BURDEN OF PROOF & STANDARD OF PROOF

1.

2.

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
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.
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.
Omar Mohiddin V. Sikuthani
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
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.

GENERAL RULE:
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 2 nd
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 misdirection. 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 prosecutions 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 prisoners 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 entertained.
BURDEN OF PROOF IN CIVIL CASES
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.
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.

EXCEPTIONS TO THE GENERAL RULE IN CIVIL CASES

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.

4.

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
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.
EXCEPTIONS TO GENERAL RULE IN CRIMINAL CASES
The general rule is that the burden of proof lies with 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 when the burden shifts to an accused?

S. 111 (1) K
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

1.
2.
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4.

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
A statute can place a burden of proof on an accused person and it can do this either
explicitly or implicitly.
A statute may be construed as imposing the burden of proof on an accused person
but such a construction depends on the particular legislation.
The statute however cannot be taken to impose the duty on an accused to prove his
innocence in a criminal case.
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

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.

There are other statutes apart from the Evidence Act that place burden of proof on the
accused.
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.
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.
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.
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 the burden of proof lies on the
prosecution.
Section 108 incidence of the burden of proof. EVIDENTIAL BURDEN It lies on that
person who would fail if no evidence is adduced.
STANDARD OF PROOF
The question is what level of cogency or conviction should evidence attain before the
court can act in favour of the person who bears the burden of proof.
In criminal cases when the burden of proof is on the prosecution the standard of proof is
beyond reasonable doubt. The question has arisen as to what is reasonable doubt?
Miller v. Minister of Pensions [1947] 2 ALL ER
In this case Lord Denning tried to explain what reasonable doubt would mean he said
the degree is well settled. It need not reach certainty, but it must carry a high degree of

probability. He continues proof beyond reasonable doubt does not mean proof beyond
a shadow of doubt the law would fail to protect the community if it admitted fanciful
probabilities or possibilities to deflect the course of justice. If the evidence is so strong
against a man as to leave only a remote possibility, in his favour which can be
dismissed with a sentence of course it is possible but not in the least probable, then
the case is proved beyond reasonable doubt.
Lord Denning continues it must carry a reasonable degree of probability but not as high
as is required in criminal cases. If the tribunal can say we think it more probable than
not, the burden is discharged but if the probabilities are equal, the burden is not
discharged. Degree of cogency in burden of proof required is less than in criminal law.
Other people have said that reasonable doubt is the doubt of men of good sense not of
imbeciles or fools. NOTE: In criminal cases where the accused bears the burden of
proof, we have already stated that the standard of proof is on a balance of probability.
The standard of proof in civil matters is on a balance of probabilities. The civil cases
where a higher standard of proof is necessary is in:
a) Cases alleging fraud
b) Matrimonial causes especially pleading adultery as a ground for divorce
c) Election petitions
Where you have cases of fraud for instance if the allegation involves criminal conduct,
the degree required is going to be higher. There is a spectrum level of degrees.
R.G. Patel v. Lalji Makanji [1957] E.A. 314
The court in this case stated that allegations of fraud must be strictly proved although
the standard of proof may not be so heavy as to require proof beyond reasonable doubt,
something more than a mere balance of probabilities.
In a matrimonial offence, there is a variation in the standard of proof. If you are relying
on adultery to get your divorce, the standard of proof is beyond reasonable doubt, you
have to catch them flagrante delicto.
In Wangari Mathai v. Andrew Mathai it was stated that if you are relying on the
offence of adultery the court must prove guilt beyond reasonable doubt or so as to feel
sure that the guilt had been proved. The Appellant had argued that there was no direct
evidence of adultery and on Appeal it was argued that the degree of adultery had not
been proved but the decision was upheld. The court relied on circumstantial evidence
to find guilt.
STUDENTS MUST READ THE HANDOUTS GIVEN IN THIS TOPIC TO
UNDERSTAND AND DISTINGUISH BETWEEN LEGAL BURDEN AND EVIDENTIAL
BURDEN