EVIDENCE LAW
GPR 215
LESSON 4: Burden and Standard of Proof
1
Overview
Revisit the meaning of “Proof”. When is a matter said to have been proven
Burden of Proof:
● General Meaning of “Burden of Proof”
1. The Legal Burden
2. The Evidential Burden
● Illustrations
● The Shifting of Burden of Proof
Standard of Proof:
● Civil Cases
● Criminal Cases
● Special/sui generis cases 2
Burden of Proof
Revisit “fact in issue” and “proof”
Facts which require proof depend on the nature of the case and the
allegations of the parties. Cf negligence and defamation cases.
“Burden of Proof” describes the duty which lies on one or other of the
parties to a case to establish the facts upon a particular issue.
When one meets the obligation relating to burden of proof they are said to
have “discharged” the burden of proof.
Types of Burdens of Proof
A trial normally involves two principal types of burdens of proof,
namely:-
a) Legal burden of proof ; and
b) Evidential burden
Legal Burden of Proof
The legal burden is the obligation imposed on a party by law to prove a fact
in issue to the standard required in law.
The legal burden of proof is therefore the legal obligation imposed on a party
to establish the facts and contentions which will support that party’s case.
Legal Burden of proof is at the outset and till the end on the party wishing
the trier of facts to make a determination of a fact in issue in their favor
Legal Burden of Proof contd..
The legal burden is the ultimate burden, hence when a party
discharges the legal burden of proof in respect of a fact in issue they
are said to have proved their case/defence as regards the fact in issue.
Note: cases involve more than one fact in issue and the legal burden
of proof in relation to those issues may be distributed between the
parties to the action. To illustrate, in a negligence claim, the legal
burden to prove duty of care, breach of duty and damage is upon the
Plaintiff, and legal burden to prove contributory negligence is upon
the defendant.
Legal Burden of Proof contd
Whether a party has discharged the legal burden is decided only once
by the trier of fact, usually at the end of the case when both parties
have called all their evidence.
The effect of failure to discharge the legal burden of proof on a fact in
issue is the certainty of losing on that fact in issue. The fact in issue may
be so important that it makes the party lose the case. Consider again
failure to prove “duty of care” in a negligence suit.
EVIDENTIAL BURDEN OF PROOF
The phrase “evidential burden” refers to the obligation on a party to
adduce evidence capable of supporting/sustaining, but not necessarily
proving, a fact in issue.
The evidential burden falls at the outset of the proceedings on the
party who puts forth their case first. Once that party has adduced
evidence to the extent that it is necessary for the other party to rebut,
the burden shifts to the other party.
Evidential Burden therefore initially coincides with the legal burden
8
Evidential Burden
Evidential burden falls on the party who may lose on a fact in issue if no
evidence at all is adduced on that fact in issue. See Section 108 of the Act
Compared to legal burden of proof, failure to discharge the evidential
burden of proof carries with it the risk (but not the certainty) of failure on
the fact in issue in respect of which the burden has not been discharged.
The evidential burden of proof is discharged when it becomes necessary
for the other party to adduce evidence in rebuttal. Party A is said to have
discharged their evidential burden of proof once it becomes necessary for
Party B to adduce evidence to rebut evidence already adduced by Party A.
General Rules
The general rule as to the legal burden of proof is
commonly expressed in the terms “he who asserts must
prove.”
The rule is captured under S.107 and 109 of the Act. He
who wants the Court to make a determination of a fact in
issue in their favour must prove that fact.
Exceptions to the General Rule
a) Where there is a rebuttable presumption of law in favour of one party, the
burden of rebutting it lies on the other party e.g. presumption of death;
b) where the truth of a party’s allegation lies peculiarly within the knowledge of
his opponent, the burden of disproving it often lies upon the latter. Eg where
university records are required by a student to prove class attendance;
c) In criminal matters – the prosecution bear the legal burden of proving the guilt
of an accused person
Burden of Proof in Criminal Cases
In criminal cases the legal burden of proving any fact essential to
the prosecution’s case rests upon and remains with the prosecution
throughout the trial.
