the carpet, the carpet cleaner was liable.
Thus in relating to the facts at hand, CowBoys Ltd. are seeking to prove that they are not
liable by virtue of their alleged fact that Sam Sloane failed to conduct the veterinary
surgeons examination. Hence they bear the legal and evidential burden of proving this fact
and not only so but that the absence of the medical examination caused the death of Diana,
the horse.

i) The general rule in criminal cases on burden of proof, as laid down in the case of
Woolmington v DPP states;
Throughout the web of English criminal law, a general thread is always seen, that it is the
duty of the prosecution to prove the prisoners
Thus the presumption of innocence arises. This is to say that the legal burden of proof lies on
the prosecution which is meant to adduce evidence on a standard of proof beyond reasonable
doubt. The defence usually bears an evidential burden to disapprove the evidence put forth

Levison & Another v. Patent Steam Carpet Cleaning Co. [1978] QB 79
Taylor and Francis, Evidence law Cards
against him. Though, this evidential burden may shift where the prosecution is to counter a
There are however, exceptions to the general rule on the legal burden in criminal cases,
where this burden may shift to the defence by statutory exception or instances whereby the
accused seeks to make a defence of insanity or intoxication. This case falls under the ambit of
the final exception which is also provided for in Section 111 of the Evidence Act.

According to the facts, Mwizi seeks to make a defence of intoxication. Therefore he bears the
legal burden of proving his intoxication as was the case in Nyamweru s/o kinyaboya v. R.
To discharge this legal burden the accused must meet the standard of proof on a
balance of probabilities. Further, it is important to note, that the duty of the accused only goes
as far as proving that he was intoxicated and does not go to the level of proving that he could
not form intent. This was stated in the case of Malungu s/o Kieti v. R whereby the appeal
judge ruled that the burden of proving that an accused is capable of forming the intent
necessary to constitute the offence of murder always remains on the prosecution. So even
when the defence raises the defence of intoxication, the burden of prove is still on the

ii) The general rule in civil cases is that, he who affirms must prove.
According section 112
of the Evidence Act 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.
Simply put, the party who asserts the affirmative of an issue bears the legal burden of proving
it. This is as per the ruling in the case of Joseph Constantine Steamship Line, Ltd. v Imperial
Smelting Corporation, Ltd. where it was held that where the plaintiffs wished to show that the
frustration of the contract was due to the defendants' negligence, the plaintiffs must allege
and prove it.
The respondent in a civil case bears an evidential burden of mounting their defence. They
must rebut the evidence presented by the plaintiff.

Kenya Evidence Act 111(2) c
Kenya lawresource centre.blogspot
Therefore in this case, Mwizi bears the legal and evidential burden of proving the elements of
conversion in order for his burden to be discharged, This position was clearly stated in the
case of Kirugi & Ano. -vs- Kabiya & 3 Others [1987] KLR 347 wherein the Court of
Appeal stated that the burden was always on the plaintiff to prove his case on the balance of

Question Two
a) The status of Bs marriage to C if A is alive.
There are three presumptions as regards to marriage. These include the presumption of
formally validity, which arises when the marriage passes all formal requirements of the
local law. The presumption of marriage arising from cohabitation, 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. That at some point they got married.

Finally there is the presumption of essential validity which operates on the proof or
admission of the basic fact, that a formally valid marriage was celebrated and in the
absence of sufficient evidence to the contrary that would lead the marriage to be a nullity.
A nullity may arise when parties to the marriage lack capacity to marry where; they may be
under the legal age of marriage, where the parties are within the limited degrees of
consanguinity and whereby either of the parties was already married. This is as by the
Matrimonial causes Act.

In the case of
R V. Shaw (1943) a case of bigamy, there was proof of celebration of a prior
marriage and the accused did not give evidence to rebut this evidence, though he denied it.
This case exempiles the burden on the person alleging the nullity to prove it and the
respondent to disprove it. According to the facts of the case in question 2, B, the wife and C
the the husband of December 1998 were in an essentially valid marriage but the fact of the
previous marriage raises question as to the new marriages validity hence leading to the next
matter in issue, can the previous marriage be seen as having have ended on the presumption
of the death on A?

