Read Sections Section 64 – 106 Evidence Act Cap 80 Laws of Kenya

Sections 65, 66 79  - the whole question of how proof of documentary evidence differs from oral evidence.  How do you prove a private document from a public document.  When is secondary evidence of documents permissible
Use of extrinsic evidence in interpretation of documents.

What is a document?

No definition of document in Kenya Evidence Act

As a general definition, OSBORN defines document as:-
“Something on which things are written, printed or inscribed and which gives information; any written thing capable of being evidence.”

India Evidence Act
“any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.”

Tanzania Evidence Act
“Document” means any writing, handwriting, typewriting, printing, Photostat and every recording upon any tangible thing, any form of communication or representation by one of those means, which may be used for the purpose of re-cording any matter provided that such recording is reasonably permanent and readable by sight.”

Define a Document

There is no definition of a document in the Evidence Act Cap 80 and so the definition we shall use is from a dictionary

A document is any written thing capable of being evidence irrespective of where such writing is inscribed.

Interpretation and General Provisions Act Cap 2 defines a document as including any publication in any matter written, expressed or described upon any substance by means of letters, figures or marks or by more than one of those means which is intended to be used or may be used for the purposes of recording the matter.

A document covers a broad spectrum of things, it could be what might be written on a tomb stone, it could still satisfy the definition of a document, even a tattoo on someone’s body.
For purposes of evidence documents are divided into 2

1.                  Private Documents;
2.                  Public Documents;

A Public Document is defined at S. 79 (1) (a) it is defined to include documents forming the acts or recording the acts of the sovereign authority; they will be also documents of official bodies and tribunals.  They will be records of or recording acts of public officers whether legislative, judicial or executive, whether of Kenya or of any other country.

Under S. 79(2) All documents other than public documents are private. it is decreed that public records which are kept of private documents would also constitute public documents.  For instance at the Registry of Births and Deaths people get documents that are private in nature but the Registrar has a record of what birth certificates or deeds have been issued so the register of these private documents would constitute a public document.

They are all documents, which do not fall within the definition of public documents.  They do not constitute what is defined at S. 79 (1) (a) and (b).  For example where you have a record of a contract between two parties, that would be a private document.

The question then is what to do when faced with a document as evidence.  The first thing is to establish whether a document is genuine.  Is it a true record of what the parties agreed to?

How do you proof that a document is genuine  - this will be predicated on whether it is a public or private document.  For public documents, it is easy because the law has devised presumptions in relation to public documents.  Public documents are much to deal with in terms of genuineness because of the presumptions that relate to public documents.

For private documents there is a distinction whether they are attested or not attested.  Attestation signifies the witnessing of appending of a signature to a document and this act is used to differentiate private documents.  Where you have attested documents, you get into an inquiry whether it was attested, because the parties opted to have it attested to.  You distinguish documents attested to as a legal requirement and those attested to because the parties chose to have them attested.  Where for example you have a land sale or mortgage, there is a legal requirement that they be attested.

To prove the execution of an attested document, you need to call the attesting witness.  The party that witnessed the appending of the signature to that document only if they are alive, capable of giving evidence and subject to the court proceedings.  What might make one unable to give evidence? If a person is deranged or have lost their memory, they cannot give evidence.  Section 71 of Cap 80.

Why does one call the attesting witness? To give benefit to the other party by giving them an opportunity to cross-examine the attesting witness as to the circumstances in which they attested the document.  The law has devised certain instances when it is not necessary to call the attesting witness.  There are at least 7 instances.
1.                  Where the document has been registered in accordance with legal provisions, the assumption is that by the time the document was registered, the matter of attestation was looked into and is therefore a non-issue.  This is provided for as the proviso to Section 71 which reads “if a document is required by law to be attested it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there is an attesting witness alive and subject to the process of the court and capable of giving evidence.”  The proviso “provided that it shall not be necessary to call an attesting witness in proof of the execution of any document which has been registered in accordance with the provisions of any written law, unless its execution by the person by whom it purports to have been executed is specifically denied.”
If there is no contestation, then you do not need to call the attesting witnesses.  The calling of attesting witnesses would be a waste of the court’s time.