This rule was stated by Lord Sankey LC in Woolmington v DPP
[1935] A. C. 462 HL at pp. 481-2 case follows
Woolmington vs DPP
“Throughout the web of the English criminal law one golden thread is
always to be seen - that it is the duty of the prosecution to prove the
prisoner's guilt subject to what I have already said as to the defence of
insanity and subject also to any statutory exception. If, at the end of and
on the whole of the case, there is a reasonable doubt, created by the
evidence given by either the prosecution or the prisoner, as to whether
the prisoner killed the deceased with a malicious intention, the
prosecution has not made out the case and the prisoner is entitled to an
acquittal…
Criminal Cases
The accused person may have an evidential burden of proof in
respect some of the allegations against them but not a legal burden
to prove their innocence. However the legal burden to prove the
guilt of an accused person always remains with the prosecution.
The accused person has no burden to prove their innocence.
The purpose of the accused person adducing evidence in their
defence is to cast doubt on the case presented by the prosecution.
Criminal Cases
A number of statutory provisions have what may appear to be shifting
the burden of proof to the accused person. Examples include:
1. Under S 109 of the Evidence Act - Where a statute places the legal
burden of proof on a particular issue on the accused person
2. Under S. 111 of Evidence Act
● where the fact in issue is especially within the knowledge of the
accused person
● where the accused asserts the existence of circumstances bringing the
case within any exemption or exception
● Where the accused pleads the defences of insanity or intoxication
Criminal Cases
3. Section 132 of the Penal Code provides as follows:
“Any person who, without lawful excuse, the burden of proof whereof shall be upon him,
utters, prints, publishes any words or does any act or thing, calculated to bring into
contempt, or to excite defiance of or disobedience to, the lawful authority of a public
officer, is guilty of offence and is liable to imprisonment for a term not exceeding three
years.”
Consider Robert Alai vs Attorney General Constitutional Petition No 174 of 2016
Alai challenged the constitutionality of a charge of undermining the authority of a
public officer under S. 132 of the Penal Code when he posted on twitter the
words “Insulting Raila is what Uhuru can do. He hasn’t realized the value of the
presidency. Adolescent President. This seat needs maturity.”
Criminal Cases
In Robert Alai vs Attorney General Constitutional Petition No 174 of 2016 the court
stated as follows regarding Section 132 of the Penal Code
The impugned Section 132 provides that a person charged under that section has the burden to
prove that he/she uttered, printed or published the words with a lawful excuse. That clearly shifts
the burden of proof of the lawfulness of the acts complained of to the accused. It is always the
duty of the prosecution to prove a criminal case against the accused, a burden that never shifts.
To the extent that the section derogates the right to a fair hearing by shifting the burden of proof
to an accused is, contrary to Article 50(2)(a) of the constitution. An accused has a right to
remain silent during his trial, and not to say anything that would incriminate him
Criminal Cases
4. Section 66(2) of the Penal Code : “…it shall be a defence to a charge [of alarming
publication] under subsection (1) if the accused proves that, prior to publication, he took such
measures to verify the accuracy of the statement, rumour or report as to lead him reasonably
to believe that it was true.”
See decision in Cyprian Nyakundi vs ODPP [2021]eKLR where court declared the above provision
unconstitutional to the extent that it disingenuously shifts the burden of proof from the
prosecution to the accused person. [it] places the burden of establishing innocence on the
accused person…The requirement shifts the responsibility of proving innocence upon the
accused person. Once the legal burden shifts it presents an issue of unconstitutionality for
contravening the principle of presumption of innocence until the contrary is proved.
Criminal Cases
5. Section 20 (2) 22 (3) of the Sexual Offences Act (on incest): “An accused person shall be
presumed, unless the contrary is proved, to have had knowledge, at the time of the alleged
offence, of the relationship existing between him or her and the other party to the incest.
6. Section 153 (2) of the Penal Code: “Where a male person is proved to live with or to be
habitually in the company of a prostitute or is proved to have exercised control, direction or
influence over the movements of a prostitute in such a manner as to show that he is aiding,
abetting or compelling her prostitution with any other person, or generally, he shall unless he
satisfies the court to the contrary be deemed to be knowingly living on the earnings of
prostitution.”
Alibi Criminal Cases
In Sharma & Another v Uganda [2002] 2 EA 589 (SCU), the appellant had pleaded the
defence of alibi, which was rejected by the trial judge on the ground that the defence
did not create any doubt in his mind as to the presence of the accused at the murder
scene. It was held that “It was the duty of the prosecution to disprove the alibi and place
the accused at the scene of crime.
In Michael Mumo Nzioka v Republic [2019] eKLR the High Court in Kenya stated
that
“It is trite law that when an accused raises the Defence of alibi at whatever stage of the trial,
he does not assume the burden of proving the alibi. The burden lies on the prosecution. It is
for the prosecution to call evidence to displace the alibi even if the same is raised at the
Defence stage”.
