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JUDICIAL NOTICE

Judicial notice is defined as what judges see or the liberty accorded a judicial officer acting as such to recognise the existence or non-existence of certain facts or phenomena without calling for evidence.

On what basis will Judicial Notice be allowed: -

1.            The habit or customs of the court and this relates to the authenticity for instance of certain signatures.  You don’t have to prove the authenticity every time they come to court.   Seals of the court you don’t have to prove their authenticity because the court habitually uses the seal.  The names and official designation of high ranking officers past and present; International relations of a country if Kenya is at war with a country judges are expected to know;

2.            Where statutes decree that certain things be judiciary noticed e.g. certain certificates that judges will decree should be taken judicial notice of;
3.            Need to make things workable e.g. the practice of the court, how the court conducts itself is taken judicial notice of.  Ordinary rules of reasoning don’t need evidence to be proved.

4.            Basis of judicial notice is that of matters that are known by everybody e.g. judges would know that if you imbibe certain liquids you can get intoxicated this is commonly known.  One cannot assume that judges are so ignorant that they won’t know what everybody else knows.

The effects of judicial notice Section 59 of the Evidence Act
“No fact of which the court shall take judicial notice need be proved.

Judicial notice dispenses with proof.

Section 60 enumerates matters that the court should take judicial notice of.

60.             (1)       The courts shall take judicial notice of the following facts:-
(a)          All written laws, and all laws, rules and principles, written or unwritten, having the force of law, whether in force or having such force as aforesaid before, at or after the commencement of this Act, in any part of Kenya;

(b)          The general course of proceedings and privileges of Parliament, but not the transactions in their journals;

(c)          Articles of War for the Armed Forces;

(d)          The public seal of Kenya; the seals of all courts of Kenya; and all seals which any person is authorized by any written law to use;

(e)          The accession to office, names, titles, functions and signatures of public officers, if the fact of their appointment is notified in the Gazette;

(f)           The existence, title and national flag of every State and Sovereign recognized by the Government;

(g)          Natural and artificial divisions of time, and geographical divisions of the world, and public holidays;

(h)          The extent of the territories comprised in the Commonwealth;

(i)            The commencement, continuance and termination of hostilities between Kenya and any other State or body of persons;

(j)            The names of the members and officers of the court and of their deputies, subordinate officers and assistants, and of all officers acting in execution or its process, and also of all advocates and other persons authorized by law to appear or act before it;

(k)          The rule of the road on land or at sea or in the air;

(l)            The ordinary course of nature; Preston Jones V. Preston Jones – Preston went abroad and resided there for 9 months and therefore had no nuptial intercourse with his wife.  3 months after he came back, a baby was born to his wife fully mature.  He petitioned for divorce on the grounds of adultery.  Relying on the evidence that the ordinary course of nature i.e. that human gestation period was 9 months and not 12 or 3 months.  The court held that the matrimonial offence of adultery was not proved.  In the words of judges “though the court took judicial notice of the normal life of human gestation period, it was not completely ruled out that there could be abnormal periods of human gestation.

(m)        The meaning of English words;

(n)          All matters of general or local notoriety; (things that everyone knows)
(o)          All other matters of which it is directed by any written law to take judicial notice.

Should we take judicial notice of customary law?

Kimani Gikanga


The issue arose as to whether in a dispute involving customary law whether customary law should be taken judicial notice of.  Judges were of the opinion that the party that seeks to rely on the customary should prove that customary law as a matter of fact by calling expert witnesses.  This is because of the difficulty of establishing what the customary law is at any given time since it is unwritten.

Section 18 of the Magistrates Act
Magistrates are allowed to take Judicial Notice of customary law without having to call for proof for it and if there is a dispute, then it will have to be established by proof.  If customary law is a disputed tenet, then there is need for proof.  If there are contestations then proof will have to be called.

Section 60 (1) (b)     Judicial Notice should be taken of the general course of proceedings and privileges of parliament, but not the transactions in their journals. 

The court need not call for evidential proof of privileges accorded to parliament.  These provisions however exempts from judicial notice transactions in parliamentary journals.  Whatever is recorded in the Hansard is not going to be taken judicial notice of.

Section 60 (1) (c) -   Judicial Notice should be taken of articles of war for the Armed Forces.

Section 60 (1)(e)      -           the public seal of Kenya; the seals of all courts of Kenya; and all seals which any person is authorized by any written law to use;

Section 60 (1) (f) - The accession to office, names, titles, functions and signatures of public officers if the fact of their appointment is notified in the Gazette;

Section 60 (1) (g) the existence, title and national flag of every State and Sovereign recognized by the Government; this is to avoid embarrassment.
Section 60 (1) (h) Natural and artificial divisions of time, and geographical divisions of the world, and public holidays;

Section 60 (1)(i) The extent of the territories comprised in the commonwealth;

Section 60 (1)(j)        the commencement, continuance and termination of hostilities between Kenya and any other State or body of persons;

Section 60 (1)(k)       the names of the members and officers of the court and of their deputies, subordinate officers and assistants, and of all officers acting in execution of its process, and also of all advocates and other persons authorized by law to appear or act before it;

Section 60 (1)(l)        the rule of the road on land or at sea or in the air;

Section 60 (1)(m) the ordinary course of nature;

Section (1)(n)            the meaning of English words;

Section (1)(o)            all matters of general or local notoriety;

Section (1)(p)            all other matters of which it is directed by any written law to take judicial notice.

PRESTON JONES  VS PRESTON

Preston went abroad and resided there for 9 months and therefore had no nuptial intercourse with his wife.  3 months after he came back, a baby was born to his wife fully mature.  He petitioned for divorce on the grounds of adultery.  Relying on the evidence that the ordinary course of nature, human gestation was 9 months not 12 months or 3 months.  The court held that the matrimonial offence of adultery was not proved.  In the words of the judges, “though the court took judicial notice of the normal life of human gestation, it was not completely ruled out that there could be abnormal periods of human gestation.

Re Oxford Poor Rate Case:


Burns V. Edmund


In this case Crichton J. halved the conventional award of damages for loss of expectation of life to the wife of a deceased criminal after taking judicial notice of the fact that “the life of a criminal is an unhappy one.”

 
 
 

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