2.         If the execution of the document is admitted by the executant; i.e. where the person who is bound by the document is not contesting the validity of the document.  This is provided for at S. 73 of the Evidence Act.  “the admission of a party to an attested document, of its execution by himself, shall be sufficient proof of its execution as against him, though it be a document required by law to be attested.

3.         If the attesting witness denies or does not recall the fact of having attested the document, there is no need to call the witness and the document has to be proved by other evidence. Section 74.

4.         Where the document is in the possession of the adverse party who refuses to produce it after a notice to produce has been given, you need not call the attesting witness. In that case secondary evidence of the document may be tendered.  Allowing secondary evidence is an exception and by allowing secondary evidence you are dispensing with need to call the attesting witness and the adverse party knows that the document will be against his/her best interest.

5.         When the document is 20 years old and is produced from proper custody, it is presumed by the court to have been attested to and executed by dint of its age.

6.         When the apparent or ostensible executor of the document has been using it in other cases it is assumed to be a valid document.  The Executor is basically saying that all is fine with the document.

7.         When the adverse party produces a document, which he claims an interest under the document in question then the document won’t need to be attested. (the adverse party validates the document)

If a document does not fall within the 7 instances and where the attesting witness is not available or where the attesting witness is incapable of giving evidence, then to prove the document, it has to be established that the attestation of one attesting witnesses is in his/her handwriting.  This is provided for at Section 72 which reads “ where evidence is required of a document which is required by law to be attested and none of the attesting witnesses can be found, or where such witness is incapable of giving evidence or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.”

How do you prove Handwriting?

Section 70 buttresses the points aforementioned.  

Handwriting can be proved in 4 ways

1.                  Where the writer of the document testifies that the document is in their handwriting.
2.                  You may need to call a witness who has acquired knowledge of a person’s handwriting this is done in different ways
(i)                             If you have seen the person write; there has to be proximity
(ii)                           If you’ve been receiving documents purporting to have been written by that person in answer to documents written by you or under your authority, you can be said to have acquired knowledge of that person’s handwriting;
(iii)                         When in the ordinary cause of business, documents purporting to have been written by that person have been submitted to you.  For instance, if you are a person’s secretary or copy typist, documents written by that person would be submitted to you.

3.                  Calling an expert which is provided for in S. 48 of the Evidence Act, you need to compare documents admitted as evidence with documents written by that person.

4.                  Comparison by the Court under the provisions of Section 76 of the Evidence Act.  This is where you call the person to write in court and then the court will compare the handwriting with that in the document in court.

5.                  You can prove handwriting if parties against whom document is tendered admit that the handwriting on the document in question is that of the person who is purported to have written it.

With public documents, proof of their genuineness is not as complex because of the presumptions that there are about public documents.  The presumptions help to dispense with prove.  Look at section 82 through to 96. 

The principle with regard to public documents is established at Section 80.  Public Documents may be proved by certified copies.  Under S. 80(2) there is definition of who the public officer would be.   “any officer who by the ordinary course of official duty is authorised to deliver copies of public documents shall be deemed to have the custody of such documents within the meaning of this section.”

Under Section 81 certified copies of a public document may be produced in proof of the contents of the document.

What is a Public Document?

In the case of Tootal Broadhurst Lee Co. Ltd v. Ali Mohammed [1954] 24 K.L.R 31 This was a case for damages for infringement of a design registered in Great Britain.  The Plaintiff relied on a document bearing the seal of the patent office of Great Britain purporting it to be a copy of the certificate of registration of the design.  Two questions arose, was the document a public document which could be proved through certified copies?  Whether you would need to have the document itself or did a certified copy suffice.  The court held that the certificate of registration being a document issued by authority of law, by a public officer is necessarily a public document.  Secondly, that a certificate of registration does not come within the category of public documents which can be proved with means of certified copies.  Essentially what the court was ruling is that this was not a public document within the meaning of S. 80(1) and could not be proved by a certified copy
In the words of the court
It is not however, all public documents that can be proved by means of certified copies but only those which any party has a right to inspect.”

Essentially even though a document may seem public.


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