Negative Assertions in Civil Cases
Generally, in civil cases the legal burden of proof lies on the party who
asserts the affirmative of an issue (based on the pleadings). In a negligence
suit, for instance, the plaintiff bears the legal burden of proving existence of
duty of care, breach of such duty and the loss suffered in consequence.
In considering who is asserting the affirmative of an issue, however, a court
will consider the substance and not merely the literal grammatical language
used in the pleadings.
Negative Assertions in Civil Cases
For instance in Soward v Leggatt (1836) ER 269, the Plaintiff sued his tenant and
pleaded that the latter “did not repair” the premises in question. The tenant
pleaded that he “did well and sufficiently repair” the premises in question. It was
held that “notwithstanding that the defendant’s pleading was the grammatical
affirmative, the burden of proof lay on the plaintiff, i.e. landlord”.
In Abrath v North Eastern Railway (1886) 11 App Cas 247 HL, a suit for malicious
prosecution, the plaintiff pleaded that the defendant instituted proceedings
against him without reasonable and probable cause. It was held that “the burden
was on the plaintiff to prove not only the malicious prosecution but also prima facie
the want of reasonable and probable cause.”
STANDARD OF PROOF
It is a measure of the extent to which the trier of facts should be persuaded by the
evidence tendered.
According to Black’s Law Dictionary it is a measure of “the quality of evidence that a
party must bring forward [in order] to prevail”
It is not a measure of “quantity” but rather “quality”.
Standard vary depending on the type of case i.e. criminal, civil or sui generis
The difference in standards is informed by what is at stake and the standing of parties
as against each other
STANDARD OF PROOF
In Civil Cases
In civil proceedings, the party bearing the legal or evidential burden of proof must
prove his case on a balance of probabilities (some authors describe the applicable
standard as the preponderance of the evidence or preponderance of probabilities).
The standard was defined by the CAK in the case of Kanyungu Njogu vs Daniel
Kimani Maingi [2000] eKLR as follows:
when the court is faced with two probabilities, it can only decide the case on a
balance of probability, if there is evidence to show that one probability was more
probable than the other.
By this measure the court will find for the party that has the stronger evidence
however slight the edge may be over the opponent. (Blacks Law Dictionary)
STANDARD OF PROOF
In Civil Cases
In Re H (Minors) [1996] AC 563 at 586, Lord Nicholls provided the following
definition
"The balance of probability standard means that a court is satisfied an
event occurred if the court considers that, on the evidence, the occurrence
of the event was more likely than not.
STANDARD OF PROOF
In Civil Cases
In Re B [2008] UKHL 35, Lord Hoffman explained balance of probability
using a mathematical analogy:
“If a legal rule requires a fact to be proved (a ‘fact in issue’), a judge or jury
must decide whether or not it happened. There is no room for a finding that
it might have happened. The law operates a binary system in which the only
values are 0 and 1. The fact either happened or it did not. If the tribunal is
left in doubt, the doubt is resolved by a rule that one party or the other
carries the burden of proof. If the party who bears the burden of proof fails
to discharge it, a value of 0 is returned and the fact is treated as not having
happened. If he does discharge it, a value of 1 is returned and the fact is
treated as having happened.”
STANDARD OF PROOF
In Civil Cases
What if the chances of a fact alleged to have happened is equal to the
chances of it not having happened?
In this regard, in Miller v Minister of Pensions [1947] 2 All ER 372) Denning
J said "If the evidence is such that the tribunal can say 'we think it more
probable than not' the burden is discharged [the Claimant wins], but if the
probabilities are equal it is not [the Claimant Loses]."
STANDARD OF PROOF
In Criminal Cases
The standard of proof required of the prosecution in criminal cases is “proof
beyond all reasonable doubt” (see Proviso to S. 111(1) and Woolmington v
DPP).
What is the level of certainty or satisfaction required? See Denning dictum
in Miller v Minister of Pensions [1947] 2 All ER 372
STANDARD OF PROOF
In Criminal Cases
Miller v Minister of Pensions [1947] 2 All ER 372
“the degree [of proof in criminal cases] is well settled. It need not reach
certainty but it must carry a high degree of probability. 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 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 the
sentence “of course it is possible but not in the least probable” the case is
proved beyond reasonable doubt but nothing short of that will suffice.”
STANDARD OF PROOF
In Criminal Cases
Recalling that an accused person is not bound to prove their innocence, is there a
standard placed on their defence by way of evidence or explanation?
