What is burden of proof?  The term burden of proof draws from the Latin Phrase Onus Probandi and when we talk of burden we sometimes talk of onus.
Burden of Proof is used to mean an obligation to adduce evidence of a fact.  According to Phipson on the Law of Evidence, the term burden of proof has two distinct meanings
1.            Obligation on a party to convince the tribunal on a fact; here we are talking of the obligation of a party to persuade a tribunal to come into ones way of thinking.  The persuasion would be to get the tribunal to believe whatever proposition the party is making.  That proposition of fact has to be a fact in issue.  One that will be critical to the party with the obligation.  The penalty that one suffers if they fail to proof their burden of proof is that they will fail, they will not get whatever judgment they require and if plaintiff they will not sustain a conviction and if defendant no relief.  There will be a burden to persuade on each fact and maybe the matter that you failed to persuade on is not critical to the whole matter so you can still win.
2.            The obligation to adduce sufficient evidence of a particular fact.  The reason that one seeks to adduce sufficient evidence of a fact is to justify a finding of a particular matter.  This is the evidential burden of proof.  The person that will have the legal burden of proof will almost always have the burden of adducing evidence.

Section 107 of Evidence Act
Defines Burden of Proof –

Of essence to burden of proof is proving the matter in court.
(2) Refers to the legal burden of proof.

S. 109.   – Specifically exemplifies the Rule in S. 107 and it talks about proof of a particular fact.  It is to the effect that the burden of proof as to any particular fact lies on the person who wishes to rely on its existence.  Whoever has the obligation to convince the court is the person said to bear the burden of proof.  If you do not discharge the burden of proof then you will not succeed in as far as that fact is concerned.

Cases that exemplify Burden of Proof


Ryde v. Bushell  pg. 8 course outline

The defendant was seeking to rely on the defence of act of God and the court held that if a person wished to rely on defence of act of God one has to establish it through aid.

Omar Mohiddin V. Sikuthani  Pg. 8

 Where it is neither readily appreciated nor known that you are married to somebody the burden of proving that you are so married lies on you.  The total essence of proof is that the burden is on the one who wishes to prove that they are married

11th Case Course outline

Hakam Bibi v. Mistry

Kimani v. Gikanga

The principle is that if you want to rely on personal law, you have to establish what that law is.  In Kimani a person sought to rely on customary law and if you are relying on customary law you have to establish what the law is. 

Commissioner of Income Tax v. Baku

The principle is the same as in Valabras Shamzi v. Commissioner of Income Tax  these two cases establish the principle that if you dispute tax on the basis that it is excessive, the burden of proof is on you.  It is not up to the Commissioner to establish that it is excessive but it is in your interest to adduce evidence before the case to determine to what extent it is excessive.

If you are the person with a legal obligation to establish a matter then the burden of proof is on you.


The general rule is that burden of proof is borne by the Plaintiff in Civil cases and by the Prosecution in Criminal Cases.

Joseph Mbithi Maula v. R

In this particular case the 1st Appellant was convicted for handling cows stolen by the 2nd Appellant.  The trial Magistrate said in the course of his judgment ‘None of the accused disputed the fact that the cows mentioned in the three counts belong to the Respondent owners and they had been stolen from their bomas during the material nights.  They did not dispute the identity and ownership of the cows therefore I find all this as facts.’  The High Court affirmed the conviction but the court of Appeal found that the statement of the trial magistrate was a mis-direction.  In the words of the Court of Appeal it was up to the prosecution to prove that the cows were stolen.  In criminal cases the burden of proof has to be beyond reasonable doubt, having doubt or suspicion is not enough.  In the words of the Court of Appeal, the mere fact that the accused kept quiet did not approve of the matters.

Alois Nyasinga v. R

In that case which was a murder trial, there was evidence that at the time that the appellant committed the offence he was drunk.  He had stabbed the deceased the deceased in the neck inflicting him with a fatal wound.  The trial judge directed himself and the assessors that it was for the appellant to prove that he was so inebriated as to be unable to form the intent to kill.

On appeal, the decision of the first court was reversed by the Court of Appeal who said that the trial court had misdirected itself and the assessors on the matter of intent.  The Judge should have explicitly told the assessors that it was not for the Appellant to prove that he was so drunk he could not form intent to kill or hurt the deceased.  It was the duty of the prosecution to prove that the Appellant was not so affected as to be incapable of forming intent.  even though if a person is trying to establish a defence and one wants the court to excuse them from having done something, say murder and you want to plead self defence, or insanity, while it is incumbent for you to bring the matter before the court, it does not discount the prosecution’s duty to establish the intent.

Woolmington v. DPP

The accused was charged with the murder of his wife. He gave evidence that he had accidentally shot her.  The trial court directed the jury that once it was proved that the accused shot his wife; he bore the burden of disproving malice aforethought (intention).  On Appeal to the House of Lords it was stated that the trial court direction was not appropriate, that it was misdirection, and stated as follows: ‘throughout the web of English criminal law one golden thread is always to be seen. That is the duty of the prosecution to prove the prisoner’s guilt subject to what I have said as to the defence of insanity and subject also to any statutory exception.  He continues to say that no matter what the charge or where the trial the principle that the prosecution must prove the guilt of the prisoner is part of the law of England and no attempt to whittle it down can be entertain.”

In Woolmington you will see intimations as exceptions to the general rule.


The principle is that burden of proof in civil cases rests with the plaintiff.

Joseph Constantine Steamship Line v. Imperial Smelting Co. Ltd. [1942] A.C 154

In this case the plaintiff; Charterers of a ship claimed damages from the owners for failure to load.  The defendants pleaded that the contract had been frustrated by destruction of the ship owing to an explosion the cause of which was unclear.  Such frustration would have concluded the case in favour of the defendants in the absence of any fault on their part.  The trial court held that the onus of proving or the burden of proving that frustration was induced by the defendant or by their default lay on the plaintiffs.  The Court of Appeal reversed this finding holding that it was up to the defendants to establish that the frustration was not induced by their default.  The case went to the House of Lords where the Appeal was allowed the House of Lords holding that the burden of proving that there was default on the part of the owners lay upon the plaintiffs.

What we are saying that burden of proof by and large in civil cases is going to lie on the plaintiff.

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.

Burden of proof is on plaintiff in civil cases.


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