What are the circumstances you have the burden of proof lying on the respondent?   These are provided for in S. 112 which relates to facts within the special knowledge of a party to the proceedings.
1.    It is to the effect that if it is alleged that the facts are especially within the knowledge of a party, the burden of proving those will lie on such party.
 So it may happen that in the course of proceedings, there are certain facts that happen to be within the special knowledge of the respondent and the burden on prove will be on the respondent.

The second exception is contained in S. 115 of Evidence Act which relates to disproving apparent special relationship.  This section is to the effect that,
2.    When there is an apparent relationship between 2 or 3 people, the burden of proving that there is no such relationship is on the person alleging that the relationship does not exist. 
For instance if the question is whether there is a party averring that that there is no relationship between for instance a landlord and tenant.

S. 116 this relates to disputing ownership.

3.    This section is to the effect that when you are shown to be in possession of anything, the burden of proving that you are not the owner of that which you possess will be on the person alleging that you are not the owner.  This exception is explained away on the difficulty that one might visit on the people who would be under threat of people coming in and disputing ownership.

Section 117 which deals with prove of good faith
4.    Where there is a question as to the good faith of a transaction between parties one of whom stands to the other in the position of active confidence, the burden of proving good faith of the transaction is on the person who stands in the position of active confidence in relation to the client.


The burden of proof lies in the prosecution

The constitution in article 50 provides that a person charged with any offence is presumed to be innocent unless he pleads guilty or is proved guilty by the prosecution.  This provision imposes burden of proof on the prosecution.  It is up to the prosecution to prove the guilt of the accused unless the accused pleads guilty.  Where one pleads guilty, there is no contestation. This section saves the statutory provisions that there might impose burden of proof on accused persons on specific facts.

What are the instances where specific facts require to be proved by an accused?

S. 111 (1) K. E.A.

1.    If you are charged with an offence and you are in a position of claiming that you are exempted from liability for that kind of offence, it is your duty to bring the circumstances to the notice of the court.  It is incumbent upon you to prove a fact.  There is a derogation that the burden of proof in criminal cases lies on the prosecution.  For instance if you have diplomatic immunity you must bring it to the attention of the court for the exemption.

R. .v, Hunt (1987) 1 ALR 1

The accused was charged with unlawful possession of a prohibited drug.  The relevant statute provided that it would not apply to any preparation containing not more than 0.2% of the drug.  The defence submitted that there was no case to answer since the prosecution had not adduced evidence as to the percentage of the prohibited substance found on the accused.  The defence was overruled and on appeal the court of appeal dismissed the appeal but at the House of Lords it was stated that
1.            A statute can place a burden of proof on an accused person and it can do this either explicitly or implicitly.
2.            A statute may be construed as imposing the burden of proof on an accused person but such a construction depends on the particular legislation.
3.            The statute however cannot be taken to impose the duty on an accused to prove his innocence in a criminal case.
4.            Public policy in this particular case favoured the position that the burden of proof was on the accused person.

The Appeal was allowed.

2.         S. 111 (2) (c) intoxication or insanity

2.    The accused bears the burden of proof of intoxication or insanity if an accused person claims that he was so intoxicated as to be insane, he has to prove that but 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 an intent.

Godiyana Barongo s/o Rugwire v. R

Defence of insanity through intoxication

The burden resting upon an accused person when attempting to rebut a natural presumption which must prevail until the contrary is proven will never be the same as that resting upon the prosecution to prove the facts which they have to establish.  It will not be higher than the burden which rests on a plaintiff in civil cases.    

Nyakite s/o Oyugi v. R[1959]

In this case the evidence of the defence and the prosecution showed that the accused was intoxicated but the accused did not raise intoxication as a defence.  The trial judge said that the burden of raising a defence of intoxication so as to negative intent was on the accused person.  On Appeal, it was held that this statement was a misdirection and that the onus of establishing a defence is not on an accused person, if there is evidence of intoxication the court must consider it and determine whether it negative intent.  The prosecution has to show that the intoxication was not as high as to negative intent.

Nyamweru s/o kinyaboya v. R. (1953)

The appellant was in an advanced state of intoxication when he killed his wife with a knife.  He was convicted of murder.  On Appeal it was held that whilst the plea of intoxication is a matter for the defence, there can be circumstances pointing to such a condition arising out of the prosecution case.  The use of a lethal weapon may indicate a malicious intent but it is not conclusive of an intent to murder.  It gave an example where the accused is so drunk that they are not able to form the intent not withstanding the use of a lethal weapon.

Malungu s/o Kieti v. R

Where the accused was convicted of murder and evidence established that the appellant was drunk by the time he killed.  The assessors were of the opinion that the appellant was incapable of forming the intent necessary to constitute the offence of murder but the trial judge took the view that the onus of rebutting the presumption that he was capable of forming the necessary intent to kill was on the appellant.  On Appeal it was held 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 prosecution.

R  v. Kamau s/o Njoroge

R v. Saidi Kabila Kiunga

There are other statutes apart from the Evidence Act that place burden of proof on the accused.
  1. The Public Order Act which is to the effect that the burden of proving lawful or reasonable excuse or lawful authority is upon the person alleging the same.
  2. The Prevention of Corruption Act Cap 65 which provides that any money paid or gift given to a public servant shall be deemed to have been paid or offered corruptly as an inducement or reward unless the contrary is proved.
  3. The Immigration Act, which is to the effect that in any proceedings under the Immigration Act if the question in issue is
(i)                    whether a person is or is not a citizen of Kenya, or
(ii)                   whether or not a person is a diplomat or wife of child of such or
(iii)                 whether or not any person has been issued or granted a passport, certificate, entry permit, pass, authority or consent under the Act or
(iv)                 whether or not any person is at any time entitled to any such issue of right the burden of proof will lie on the person contending that they are so entitled.

  1. The Public Health Act, - every person while suffering from a venereal disease in any communicable form or continues in employment in or about any factory shop, hotel, restaurant, house or other place in any capacity entailing the care of children or handling of food of food utensils intended for use of consumption by any person shall be guilty of an offence unless he proves that he did not know or suspect or had no reasonable means of knowing or suspecting that he was so suffering.  It is an offence for any person to employ such a person, the defence would be for the employer to prove that they did not know that the employee was sick.

  1. Stock and Produce Theft Act – any person who has in his possession any stock reasonably suspected of being stolen or unlawfully obtained shall if he fails to prove to the satisfaction of the court, that he came by the stock lawfully shall be guilty of an offence and liable to conviction.

  1. Wildlife Conservation & Management Act – it is an offence to be found with or to be dealing with Game Trophies and the person charged under this Act has the burden of proving lawful possession for dealing with such gain.

Those are the exceptions to the general rule that he burden of proof lies on the prosecution.

Section 108 E.A incidence of the burden of proof.  It lies on that person who would fail if at all …


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