Where the legal or evidential burden on an issue lies on the accused person, he only
needs to prove the relevant fact(s) [not his innocence] on a balance of probabilities, not
beyond reasonable doubt.
See for instance the finding in Republic v Charles Gachanja [2001] eKLR where it
was held that:
“an accused person assumes no burden to prove his innocence. Any defence or
explanation put forward by an accused is only to be considered on a balance of
probabilities.”
STANDARD OF PROOF
Rationale
The rationale for a high standard of proof in criminal matters and compared to civil
matters is based on the difference in status. Charles Herman in First Book on
Anglo-American Law 562 (2d ed. 1952) explained the distinction as follows
Criminal convictions are so serious in their consequences that it is felt that an accused
person should be freed if there is any fair or reasonable doubt about his guilt, even though
there seems to be considerable likelihood that he did commit the crime…in civil cases,
however the consequences of losing a case although serious enough in many cases, is not
considered to be such as to require so stringent a rule.
The rationale for high standard of proof in criminal matters is also seen in the
Blackstone's Ratio (also known as the Blackstone's Formulation) which is the idea that: It
is better that ten guilty persons escape than that one innocent suffer. ("Commentaries on the
Laws of England". J.B. Lippincott Co., Philadelphia, 1893.)
STANDARD OF PROOF
Rationale
The rationale for criminal cases also draws from the doctrine of presumption of
innocence which is a constitutional doctrine. See Article 50(2)(a) of the Constitution
Scholars such as Professor Andrew Ashworth have explained it as a consequence of
disparity of arms between man and state. He opines
The presumption (of innocence) is inherent in a proper relationship between State and
citizen, because there is a considerable imbalance of resources between the State and the
defendant, because the trial system is known to be fallible, and, above all, because conviction
and punishment constitute official censure of a citizen for certain conduct and respect for
individual dignity and autonomy requires that proper measures are taken to ensure that such
censure does not fall on the innocent
STANDARD OF PROOF
In Sui Generis Cases
The question of the applicable standard of proof may be difficult in
proceedings that are not entirely civil or criminal, sui generis proceedings and
quasi-criminal proceedings or proceedings that have an element of both.
There is no general rule as to the applicable standard of proof in such cases
and hence the applicable rules can only be learnt by way of illustration. To
illustrate:
STANDARD OF PROOF
In Election Petitions
SCK in Raila Odinga & Others v The Independent Electoral &
Boundaries Commission & Others [2013] eKLR stated:
... but at the same time, a Petitioner should be under obligation to
discharge the initial burden of proof, before the respondents are
invited to bear the evidential burden. The threshold of proof should,
in principle, be above the balance of probability, though not as high
as beyond-reasonable–doubt-save that this would not affect the
normal standards where criminal charges linked to an election, are
in question.”.
STANDARD OF PROOF
In Proving Matrimonial Offences
The CAK stated in the case of A K v A W K [2000] eKLR held that
“The requirement is that the court must be satisfied that a matrimonial offence has been
proved. The Act (Cap 152) does not refer to proof beyond reasonable doubt and it would
therefore be proper to put or place the burden of proof at the level of feeling certain or sure that
a matrimonial offence has been committed”
In another case of Kamweru V. Kamweru (2000) eKLR the CAK explained itself, as follows:
“Applying the yardstick of the burden and standard of proof as set out above we would say that
the feeling of some certainty by Court, that is being satisfied as to be sure; means being satisfied
on preponderance of probability. Certainly cruelty or desertion may be proved by a
preponderance of probability, that is to say that the Court ought to be satisfied as to feel sure
that the cruelty or desertion, or even adultery (all being matrimonial offences) has been (as the
case may be) established.”
STANDARD OF PROOF
In Proving Illegality/Fraud in Civil Cases
The Court of Appeal in Kinyanjui Kamau vs George Kamau [2015] eKLR expressed
itself on this as follows:-
“…It is trite law that any allegations of fraud must be pleaded and strictly proved. … Since
the respondent was making a serious charge of forgery or fraud, the standard of proof required
of him was obviously higher than that required in ordinary civil cases, namely proof upon a
balance of probabilities; but the burden of proof on the respondent was certainly not one beyond
a reasonable doubt as in criminal cases......in cases where fraud is alleged, it is not enough to
simply infer fraud from the facts…"
Reading List
Andrew Ashworth, ‘Four Threats to the Presumption of Innocence’ (2006) 10 International
Journal of Evidence and Proof 241, 251.