Zakayo Wanzala Makomere v West Kenya Sugar Co. Ltd [2013] eKLR
Matrimonial Causes Act section 14
Times Law Report 344
A presumption of death only arises when, under 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
Beyond the Act for the presumption to hold,
1. There have to be people who would be likely to have heard from that person within the
seven years
2. Those persons must not have heard from the person;
3. All due enquiries must have been made as appropriate in the circumstances.

In relation to the facts in question, the period between the disappearance of A and the
marriage between B and C is only 4 months, it therefore does not meet the statutory
requirement for A to be presumed dead. Hence the second marriage is null and void owing to
the fact that under section 14 of the Matrimonial causes Act, B was still married to A if in
fact he was alive.
On the proof or admission of the basic fact that a child was born or conceived during
lawful wedlock, it is presumed, in the absence of sufficient evidence to the contrary,
that the child is legitimate. Such is the provision in section 118 of the Evidence Act.
In the case of Re Overbury Shepphered v Mathews, six months after her first
husbands death, a woman remarried giving birth to a child two months after the new
marriage. The court held that the child was the legitimate daughter of the first
husband, their being insufficient evidence to the rebut the presumption. Keene notes
that in cases of paternity, it is correct to treat the date of conception and not the date
of birth as the determining factor.
Owning to the fact that B was pregnant before her marriage to C , the child D is
therefore not a legitimate heir to C.

Question Three
The first evidential issue that arises according to the facts is that of the death of the parents.
The aspect of evidence law which then must be considered is that of presumption of death
which is premised on length of time of absence of a person. Section 118A of the Evidence

Keene page 658
Act makes a provision on the this presumption stating that once a person is absent for seven
years and is not heard from by those likely to have heard of him within that time, the law may
presume him dead.
For the presumption to hold, there must be people who are likely have heard from the alleged
deceased within the seven years, this people must not have heard from him and finally there
must have been adequate enquires made as regards to his living state. In Chard v Chard the
presumption did not arise due to the lack of evidence of the requirement of the first basic fact,
of a person who was likely to have heard from him.

In the case of Re Lewes Trusts it was stated, to raise the presumption, the onus of proof rests
with the person who will benefit from the declaration of death.
Therefore due to the fact
that Ciku and Mwangi are claiming that their parents are dead, they bear the burden of
proving the affirmative of this fact also, that they seek to benefit from the declaration of the
death they bear a legal and evidential burden of proof. This burden is considered by the court
on a balance of probabilities.
The next evidential issue to be proved is the legitimacy of Kariuki. This arises as a result of
the express provision in Mr Kariukis will that his estate be divide among thelegitimate
children of my family .
The Section 118 of the Evidence Act provides that any child born during the subsistence of a
marriage is to be presumed legitimate unless evidence to the contrary can be proved. The
exception to this presumption is only where it can be proved that the parents had no access to
each other for example whereby the man was at the time imprisoned. Also where impotency
can be proved.
In Knowles v Knowles the court applied the presumption, but in his ruling, the judge was of
the opinion that the presumption involved both a presumption of paternity as well as that of
date of conception. According to the facts, the plaintiffs accept the fact of Kariukis birth
during the marriage but question his legitimacy in terms of parentage. Therefore the legal
and evidential burden of proving the illegitimacy of Kariuki lie on Ciku and Mwangi as they
are the parties asserting this fact and seek to rely upon this it. Their argument can adduce
evidence on the absence of their father during the period of his imprisonment.

Keene ,pg 660
(1871) 6 Ch. App. 356.)

On the standard of proof the court in Miller v. Minister of Pensions,
described it simply as
"more probable than not." That is to say that, the standard is met if the proposition, of
illegitimacy, is more likely to be true than not true.
Kariuki then, as the party to whom the presumption operates against bears the evidential
burden of proving facts to the contrary. That is, to prove his legitimacy.

Miller v Minister of Pensions [1947] ALL ER 372